Employment And Labor Laws

1. 14 Employment And Labor Laws

2. Major Federal Employment Laws • See Summary Chart of Laws and Purpose of Laws on page 414

3. Health & Safety • Worker’s Compensation- For work-related injuries • Without regard to fault • Arise out of employment and In course of employment • logic:compromise to provide compensation/limit awards • Employer required to furnish medical treatment • Schedule of disability payments • Some employees excluded • In practice, burdensome process for employees

4. Health & Safety • Occupational Safety & Health Act (OSHA)(1970) • General duty to prevent workplace hazards that may cause death or serious harm • Reporting requirement • Must comply with set labor standards • Inspections may be random, but generally in response to complaints • Search warrants may be required

5. Health & Safety • Family & Medical Leave Act(1993) • To provide job security • 50 or more employees • 1 year of service • Up to 12 weeks per year, Unpaid • Time may be split up • Serious health condition • Affecting Normal Activities

6. Wages & Pensions • Fair Labor Standards Act(1938) • Restrictions On Child Labor • Minimum Hourly Wage- 1997 = $5.15/hr. • Maximum Number Of Hours Before Overtime Owed • 40 Hours (1.5 Regular Rate) • Time Off • May Be Superceded By Contract • Rules currently under challenge, in re “Salaried”

7. Wages & Pensions • State Wage Statutes • Garnishment (e.g. for Child Support) • Note: Doctrine of Preemption

8. Wages & Pensions • Employment Retirement Income Security Act (ERISA)(1974)- vesting • To protect pension funds from: • Underfunding • Dishonest or Careless Management • Loss upon change of employers by Long-Term employees • Much litigation

9. Wages & Pensions • Social Security Act • Provides Disability Benefits

10. Employment-At-Will • Unless contract for a definite period, can discharge without cause at any time • Contract Theory: Implied Promise Of Good Faith • Handbook = Contract? • Prohibited • Discharge For Performance Of Public Obligation • Discharge For Whistle-Blowing (various acts including Sarbanes-Oxley) • Discharge For Exercising Legal Rights • “Public Policy” • See chart of other limitations on page 417

11. Employee Privacy • Electronic Communications Privacy Act (1986) • Lie Detector Tests - generally prohibited or highly regulated • Employee Polygraph Protection Act of 1988 • allows testing when there is a "reasonable suspicion" that the employee is involved in activity resulting in economic loss or injury to the employer. Also when the employer is a security-related firm or is involved with controlled substances. • Drug Testing - regulated by statute • Fourth Amendment Search & Seizure • NC Controlled Substance Examination Act • DOT/NRC Rules • Other Privacy Concerns (Employee Access/Restricted 3rd Party Access) • Personnel Records • Medical Records • Email

12. Employee Privacy • GARRITY v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY • 2002 U.S. Dist. Lexis 8343 (D. Mass. 2002) • FACTS: Nancy Garrity and Joanne Clark were terminated as employees of John Hancock in July 1999. The reason given for these discharges was violations of the company’s e-mail policy. The company, upon investigation, determined these individuals had used company e-mail to send sexually explicit messages. Mrs. Garrity and Ms. Clark sued John Hancock for wrongful discharge. They alleged the company’s investigation violated their rights of privacy. The basis of these claims rests on the company’s instructions for employees to create password protection to their e-mail and to create personal folders for messages sent and received. • ISSUE: Is John Hancock entitled to summary judgment on the merits of the employees’ claims?

13. Employee Privacy • GARRITY v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY • 2002 U.S. Dist. Lexis 8343 (D. Mass. 2002) • DECISION: Yes. • REASONS: 1. The company has a legitimate business interest in protecting its employees from inappropriate e-mail messages. • 2. Once the company receives complaints about sexually explicit e-mails, it is required by law to investigate. • 3. The plaintiffs in this case cannot satisfy the claims of defamation by the company since the company has a conditional privilege to share information, as needed, that arises from and furthers the investigation of employees allegedly violating the company’s e-mail policy.

