CHAPTER

1. 16 CHAPTER Employment Law And Protection of Workers

2. Income Protection Legislation • Fair Labor Standards Act (FLSA), 1938 • Applies to all businesses engaged in interstate commerce, or production of goods destined for interstate commerce • A basic provision of the FLSA is the minimum wage • Exempt categories include executives, administrative employees, professionals and outside salespersons • FLSA also requires that employees be paid time and half for work over 40 hours per week

3. Fair Labor Standards Act • The FLSA also limits child labor • Makes it illegal to employ children under 14 with a few exceptions such as delivering newspapers and babysitting • Children 14 to 16 are allowed to work but only in non-hazardous jobs and only for 3 hours on school days • Children 16 to 18 are prohibited from working in hazardous occupations

4. Social Security • Employees and employers are required to contribute to FICA (Federal Insurance Compensation Act)--on employee income up to $80,600 per year • Employers do not have to pay SS for independent contractors • SS also offers disability income to those who become disabled • SS also funds Medicare out of employee and employer “contributions”

5. Employee Retirement Income Security Act • ERISA was passed in 1974 • Designed to regulate pension plans offered by private employers • Employers not required to have a pension plan, but if they do, the plan must conform to federal regulations • Fed. Regulations prevent employees who have worked a long time from being denied pension benefits • These regulations require that an employee must be vested within 5 years of employment • Pension plans are supposed to be fully funded so that bankruptcy of the company will not present workers from collecting their pension benefits

6. Protection of Workers Who Lose their Jobs • Unemployment compensation • Administered by the states • Covers 96% of state workers • Unemployment compensation is funded by employer contributions • Employer contributions are inversely related to the stability of the employer’s workforce • In order to qualify for unemployment compensation the employee cannot have quit voluntarily or have been discharged for misconduct • Misconduct does not mean incompetence, but rather willful behavior such as fights or insubordination

7. Retention of Health Benefits • The Consolidated Omnibus Budget Reconciliation Act(COBRA) of 1985 • Allows terminated workers, for whatever reason to retain company health benefits for 18 to 36 months • Employees have to pay for the premiums • Health Insurance Portability and Accountability Act (HIPAA) of 1996 • Allows workers to change jobs and not be excluded from coverage by the health plan of the new employer because of a preexisting medical condition

8. Retention of Health Benefits • Family and Medical Leave Act (FMLA) 1993 • Allows workers to leave for up to 3 months leave for designated medical and family crisis events • The leave is unpaid but the employees are entitled to return to their jobs • Does not apply to workers in the top 10% of wage earners for the company • Only applies to employers who have more than 50 employees • In general the employer is entitled to be notified 30 days in advance, but there are exceptions if the medical situation is sudden or unexpected

9. Worker Safety Legislation • Workers Compensation Statutes • Are state statutes in every state • If a worker is injured on the job, the employer is liable • Damages are fixed by statute • Financed by employer contributions • Employers who have fewer accidents on the job are taxed less than those who have more on the job accidents

10. Workers Compensation Statutes • In order to qualify the injury has be an on the job injury • In most states the injuries can be gradual and do not have be the result of an accident • Self-inflicted on the job injuries are not covered but injuries that occur because employee negligence are covered • If the employer was responsible for the injuries, the employee can sue in civil court • Generally the state statutes of limitations for filing worker compensation claims are between 60 days and 2 years of the time when the on the job injuries are apparent

11. Occupational Safety and Health Act • OSH Act was passed in 1970 • Created Occupational Safety and Health Administration (OSHA) • Known for its voluminous regulations but the OSHA has been very successful in reducing on the job injuries and deaths • The OSH Act imposes a general duty on employers to maintain a safe work site • Most on the job risks are subject to very specific regulations from OSHA

12. Occupational Safety and Health Act • Worker safety is protected by three separate federal agencies • OSHA, which is charged with issuing worker safety regulations, making inspections and enforcing the OSH Act • National Institute of Occupational Safety and Health (NIOSH)—primarily a research center for worker safety issues • Occupational Safety and Health Review Commission (OSHRC)—adjudicates actions taken by OSHA to enforce its regulations • At the adjudicatory proceedings, the presiding ALJ determines the facts and if the facts indicate a violation of OSHA regulations

