© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. M ILLER

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Employment relationships have historically been governed by common law doctrine of “employment at will.”  Either party may terminate at any time for any reason, unless contract provides to the contrary.  2

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Exceptions to the Employment At Will Doctrine:  Contract Theory: is there an implied employment agreement? What about oral promises from employer?  3

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Exceptions to the Employment At Will Doctrine:  Tort Theory: wrongful discharge.  Public Policy: ‘whistleblower’ claims. CASE 27.1 W ADDELL V. B OYCE T HOMPSON I NSTITUTE FOR P LANT R ESEARCH, I NC. (2012).  4

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Exceptions to the Employment At Will Doctrine:  Wrongful Discharge. Even if employer’s actions do not violate any express employment contract or statute, liability may still attach based on tort theory or agency. 5

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Introduction.  Davis-Bacon Act: prevailing wage.  Walsh-Healey Act: minimum wages.  FLSA: an extension of wage and hour regulation to workers in interstate commerce.  6

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7  Child Labor.  FLSA prohibits oppressive child labor practices.  Under 14, only allowed to do certain types of work. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8  Minimum Wages.  In 2010, FLSA minimum wage is $7.25/hour in covered industries.  Employers in food or lodging industries can deduct reasonable cost of those services from wages. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9  Overtime Provisions and Exemptions.  Rule: Under FLSA, employees who work over 40 hours/week are entitled to 1.5 times her hourly wage for those hours worked. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10  Overtime Provisions and Exemptions.  Exemptions: certain employees, e.g., executive or professional, are exempt from FLSA overtime requirements. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11  Overtime Provisions and Exemptions.  Exemptions: do not apply to manual laborers, nurses, police, firefighters, and other public safety workers, ‘blue collar’ workers.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12  Layoffs.  Worker Adjustment and Retraining Notification Act. Requires 60 days notice before a ‘mass layoff’ which means loss of:  At least 33% of fifty (50) full-time employees at a single job site, or  At least 500 full-time employees.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13  Layoffs.  Worker Adjustment and Retraining Notification Act. Notification Requirements. Remedies for Violations. State Laws May Also Require Layoff Notices.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Coverage and Application:  FMLA requires employers with over 50 employees to provide up to twelve (12) weeks unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition.  14

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15  Coverage and Application:  Serious injuries or military duty can take up to 26 weeks.  Benefits and Protections.  Employer must continue worker’s health care on same terms. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16  Benefits and Protections.  Employee must be restored to position upon return to work (unless it’s a “key” employee).  Violations.  Damages, Job Reinstatement, and Promotion.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  The Occupational Safety and Health Act. (OSHA).  The fundamental federal law aimed toward safety in the workplace.  Enforcement is by OSHA, NIOSH, and the OSHRC.  17

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18  State Workers’ Compensation Laws.  Establish procedures for compensating workers injured on the job.  Instead of suing for injuries, a worker is compensated. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19  State Workers’ Compensation Laws.  Requirements. Existence of employment relationship. Accidental injury that occurred on the job or in course of employment. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20  State Workers’ Compensation Laws.  Workers’ Compensation Versus Litigation. Bars plaintiff from suing, but also bars defendant/employer from any applicable defenses.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Social Security.  Portion of income (whether paycheck or self-employed) goes to FICA (Federal Insurance Contributions Act).  21

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22  Medicare.  Federal government health- insurance program for people 65 years of age, and for those under 65 who are disabled.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23  Private Pension Plans.  ERISA does not require employers to setup pension plans, but provides rules on management and investment.  Vesting.  Investment of Funds. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24  Unemployment Insurance.  FUTA created state-run system that provides unemployment compensation for those losing jobs. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25  COBRA provides a federal right to continued health insurance.  Procedures: worker has 60 days to decide.  Payment: COBRA is not free, payments depending on conditions and worker status.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26  Employer-Sponsored Group Health Care Plans.  HIPAA: Does not require health insurance but it does establish requirements for health plans. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27  Employer-Sponsored Group Health Care Plans.  HIPAA: Strictly limits employer’s ability to exclude pre-existing conditions. Plus, restricts manner of disseminating patient information.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28  Affordable Care Act (Obamacare).  Employers with >50 employees are required to offer health- insurance benefits.  Businesses may be eligible for up to 35% tax credits. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29  Affordable Care Act (Obamacare).  “50/30” Rule and Fines.  Employers will be fined only if employees receives a federal subsidy to buy health insurance via the state insurance exchange.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Electronic Monitoring.  More than half of employers use some sort of electronic monitoring of employees.  Employee Privacy Protection: is there an employee expectation of privacy?  30

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31  Electronic Monitoring.  ECPA: “business-extension exception” allows employer to monitor.  What about stored communications?

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32  Other Types of Monitoring.  Lie-Detector Tests.  Drug Testing. Public v Private Employers. CASE 27.2 NASA V. N ELSON (2011).  Genetic Testing.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  ICRA.  Makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in the U.S.  I-9 Employment Verification: for new hires.  33

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  ICRA.  Enforcement: by I.C.E.  Penalties.  34

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  The Immigration Act.  Places caps on the number of visas that can be issued to immigrants every year.  I-551 Alien Registration Receipts.  The H-1B Visa Program.  35

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36  The Immigration Act.  Labor Certification.  H-2, O, L, and E Visas.  State Immigration Legislation.  Arizona “Show Me Your Papers” statute was upheld by U.S. Supreme Court.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37  Federal Labor Laws.  Norris-LaGuardia Act: protects peaceful strikes by limiting the injunction powers of federal courts. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Federal Labor Laws.  National Labor Relations Act: establishes the right of workers to strike and engage in collective bargaining. Establishing NLRB.  38

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39  Federal Labor Laws.  Labor Management Relations Act: prohibits certain unfair union practices such as closed shops. Allowed individual states to pass right-to-work laws. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 40  Federal Labor Laws.  Labor-Management Reporting and Disclosure Act: hot cargo- agreements, secondary boycotts. CASE 27.3 Services Employees International Union v. National Union of Healthcare Workers (2013).

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41  Union Organization.  First step, majority of workers sign authorization cards.  Union Elections: can be held only if it can be shown that at least 30% of the workers support the union and will be represented. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42  Union Organization.  Union Election Campaigns: NLRB regulates rights and obligations of employers and workers in the election process. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43  Union Organization.  Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other’s activities.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44  Collective Bargaining.  Process by which management and labor negotiate the terms and conditions of employment.  The NLRB will certify an exclusive bargaining agent for labor. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45  Collective Bargaining.  Both labor and management must bargain in good faith, but the law does not require that they reach an agreement.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 46  Strikes.  The Right to Strike. Most are “economic strikes.” Picketing is protected by First Amendment. Employers have the right to hire substitutes to replace striking workers.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 47  Strikes.  Illegal Strikes: Violent strikes. Massed picketing. Sit-down strikes. No-strike clause. Secondary boycotts. Wildcat strikes.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 48  Strikes.  Strikers’ Rights after a Strike Ends. In an ‘economic strike’, if employer has hired replacements it does not have to rehire the strikers. If no replacements have been hired, then employer must rehire economic strikers. 

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 49  Strikes.  Strikers’ Rights after a Strike Ends. In an ‘unfair labor strike’, different rules apply but an employer must give the strikers back their jobs after the strike is over.

© 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 50  Lockouts.  Occurs when the employer shuts down the plant to prevent employees from working.  Usually used when employer believes a strike is imminent.