Employment and Labor Law

“Without the power of the industrial union behind it, democracy can only enter the state as a victim enters the gullet of a serpent.” James Connolly, Irish labor leader “Unionism seldom, if ever, uses such power as it has to insure better work; almost always it devotes a large part of that power to safeguarding bad work.” H.L Mencken American journalist

 In pre-industrial society, most people followed their parents’ occupations  With the industrial revolution came changes in employment law and employment contracts ◦ An employee at will can be fired for a good reason, a bad reason or no reason at all

 Guarantees both men and women up to 12 weeks of unpaid leave each year for: ◦ Childbirth ◦ Adoption ◦ Medical emergencies for themselves or a family member

 The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides that: ◦ Former employees must be allowed to continue their health insurance for 18 months after leaving their job

 Prohibits an employer from firing a worker for a bad reason  Public policy rule - Prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities ◦ Refusing to violate the law ◦ Performing a legal duty ◦ Exercising a legal right ◦ Supporting societal values

 Truth in hiring ◦ Oral promises made during the hiring process can be enforceable  Even if not approved by the company’s top executives  Employee handbook creates a contract  Covenant of good faith & fair dealing ◦ In almost all states, courts will imply a covenant of good faith and fair dealing in an at-will employment relationship

 Defamation ◦ Employers may be liable for defamation when:  They give false and unfavorable references about a former employee ◦ More than half of the states recognize a qualified privilege for employers who give references about former employees ◦ Employers are generally not required to give any information about former employees, but:  Sometimes be held liable if potentially dangerous information is withheld

 Intentional infliction of emotional distress ◦ Employers who condone cruel treatment of their workers:  Face liability under the tort of intentional infliction of emotional distress

 Employees who disclose illegal behavior on the part of their employer  The False Claims Act prohibits employers from firing workers who file under the statute  Dodd-Frank Wall Street Reform and Consumer Protection Act ◦ Anyone who provides information to the government about violations of securities or commodities laws is:  Entitled to a payout of from 10 to 30 percent of the award (that tops $1 million) the government receives

 The Sarbanes-Oxley Act of 2002 protects employees of publicly traded companies who provide evidence of fraud to investigators  Constitutional protection for government employees ◦ Employees of federal, state, and local governments have a right to free speech under the United States Constitution

 Statutory protection for federal employees ◦ The Civil Service Reform Act and the Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing  State laws ◦ 50 states have laws that protect whistleblowers from retaliation by their employers

 Employers have the right to fire workers for off-duty conduct ◦ Statutes that change this law are:  General lifestyle statutes  Laws that protect specific behavior

 Smoking ◦ Employers refuse to hire smokers  Policy is legal unless state law prohibits it  Alcohol and drug testing is allowed by private businesses: ◦ Government employers may test if signs of use are seen or if job safety is an issue  Employers may not require or even suggest the use of lie detector tests, except in: ◦ Investigations of crimes

 Electronic monitoring of the workplace ◦ The Electronic Communications Privacy Act of 1986 (ECPA) permits employers to monitor workers’ telephone calls, messages, and “instant messages” if:  Employee consents  Monitoring occurs in the ordinary course of business  In the case of , the employer provides the e- mail system

 Social media ◦ Employers should consider anything they publish on the Internet to be public  Immigration ◦ Because of discrimination laws, employers should not ask about an applicant’s country of origin:  They are permitted to inquire if the person is authorized to work in the United States

 In 1970, Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions ◦ Sets specific health and safety standards ◦ Obliges employers to keep workplace “free from recognized hazards” ◦ Requires records of all injuries and accidents ◦ Allows inspection of workplaces and fines for unsafe conditions

 Fair Labor Standards ◦ Passed in 1938, the Fair Labor Standards Act (FLSA) regulates wages and limits child labor  Workers’ compensation ◦ Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work

 Social security ◦ System pays benefits to:  Workers who are retired, disabled, or temporarily unemployed  Spouses and children of disabled or deceased workers  Pension benefits ◦ In 1974, Congress passed the Employee Retirement Income Security Act (ERISA) to:  Protect workers covered by private pension plans

 Key pro-union statutes ◦ Norris-LaGuardia Act (passed in 1932):  Prohibits federal court injunctions in nonviolent labor disputes  Permits workers to form unions and use collective bargaining power ◦ National Labor Relations Act: Ensures the right of workers to form unions  Encourages management and unions to bargain collectively and productively

◦ National Labor Relations Act  Section 7 guarantees employees the right to:  Organize and join unions  Bargain collectively through representatives of their own choosing  Engage in other concerted activities  Section 8 prohibits employers from engaging in the following unfair labor practices (ULPs)  Interfering with union organizing efforts  Dominating or interfering with any union  Discriminating against a union member  Refusing to bargain with a union

◦ National Labor Relations Board (NLRB): Administers and interprets the NLRA and adjudicates labor cases  Labor unions today ◦ Only about 1 in 8 are union members ◦ Attract political attention ◦ Public employees more likely to be union members  Not protected by the NLRA

 Organizing a union ◦ Exclusivity - Under §9 of the NLRA, a validly recognized union is the exclusive representative of the employees

◦ Organizing – Stages  Campaign  Authorization cards - If organizers get enough cards, they seek recognition as the official representative for the bargaining unit  Petitions the NLRB for an election  Requires 30% of the workers’ approval  Election  Card-Check debate – When more than 50% of workers sign an authorization card:  NLRB designates union as the exclusive representative without election

◦ Organizing – Actions  NLRA guarantees employees the right to talk among themselves about:  Forming a union  To hand out literature  Ultimately join a union  Employer may present anti-union views to its employees:  May not use either threats or promises of benefits to defeat a union drive

 Collective bargaining agreement: Contract between union and management ◦ Mandatory subjects - Wages, hours, and other terms and conditions of employment ◦ Both the union and the employer must bargain in good faith  Not obligated to reach an agreement

 Concerted action: Tactics taken by union members to gain bargaining advantage ◦ NLRA guarantees the right of employees to engage in concerted action for mutual aid or protection ◦ Strikes – NLRA guarantees employees the right to strike, but with limitations  No-strike clause: Prohibits the union from striking while the CBA is in force  Cooling off period – Before striking, union must give management 60 days’ notice

◦ Strikes  Statutory prohibition – Many states have outlawed strikes by public employees  Violent strikes are prohibited  Sit-down strikes: Members stop working, but remain at posts  Partial strikes – Occur when employees stop working temporarily

 Replacement workers  Management has the right to hire replacement workers during a strike  After an economic strike, an employer may not discriminate against a striker  Employer is not obligated to lay off a replacement worker to give a striker his job back  After a ULP strike, a union member is entitled to her job back:  Even if that means the employer must lay off a replacement worker

◦ Picketing the employer’s workplace in support of a strike is generally lawful ◦ Lockouts – Management prohibits workers from entering the premises and earning their paychecks