© 2011 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. 1 Chapter 24: Employment, Immigration, and Labor Law

2 © 2011 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. Learning Objectives What is the employment-at-will doctrine? When and why are exceptions to this doctrine made? What federal statute governs working hours and wages? Under the Family and Medical Leave Act of 1993, under what circumstances may an employee take family or medical leave?

3 © 2011 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. Learning Objectives What are the two most important federal statutes governing immigration and employment today? What federal statute gave employees the right to organize unions and engage in collective thinking?

4 © 2011 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-at-Will Historically, employment law was governed by the common law doctrine of “employment at will” where either employer or employee could terminate the relationship at any time, for any reason. Today employment law is heavily regulated by state and federal statutes.

5 © 2011 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 doctrine of employment-at-will allows the employer and the employee to terminate employment at any time, for any reason, without liability. Some states recognize one or more judicial exceptions to this rule, while some states recognize none.  Employment-at-Will

6 © 2011 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. Contract Exceptions: An implied contract exists between employer and employee. Oral agreements may become part of the implied contract. Tort Exceptions: Wrongful discharge, defamation may be actionable. Public Policy Exceptions (Whistleblowing). Wrongful Discharge. Exceptions

7 © 2011 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. Child Labor. –Fair Labor Standards Act (1938) prohibits oppressive child labor practices. Provides regulations for work, depending on the age of child. Wage and Hour Laws

8 © 2011 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. Wages and Hours. –Davis-Bacon Act -- the prevailing wage act. –Walsh-Healey Act -- the beginning of minimum wages. –Fair Labor Standards Act (FLSA) -- an extension of wage and hour regulation to workers in interstate commerce. Overtime Exemptions. –Certain employees (usually executive, administrative, and professional) are exempt from overtime. Wage and Hour Laws

9 © 2011 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. Layoffs Worker Adjustment and Retraining Notification Act. –Intended to give employees advance notice in the event of a “mass layoff.” –Mass layoff: during 30 day period, loss of at least 33% full-time and 50 employees, OR –Loss of 500 hundred employees. –Remedies for Violations: $500/day, plus back pay, medical benefits.

10 © 2011 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 FMLA requires employers with over 50 employees to provide unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition. The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work. Family Medical Leave Act Case 24.1 Darst v. Interstate Brands Corp. IBC did not violate FMLA when it fired Chalimoniuk for excessive absences that were beyond FMLA’s scope.

11 © 2011 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. –Procedures and Violations: Employers with 11 or more employees required to keep records. Worker Health and Safety

12 © 2011 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. State Workers’ Compensation Laws. –These laws reduce employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer, by: –Requiring that injured employees make a claim against the employer’s workers’ compensation insurance policy, instead of suing the employer. –Requiring most employers to carry workers’ compensation insurance. Worker Health and Safety

13 © 2011 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 and Welfare. Medicare. –Federally funded health insurance for people aged 65 or older. Private Pension Plans. –Employee Retirement Income Security Act (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops working. Unemployment Insurance. Income Security

14 © 2011 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. COBRA prohibits the discontinuance of insurance benefits of workers who have voluntarily or involuntarily been separated from work, unless the involuntary separation was on the basis of gross misconduct. Employers must comply if they have more than 20 employees. COBRA

15 © 2011 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. Employer-Sponsored Group Health Plans Health Insurance Portability and Accountability Act (HIPAA) –Does not require health coverage but does establish requirements for those that do.

16 © 2011 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. Employee Privacy Rights Electronic Monitoring in the Workplace. –Employee Privacy Under Constitutional and Tort Law. Personal right to privacy may not apply to work computers, especially if there is a policy manual. –Electronic Communications Privacy Act. –Stored Communications (part of ECPA).

17 © 2011 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. Employee Privacy Rights Other Types of Monitoring. –Lie Detectors. –Drug and Genetic Testing. –What about preemployment screening procedures?

18 © 2011 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. Immigration Law Immigration Reform and Control Act of –Amnesty to certain groups of illegal aliens living in the United States. –Sanctions for employers. –Criminal and Civil Penalties. –Antidiscrimination Provisions.

19 © 2011 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. Immigration Law Immigration Act of –I-9 Employment Verification by Employers. –I-551 Alien Registration Receipts. –H-1 B Visa Program. –Labor Certification. –H-2, O, L, and E Visas. Case 24.2 Castellanos-Contreras v. Decatur Hotels, LLC. Guest workers are liable for their own recruitment, transportation, and visa expenses if incurred without employer’s knowledge.

20 © 2011 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. Norris-LaGuardia Act. –Protects peaceful strikes by limiting the injunction powers of federal courts. National Labor Relations Act. –Establishes the right of workers to strike and engage in collective bargaining. –Established the NLRB. Labor Unions—Federal Labor Laws

21 © 2011 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. Labor Unions Labor Management Relations Act. –Prohibits certain unfair union practices such as closed shops. Labor-Management Reporting and Disclosure Act. –Regulates the internal operations of unions and outlaws hot-cargo agreements.

22 © 2011 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. Union Organization Authorization Cards: first step in organizing a union. Employer may recognize the union. Union Elections Supervised by NRLB. Union Election Campaign. Case 24.3 Local Joint Executive Board of Las Vegas v. NLRB. Managers’ observations of union activity was not illegal because there were no threats or coercion that limited union rights.

23 © 2011 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. Union Organization Collective Bargaining. Strikes. –Right to Strike. Rights of Strikers After Strike Ends. –Generally, employer has a right to hire permanent replacements.