Chapter 17

1. Chapter 17 Employment and Labor Law

2. Quotes of the Day “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 Mencken American journalist

3. Introduction • 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

4. Family and Medical Leave Act (FMLA) • 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

5. Health Insurance • 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

6. Wrongful Discharge • 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

7. Contract Law • 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

8. Tort Law • 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

9. Tort Law • Intentional infliction of emotional distress • Employers who condone cruel treatment of their workers: • Face liability under the tort of intentional infliction of emotional distress

10. Whistleblowers • 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

11. Whistleblowers • 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

12. Whistleblowers • 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

13. Employee Privacy • 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

14. Lifestyle Laws • 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

15. Lifestyle Laws • 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

16. Lifestyle Laws • 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

17. Workplace Safety • 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

18. Financial Protection • 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

19. Financial Protection • 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

20. Labor Law and Collective Bargaining • 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

21. Labor Law and Collective Bargaining • 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

22. Labor Law and Collective Bargaining • 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

23. Labor Law and Collective Bargaining • Organizing a union • Exclusivity - Under §9 of the NLRA, a validly recognized union is the exclusive representative of the employees

24. Labor Law and Collective Bargaining • 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

25. Labor Law and Collective Bargaining • 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

26. Labor Law and Collective Bargaining • 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

27. Labor Law and Collective Bargaining • 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

28. Labor Law and Collective Bargaining • 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

29. Labor Law and Collective Bargaining • 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

30. Labor Law and Collective Bargaining • 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

31. “Many decades after Congress guaranteed important labor rights, management and workers in many industries still clash over the old issues of union organization, collective bargaining, and concerted action.”