14. Employee Privacy In a recent survey one-third of companies said that they have fired an employee in the past 12 months for violating email policies. Another 52% said they had disciplined employees for email policy violations. (Source: Marketwatch)

15. Employer Protection From Employee Lawsuits • “Paper Fortress” • Job Descriptions • Personnel Manuals • Personnel Files • Written Warning- Signed/Noted • Letter Of Explanation • Key Considerations: Documentation & Witnesses

16. Collective Bargaining & Union Activities • See Summary of Laws Governing Labor-Management Relations on page 422

17. Labor-ManagementRelationship • Collective Bargaining • Clayton Act (1914)- • (1) That the antitrust laws do not apply to labor unions that are carrying out legitimate labor activities such as striking and picketing. • (2) That the act prohibits federal courts from enjoining certain lawful labor activities.

18. Labor-ManagementRelationship • A union and several employers negotiated a collective-bargaining agreement which restricted the operating hours of food-store meat departments in Chicago, Illinois, to 9:00 a.m. through 6:00 p.m. Jewel Tea brought suit, alleging that a prepackaged, self-service system of marketing meat eliminated the need to have a butcher on duty at all times; therefore, the limitation on operating hours was an unreasonable restraint of trade. The defendants claimed that the controversy was exempt from the antitrust laws. Issue: Does the antitrust laws apply? Held: No. Exempt under the Clayton Act. The national labor policy expressed in the National Labor Relations Act immunizes from the Sherman Act union-employer agreements on when, and how long, employees must work. The agreement herein is thus exempt. Local Union No. 189, Amalgamated Meat Cutters, and Butcher Workmen of North America, AFL-CIO, et al. v. Jewel Tea Company, Inc., 85 S.Ct. 1596 (1965).

19. Labor-ManagementRelationship • Collective Bargaining • Railway Labor Act(1926) - For Railroads & Airlines (see box on page 423) • That state courts cannot enjoin a peaceful strike by employees covered by the Railway Labor Act. Also, employees under the Railway Labor Act have the right to strike over major disputes but are subject to compulsory arbitration for minor disputes before the National Railroad Adjustment Board.

20. Labor-ManagementRelationship • Collective Bargaining • Railway Labor Act(1926) - For Railroads & Airlines • 15 times in the last 30 years Congress had to dictate the terms of a railroad settlement or extend the time period during which strikes or lockouts are prohibited. Congress has to act because the lengthy negotiation and mediation procedures of the Railway Labor Act frequently do not result in an agreement. In 1992, the Congressional resolution of a strike and lockout that had shutdown all railroads provided: • a. For a 38-day cooling off period with continued negotiations. • b. If no agreement, then binding arbitration was required. • c. In the arbitration process each side would make a final offer of settlement. The arbitrators then would select one or the other offer and it would be imposed on both parties. They could not compromise between the offers. (Similar to baseball arbitration.)

21. Labor-ManagementRelationship • Collective Bargaining • Norris-LaGuardia Act(1932) • (1) That the Norris-LaGuardia Act attempts to limit the power of the federal courts to issue injunctions. • (2) That the act does not restrict state courts from issuing injunctions • Yellow-Dog Contracts

22. Labor-ManagementRelationship • Collective Bargaining • Norris-LaGuardia Act(1932) • A Union, which represents railroad employees nationwide, had a dispute over renewal of a collective-bargaining agreement with a small railroad that is a subsidiary of a large railroad. After exhausting the settlement procedures mandated by RLA, the Union instituted a lawful strike against the parent railroads. The Union extended its picketing to other railroads with which the parent interchanged traffic. Issue: Can the court enjoin this secondary picketing? Held: No. Under the Norris-LaGuardia Act, a federal court did not have the jurisdiction to enjoin secondary picketing in railway labor cases. Burlington Northern R. Co. v. B.M.W.E., 107 S.Ct. 1841 (1987).

