Chapter 21-Employment, Labor & Immigration Law

1. Chapter 21-Employment, Labor & Immigration Law

2. Employee Termination • Most employees are “at will” --ie. freedom to leave/terminate employment for no reason • (just not discriminatory reasons) Exceptions: Judicial Limitations on At-Will Principles: +Express/Implied Contracts from oral representations, handbooks, manuals. +Implied Good Faith/Fair Dealing Doctrines +Public Policy

3. Fair Labor Standards Act(F L S A) Minimum Wage • Covers minimum wage, overtime, child labor protection and equal pay for equal work regardless of gender. Child Labor Overtime

4. Health & Safety at Work • The Occupational Safety & Health Act (OSHA) requires employers to provide a workplace free of “recognized hazards causing or likely to cause death or serious harm to employees.” OSHA, a federal agency, has been created to ensure compliance. OSHA promulgates standards, investigates violations, & issues variances (permanent & temporary). Ergonomics--- alter workstations and workplace designs --very costly

5. Employees still have the right to sue 3rd parties for their injuries The Trade Off-- Worker’s Compensation was a compromise in which the employee no longer had to sue the employer to get medical coverage and lost wages. However, in return the employer’s liability was limited to medical care and lost wages (usually 1/2-2/3 of the former wage) & Employee cannot sue employer. A compensable injury (or illness/death) is one that (1) is accidental; and (2) arises in the course of employment Market’s need for efficiency vs. caring for employees--- A number of employers moved out of California, in part, to avoid high WC.

6. Employee Privacy 4th Amendment does not prevent these unless gov. employment. Drug Tests Polygraph Tests Personality Tests Other practices that raise privacy issues: +e-mail censorship +smoking bans +fraternization bans +spying—common law invasion of privacy could exist if employer searches an employees desk w/o permission if employee has a reasonable privacy expect.

7. JUDGE JUDY READY TO RULE---- E-mails and Internet Usage can be monitored By employer! Case: Smyth vs. Pillsbury--- Former employee sues former employer alleging that employer monitored company e-mails even When company had a policy of not doing that and not taking Disciplinary action against employees for mis-use of e-mail system..

8. COBRA & Other Federal Insurance Acts Family Medical Leave Act (12 Weeks of Unpaid Leave) WARN (Must notify before downsizing) Social Security (payroll deductions for retirement, disability and/or death) Unemployment Compensation (limited in duration) ERISA Laws Employee Benefits Will it be there ? System Broke? Stable ?

9. Immigration &U.S. Workforce I-9 Form • The 1988 Immigration Reform and Control Act (IRCA) of 1988 requires US employers only to hire properly documented workers and requires the “I-9” from to be filled out and on file (2 forms of ID). Violation of this law could result in criminal penalties )

10. The Foundation in Law • In 1954 the Brown v. Board of Education, the Supreme Court overruled that the “separate but equal” schools violated the Constitution which set the stage for the passage of the Civil Rights Act of 1964. • Title VII of the Civil Rights Act prohibits employment discrimination by the majority of private and public sector employees. Both the 5th & 14th Amendments Equal Protection Clauses can be used to challenge governmental discrimination

11. Enforcement • The Equal Employment Opportunity Commission is the administrative agency that oversees the investigation & enforcement of discrimination laws. (www.eeoc.gov) E E O C

12. Individual Actions • All offended parties must first file a complaint with the EEOC or State Agency a/k/a a “706 Agency” (Ex.: Fla. Comm. on Human Relations). If these agencies find “reasonable cause” that a violation occurred, it may start a lawsuit on behalf of the offended party. • If no reasonable cause is found, or if the agency elects not to proceed on behalf of the complaining party it issues a “right to sue” letter to give the offended party the right to commence a private lawsuit.

13. Race, Color & National Origin • Title VII prohibits discrimination on the basis of race, color, sex, religion and national origin. There are two ways to sue for a Title VII violation: disparate treatment and disparate impact. Sexual preference is not protected under Title VII. 15 States protect against discrimination based on sexual Preference in employment (N.Y. passed it in Dec. 2002) Federal Executive Order by Clinton prevents it in Federal employment but not armed forces. There are 180+ municipal or county codes that prevent discrimination on this basis in employment.

14. Disparate Treatment • Plaintiff must prove that the defendant intentionally discriminated against the plaintiff because of his/her status in a protected class (race, sex, religion, national origin, color). The defendant has an opportunity to refute this proof but the essential characteristic of this “cause of action” is that the employer “intended” to discriminate. These cases are hard to prove due to the nature of the action.