13. Occupational Safety and Health Act • OSHA officials are often contacted by employees or unions about unsafe working conditions • The OSH Act has anti-retaliation provisions (whistle-blower protection) that prevent employer sanctions taken against those who report what they believe are violations of the OSH Act • When there is no time to contact an OSHA official and an employee is confronted with he believes is an imminently dangerous situation, the employee can refuse to work without employer reprimand • Employers are required to report to OSHA injury and illnesses and all on the job deaths • Fourth Amendment applies to OSHA inspections

14. Industrial Relations • Unionization has been on decline for some time, current rate is 13% of the workforce • Greatest area of growth for unions has been among govt. workers • Labor legislation • Railway Labor Act of 1926—first Act of Congress that recognized worker rights to organize • Norris LaGuardia Act of 1932— • Outlawed yellow dog contracts • Restricted rights of courts to issue injunctions when peaceful strikes were taking place

15. National Labor Relations Act, 1935 • NLRA is comprehensive legislation that provides parameters for industrial relations between labor and management • NLRA established worker rights to organize, strike, and engage in bargaining agreements • NLRA specified a number of unfair labor practices including: • Interference with efforts of employees to form, join, and assist unions • Domination of a union by management • Discrimination in hiring against union supporting employees • Refusal by management to bargain collectively

16. National Labor Relations Act, 1935 • NLRA established the National Labor Relations Board, which is an industrial umpire • If a union or management believes the other side has done an unfair labor practice they can complain before the NLRB • NLRB has its own ALJ’s • Decisions of the ALJ’s can be appealed by either the company or the NLRB • Ultimately, appeals go to the Fed. Court of Appeals

17. Taft Hartley Act, 1947 • Taft Hartley Act was passed in 1947 to combat what many believed were union bullying of management • Among the practices outlawed by Taft Hartley are • Closed union shops—you have to be a union member before being hired • Secondary boycotts— • Taft Hartley also allowed states to elect to be right work states, which means that workers could not be forced to join a union even if the union won a certification election

18. Certification and Decertification Elections • An election to decide whether a union will represent workers is called a certification election • An election to remove the union as the sole bargaining representative of unions is called a decertification election • The first set in either type of election is to get at least 30% of the workers in a bargaining unit to sign an authorization card • After the card is signed a petition goes to the NLRB • NLRB determines the appropriate bargaining unit

19. Appropriate Bargaining Unit • Among the factors the NLRB looks at in determining what group of workers should be allowed to vote for a union are: • Job similarity • Geography • Conflicts of interest should be avoided • Independent contractors should be excluded

20. Certification Elections • Once 30% of the workers have signed an authorization card a campaign begins between unions reps and management • Majority rules as to whether the union will be the sole bargaining agent • If the union loses a certification election, they have to wait a minimum of one year before another election can be held • In general companies can enforce non-discriminatory no-trespass rules against non-employee union officials • Pro-union employees cannot be prevented from distributing union literature during breaks

21. Other Unfair Labor Practices • Threats against union membership • It is illegal to threaten to fire workers if they vote for a union • It is not illegal to make general statements about the fact that jobs have been lost in industries that are heavily unionized • It is illegal to discriminate against union members because they are union members • What constitutes discrimination against union members is a much debated issue

22. Decertification • To decertify a union basically the same procedure is used • 30% of the workforce must sign an authorization card • Decertification cannot be initiated by management • If the decertification election fails one year must pass before another election is held • It is an unfair labor practice for management to poll employees on the popularity of union bargaining

23. Sole Bargaining Agent • If a union is certified it means that it is the sole bargaining agent for workers • Once unions are certified management must bargain with unions about wages and other terms and conditions of employment • It is an unfair labor practicefor management to unilaterally change wages or other terms of conditions • Management cannot present their bargaining offers directly to employees when a union is certified

24. Sole Bargaining Agent • Bargaining subjects are either • Mandatory--wages and terms and conditions of employment • Must be the subject of collective bargaining • E.g., shift differentials, severance pay, paid holidays • The decision to subcontract is a mandatory topic but the decision to shut down a division is not • Employee monitoring and drug testing are mandatory topics