23. Labor-Management Relationship: Wagner Act(1935) • Created National Labor Relations Board • Business “Affecting Commerce”- Small Employers Under State Laws • See Chart of Jurisdiction page 425 • Granted NLRB Quasi-Judicial Authority • Note: That public employees are not covered by the act. Public employees are subject to state law in the settlement of their labor disputes. • See other exemptions in box on page 425

24. Unfair Labor Practices- Employer • Interfering with employee’s right to form/join union • “Concerted Activities” liberally interpreted to favor union formation • Establishing/dominating union • Hiring/Tenure discrimination based on union involvement • Discriminating against employees based on NLRB charges filed/testimony given • Refusing to bargain in “Good Faith” with union that represents employees (compulsory/voluntary)

25. Unfair Labor Practices- Employer • ALLENTOWN MACK SALES AND SERVICE, INC. v. NATIONAL LABOR RELATIONS BOARD • 118 S.Ct. 818 (1998) • FACTS: A factory branch of Mack Trucks, Inc. had service and parts employees represented by the International Association of Machinists and Aerospace Workers. This branch was sold by Mack Trucks, Inc. to the managers of the facility. These managers believed that their employees were no longer interested in being represented by the union. The new owners refused to recognize the union as the bargaining agent for the employees. Management also requested the NLRB to conduct an independent poll by secret ballot concerning the union’s status. The poll was conducted. The Union lost the poll, but it filed a charge of an unfair labor practice by management. • ISSUE: Does the NLRB use the same standard of “reasonable doubt” by the employer when management requests a poll, when management requests a decertification election, and when management withdraws its recognition of the union as the bargaining agent of employees?

26. Unfair Labor Practices- Employer • ALLENTOWN MACK SALES AND SERVICE, INC. v. NATIONAL LABOR RELATIONS BOARD • 118 S.Ct. 818 (1998) • DECISION: Yes. • REASONS: • 1. The NLRB has discretion in setting standards with respect to polls, elections, and recognition withdrawals. • 2. Since the NLRB has discretion, setting a unitary standard is within its authority. • 3. In this case, there is sufficient evidence that Allentown managers did in fact have reasonable doubt about the support or lack of support of the union as the bargaining agent of its employees.

27. Bargaining • CompulsoryPermissiveDrug and Alcohol Testing Advertising • for Current Employees Promotions • Layoffs Product - Design • Recalls Drug and Alcohol Testing • Work Quotas for Applicants • Profit-Sharing Plans • Health Plans • Cafeteria Prices • Early Retirement Packages • Plant Relocations

28. Labor-Management Relationship: Wagner Act(1935) • A union refused to work overtime during negotiations for renewal of a contract. The employer filed a complaint with a state employment relations commission that entered a cease and desist order. The state courts upheld the order. Issue: Does the state have jurisdiction over this labor dispute? Held: No. The union's concerted refusal to work overtime was peaceful conduct constituting activity that must be free of state regulation if the congressional intent in enacting the comprehensive federal law of labor relations was not to be frustrated. Lodge 76, Etc. v. Wisconsin Employment Rel. Com'n., 96 S.Ct. 2548 (1976).

29. Unions • Elections • Secret Ballot • Maynard Plastics Example • NLRB Supervised Upon Petition • Certification

30. Unions • NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC. • 121 S.Ct. 1861 (2001) • FACTS: The Kentucky River Community Care, Inc. operates a facility, known as Caney Creek, for the care of patients suffering from mental retardation and illness. The Kentucky State District Council of Carpenters, a labor union, petitioned the NLRB for certification as the bargaining representative of the eligible employees at Caney Creek. A dispute arose concerning the supervisory status of six registered nurses. The NLRB’s Regional Director decided the burden to prove supervisory status is always on the employer. Upon appeal, the Sixth Circuit reversed and announced the burden of proving supervisory status is always on the NLRB’s General Counsel. The NLRB was granted review by the Supreme Court. • ISSUES: 1. Should courts defer to the decisions of the administrative agency? • 2. In this case, who has the burden of proving supervisory status?

31. Unions • NLRB v. KENTUCKY RIVER COMMUNITY CARE, INC. • 121 S.Ct. 1861 (2001) • DECISIONS: • 1.Yes, generally courts should not discount the decision made at the administrative level. • 2.The NLRB’s General Counsel has the burden of proof in this case. • REASONS: • 1. The Wagner Act does not explicitly state who has the burden of proving an employee’s supervisory status. • 2. It is appropriate for the NLRB to fill in the gap left by the statute. The NLRB has ruled that the party seeking to show a presence or lack of supervisory status has that burden of proof. • 3. The Sixth Circuit should defer to the NLRB’s ruling, rather than create an absolute rule that the NLRB’s General Counsel always has the burden of proof. • 4. In this case, the Sixth Circuit’s conclusion that the General Counsel has the burden of proof is correct.