15. Disparate Impact: • The defendant utilized facially neutral practices that have an adverse impact on a protected class. No intent to discriminate needs to be proven. The proof is generally established through statistical evidence.

16. Defenses to Discrimination Charges: • Bona fide seniority system • Applied to Raises • Applied to Layoffs • Employee Testing--Test is job related. • But not refusals of other workers to work with person’s that are “different” If a Test is Given, it must relate To job performance.

17. Sex Discrimination: Title VII prohibits discrimination based upon sex. The disparate treatment and disparate impact theories can both be used to establish a claim of sex discrimination. Hooters Example! Defense: bona fide occupational qualification defense (BFOQ). This applies to all types of discrimination claims except claims based on race. It is available in extremely limited situations. Elements: (1) Proof of a nexus between the classification (sex etc.) and job performance; (2) Necessity of classification for successful performance. Proof of a job performance “nexus” is essential.

19. Racial Discrimination Title VII considers This a protected Class.

20. Sexual Harassment • Sexual harassment is “unwelcome sexual advance, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” It is a form of “sex” discrimination and thus falls under Title VII. There are two “causes of action” or “basis for lawsuits” for plaintiffs to sue under : • quid pro quo theory when a person’s terms & conditions of employment are dependant upon engaging in sexual conduct/sexual favors. • hostile environment theory when the plaintiff’s work environment is made unbearable by sexual comments, innuendoes, suggestions, etc.

21. JUDGE JUDY READY TO RULE---- So that’s why I could never find a waiter in that place... same sex harassment claims are valid if proven... Case: Fredette v. BVP Management--- Male food server sues employer alleging hostile work environment & quid pro quo sexual harassment by other male maitre who is homosexual. Employer raises defense that same sex sexual harassment claims are invalid…….

23. The Equal Pay Act of 1963 prohibits discrimination to pay on the basis of sex. It only applies if the work is equal--equal in skill, effort and responsibility and performed under similar working conditions. If an employer is found in violation of this law then the remedy must be for the employer to adjust wages and raise the wages of the plaintiff class rather then lowering the pay of the “favored” class. Equal Pay

24. Affirmative Action The practice of taking positive steps to increase the employment of minorities & females, often to achieve a goal of a workforce that resembles the relevant labor pool in demographics. It may be ordered by a court after finding of unlawful discrimination or may be adopted voluntarily by employers. Federal government contractors are required by law to meet affirmative action standards. In the summer of 2003 the US Sct. Decided that Affirmative Actions Plans are Constitutional If not based on Quotas (Systems of Preferences OK) Affirmative action activities are being revised around the country. Reverse Discrimination claims can be filed unless The programs are properly designed to Redress past discrimination

25. Religious Discrimination • Discrimination is permitted only if an employer demonstrates that it cannot reasonably accommodate the employee’s religious beliefs without “undue hardship”

26. ADA The American with Disabilities Act (ADA) prohibits discrimination on the basis of disabilities in employment, public accommodations, public services, transportation and telecommunications. Disabled Person: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment or (3) is regarded as having such impairment.

27. Covered rehabilitated alcoholism rehabilitated drug users many others Not Covered: sexual preference gambling kleptomania pyromania exhibitionism Disabilities: Eye Glasses A Disability? The act requires employers to make reasonable accommodations for disabled persons.

28. Age Discrimination The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age and applies to those who are 40 years of age and older. Courts have applied both disparate treatment & disparate impact analysis of cases under the ADEA. Happy Birthday-- You’re Fired!

29. JUDGE JUDY READY TO RULE---- I can’t understand a word your saying.. Speak English! “English Only” rule is not discriminatory if legitimate business reason. Case: Prado v. L. Luria & Son, Inc.--- Former employee sues former employer alleging national origin discrimination due to the employer’s “English Only” workplace rule. Employer claims rule is necessary for health, welfare & safety of customers & workers…..

30. The U.S. Labor Movement • Unions stem back to the 1800s “Knights of Labor” which was a secret underground type organization and first form of a union to protect workers from employer a buses. Once unions were protected in the 1930’s they became very strong and powerful. Unions eventually reached their “peak” in the late 1950’s & 1960’s and then started to progressively lose membership and power. Eventually the two largest unions united (AFL-CIO). Unions lost much of their power in the US because of increase in federal laws (giving employees protections/rights) replacing the usefulness of unions, union corruption, union dues, change from manufacturing industries to service and the rise of “right to work” states.