25. Collective Bargaining • Permissive--these are topics that can be considered in collective bargaining but are not mandatory • Refusal to bargain by the company is not considered an unfair labor practice • Examples of permissive topics include • Redefinition of bargaining unit • Benefits of retired members

26. Collective Bargaining and Strikes • Illegal subjects • Some topics are not legal to discuss in collective bargaining: • Secondary boycotts, having management representatives on union boards • Closed union shops, agreements not to file workers’ compensations claims • Strikes • Economic strikes—unions strike in order to raise wages • Increasingly, employers are hiring replacement workers during economic strikes • Employers have no obligation to rehire strikers, unless the strikers make an unconditional offer to return to work and there are vacancies left by departing replacement workers

27. Job Actions: Legal and Illegal Strikes • Economic strikes • Employers do not have to reinstate striking employees if: • The striking worker has obtained employment elsewhere • The striker was not hired for legitimate business reasons, or • The striker has engaged in misconduct during the strike • Unfair Labor Practice Strikes • The strike is called to protest actions by employers such as unjust sanctions against workers • If the striker makes an unconditional offer to return to work he or she is generally entitled to his old job back • Employers cannot permanently hire replacement workers

28. Job Actions: Legal and Illegal Strikes • Illegal Strikes • There are a number of illegal strikes such as: • Organizational strikes—a union pickets an employer to obtain recognition for the union and • Another union has already been certified, or • A certification election took place within the last 12 months and the union lost the election, or • The union has not filed a petition for an election within 30 days of the start of the picketing • Secondary boycotts—a union strikes a neutral employer to put more pressure on the original employer • E.g., Common suits picketing at construction sites

29. Illegal Strikes • Wildcat Strikes • A local union goes on strike without permission of the parent union • Often the result of an incident that occurs on the job • Strikes that violate a collective bargaining agreement • Many CBA’s have no-strike provisions together with arbitration agreements • It is possible to get a court injunction • Strikes by public employees • Public employees do not have the right to strike • Strikes that threaten national security • President is entitled to request an 80-day cooling off period for strikes that threaten national security [Taft-Hartley Act]

30. Lockouts and Public Employees • Employers have used lockouts when strikes are imminent • Lockouts are legal if the purpose of the lockout is to improve the bargaining position of employers • Lockouts are classified as unfair labor practices if the purpose is break the union through pressure to vote for decertification of the union • NLRA has no authority over public employees • Under the Federal Service Labor-Management Relations Statute (FSLMRS) all strikes or work stoppages are illegal • A public union’s certification can be revoked for encouraging a strike

31. Impact of NLRA on Non-Union Employees • NLRA provides protection from employer sanctions • when employees act in concert for their mutual benefit • Often the concerted actions of employees pertain to worker safety • Employee committees • Have been used by employers to give employees a greater sense of participation in creation and enforcement of work rules • If they bargain about wages then they become equivalent to unions • Total Quality Management (TQM) has been a target of unions

32. On the Job Privacy Issues • Drug testing • In general it is legal for a private company to impose drug testing as a condition of employment • After an employee is hired in some states there is a requirement for the company to have probable cause to require additional drug tests • Must show that the employee acted erratically on the job or there was other evidence of drug use • For public employersdrug testing is an illegal search under the 4th Amend. • There have been an increasing number of exceptions involving police or public employees whose jobs substantially affect public safety

33. On the Job Privacy Issues • Polygraph Testing • Has been generally outlawed by the Employee Polygraph Protection Act of 1988 • Exceptions: • The employee is involved in security or • Has been accused of theft and the employer is carefully follows the prescribed procedures under the Act • Psychological Testing and Counseling • Unless a guarantee is made the employee should not assume that an employer provided counselor will not be asked what took place in the counseling session

34. On the Job Privacy Issues • On the job monitoring by Employers • Software that tracks Internet cruising by employees on employer-provided computers is legal • Cameras on work sites monitoring performance are legal • Often it is prudent for employers to reveal what is being monitored • Eliminates claims of expectation of privacy • The Electronic Communication and Privacy Act (ECPA) of 1986 allows employers to monitor employee phone calls and email if • It occurs in the regular course of business or • The employee consents to the monitoring