32. Collective Bargaining & Union Activities • Taft-Hartley Labor-Management Relations Act(1947) • To Ensure the Flow of Commerce • Recently employed in re: California Dock Workers • Vs. unfair labor practices • Monitored by NLRB • 80 day cooling off period where threat to harm national safety or health (e.g. California Dock Workers strike) • Anti-Closed Shop - Need not join union prior to hire • Union Security Clause - Must join after hire (Child World Example) • Employer Free Speech • Right-to-work laws -Need not join if hired pre-union • See Chart of Unfair Practices on page 437 • See Local 14 v. NLRB, • Right to strike, picket, collectively bargain • Right of reinstatement • But misconduct can justify discharge

33. Right-To Work States

34. Member Suits Against Unions • Union Responsible For Actions Of Its Agents • Money Judgment Against Union Assets • Members • Sue For Damages From Illegal Strike • Sue For Breach Of Duty In Fair Representation • Failing To Enforce Union Constitution & Bylaws

35. Unfair Labor Practices- Union • Coerce employee to join/select representative • Coerce employer to discriminate in hiring non-union employee • Refuse to bargain with employer • Setting excessive union fees • Forcing employer to pay for work not performed • Requiring employer to bargain with non-certified bargaining agent • Striking/Picketing For Illegal Purposes, Engaging In Secondary Boycotts- Jurisdictional Strike

36. Amendments • Landrum-Griffin Act (1959) - “Bill of Rights” for Union Members • Agreeing To Engage In Secondary Boycotts • Union-Mgmt. Agreement With Adverse Affect On 3rd Party • Hot-Cargo Contract • Picketing When Not Certified • Employer Recognize Another Union • Valid Election Already Conducted • Unreasonable Picketing Timeframe

37. Collective Bargaining & Union Activities • Labor-Management Reporting & Disclosure Act(1959) • To promote honesty and democracy in unions • Note: Unions in decline (Why?)

38. Workers Unionized Source: Bureau of Labor Statistics

39. % Union Membership by Industry (2002) Source: Bureau of Labor Statistics

40. Unemployment Insurance Law • Claimant’s Qualification for Benefits • Discharge - No substantial fault or misconduct • Misconduct - wilful or wanton disregard of an employer’s interests, deliberate violations, disregard for standards of behavior which employer has right to expect, repeated carelessness/negligence = to wrongful intent or design = 2 year disqualification

41. Unemployment Insurance Law • Misconduct specifically includes: • loss of required license where within power to retain • significant alcohol or drug impairment at work • consuming alcohol or illegal drugs at work • conviction for manufacturing, selling or distributing a controlled substance • failure of a drug test administered according to statutory procedures • refusal to take a drug test where reasonably required • failure to apply for suitable work

42. Unemployment Insurance Law • Claimant’s Qualification for Benefits • Substantial Fault -Acts or omissions over which Claimant exercised reasonable control which violate requirements of the job(e.g. attendance violations) but not: • Minor infractions, unless repeated after warning • Inadvertent mistakes • Insufficient skill, ability or equipment • Normally 9 week disqualification • May be mitigating or aggravating circumstances

43. Unemployment Insurance Law • Claimant’s Eligibility for Benefits • Able & Available • Shift Restrictions • Failure to accept suitable work • Failure to conduct work search • Late reporting/Filing • School attendance • Pending SSI application or grant of SSI benefits negates eligibility

44. Unemployment Insurance Law • Claimant’s Qualification for Benefits • Quit - For” Good Cause” attributable to the employer • Good Cause = Reason which would be deemed valid by “reasonable” people and not indicative of unwillingness to work

45. Unemployment Insurance Law • Claimant’s Qualification for Benefits • Quit - For” Good Cause” attributable to the employer • Exceptions • Personal or Immediate Family Health/Disability, with proper notice, no alternative work • Solely due to permanent, unilateral reduction in pay > 15%, or reduction in hours > 20%, where no malfeasance, misfeasance or nonfeasance • Spousal Relocation - 2 week disqualification