31. Has anyone seen Jimmy Haffa? Labor Legislation

32. Unfair Labor Practices Don’t forget that Unions are excluded from Antitrust Section 8(a) of the NLRA sets forth a list of unfair labor practices (ULPs) which were created ensure the rights granted to each side in a labor environment. If either Management or Unions violate these ULP’s, a complaint Can be filed with the NLRB.

33. National Labor Relations Board---NLRB The NLRB is the administrative agency that oversees the NLRA. Its is charged with investigating and resolving ULP complaints and to monitor and oversee elections. The NLRB has mediators who try to resolve conflicts between the Union and management when possible. If a party does not agree with the ultimate NLRB ruling, they can appeal to the judicial branch (court case) after exhausting all other avenues for appeal within the NLRB

34. Starting a Union If the employer refuses to Voluntarily recognize a Unionization request the Following are the steps to take To form a union: STEP #1 A petition is filed with NLRB. Once the petition is filed, and if the employer does not recognize the request voluntarily,the NLRB will investigate the petition. The board will not proceed with any petition unless the union has a “substantial showing of interest” ---at least 30% or greater of employees support

35. Next ... Step #2: The employees who will be entitled to vote in the election (& who will be represented by the union if the election so decides) are referred to as the “bargaining unit”. If union & employer cannot agree upon appropriate bargaining unit the NLRB will establish the unit based on a “community of interest” standard. Certain classes of employees may be excluded from a bargain- ing unit (managers & “confidential employees”)

36. Then ... Step #3 An election is held which is overseen by the NLRB to ensure that it is free from undue or unfair influence by either the employer or the union. Majority vote wins. If Union is voted down, then they must wait for 2 years to restart the process. Keep in mind that both unions & employers Are restricted in the techniques they can Legally use during a campaign for unionization.

37. Workers must have the ability to speack about union ideas on off time or break time. No threats of retaliation for unionizing & No discrimination based on union views. No promises made if employees do not unionize. Must bargain only with union in good faith Parties’ Obligations/Duties Employer

38. Workers have a right to speak against the union. Workers should not be exposed to coercive types of pre-election persuasion on employees. Must bargain in good faith. Florida & Georgia are “right to work” states. Parties’ Obligations/Duties Union

39. Good Faith Bargaining A question of fact ---- (examples of known “bad Faith Bargaining”): Surface Bargaining: When one side bargains with no Genuine desire to reach an agreement but is simply going through “the motions”. Take-It-or-Leave-It Bargaining: When one side announces An offer under a “take it or leave it” proposal. This is bad Faith as both parties are to negotiate and do counter-proposals Under the NLRA.

40. Public Employees have limited rights to strike 2 Types of Strikes • Unfair Labor Practice Strikes: Strikes by employees in response to what they feel is an employer’s unfair labor practice. Once the strike is settled or over, the union members must be given their jobs back unless there was layoffs due to legitimate market trends. Thus, only temporary replacement workers can be hired by employer top fill in. • Economic Strikes: Strikes to put economic pressure on an employer and are those strikes that are not ULP strikes. Management has the right to replace these strikers permanently!

41. Primary picketing: This is legal peaceful picketing outside The employer’s place of business on public property. 2 Types of Picketing Secondary picketing or boycotting: This is peaceful picketing Outside a 3rd party’s premises on public property and it is Illegal.

42. Union Security Agreements • These are agreements negotiated with management/ownership which dictates how the parties will treat each other. In some states, these agreements can contain a provision that all new hires MUST JOIN A UNION. These are called union shop type provisions are legal in some states but ILLEGLAL in “right to work” states.

43. Right-To Work States See Fla. Const. Handout in Judge Judy Collection—Fla. Makes it Illegal to strike if you are a public employee and Fla. Makes itself A “right to work” state via this State Constitutional Amendment

44. Don’t Forget--- It is very hard to sue a union official on the basis Of a discretionary decision. Union officials are given limited Immunity for their decisions much like the “business Judgment” principal to protect officers/directors from Lawsuits from their shareholders. Union officials cannot be sued by union members for making a decision unless the decision was “so far outside a wide range of reasonableness that it is wholly irrational or arbitrary”

45. Clause of the Week Force Majeure Clause