Employment Law

Employment A legal relationship based on a contract that calls for one individual to be paid for working under another’s direction and control. Independent Contractor – Hired to produce a result only. (Not to do it a certain way as defined by an employer.) 2

3 HOW ARE EMPLOYMENT CONTRACTS MADE? Terms of the employment contract Express agreements Implied agreements Terms imposed by law (Not looking at the “4 corners.”)

4 HOW ARE EMPLOYMENT CONTRACTS TERMINATED? By performance By termination at will Wrongful discharge Violation of contract terms Government employees By material breach Unemployment compensation

5 Employment at Will At-will employees – employees who do not have employment contracts. Wrongful discharge – the discharge (termination) of an employee in violation of a statute, an employment contract, or public policy, or tortiously. The employee can recover damages and other remedies.

6 Employment at Will (continued) Statutory Exceptions Contract Exceptions Public Policy Exception Tort Exceptions

7 WHAT ARE AN EMPLOYER’S DUTIES? Duties owed to employees Reasonable treatment Safe working conditions Fair labor standards Payroll deductions Military service Voting

8 WHAT ARE AN EMPLOYER’S DUTIES? Duties owed to minors State laws Federal law Duties owed to those injured by employees (continued)

9 WHAT ARE AN EMPLOYEE’S DUTIES? Duty to fulfill the employment contract Duty of obedience Duty of reasonable skill Duty of loyalty and honesty Duty of reasonable performance

Government Employees Most “public” employees are entitled to Due Process (notice and hearing) before they can be discharged. 10

11 APPROACHES TO PROTECT WORKERS FROM ON-THE-JOB INJURIES Preventive approach After-the-fact compensation for injuries. i.e. Worker’s Compensation (discussed further)

12 REQUIRING A SAFE WORKPLACE Legislative background of OSHA OSHA’s responsibilities Assure a hazard-free workplace Develop and enforce specific regulations Conduct workplace inspections Dealing with OSHA violations

13 Do you agree with the following statement? By definition, an employee is under the supervision and control of the employer; therefore, almost any job-related injury the employee receives is due directly or indirectly to negligent supervision and control.

14 NEGLIGENCE LAW AND WORKERS’ COMPENSATION Employee negligence suits Difficulties for employees in negligence suits The compromise of workers’ compensation

15 Workers’ Compensation Acts Acts that compensate workers and their families if workers are injured in connection with their jobs.

16 NEGLIGENCE LAW AND WORKERS’ COMPENSATION Recovering in lieu of workers’ compensation If employer fails to provide workers’ compensation insurance If employee coverage is not required If the injury is not covered by workers’ compensation Employer commits an intentional tort (continued)

17 Workers’ Compensation Insurance States usually require employers to: To pay for workers’ compensation insurance, or To self-insure by making payments into a contingency fund.

18 Employment Related Injury To recover under workers’ compensation, the worker’s injuries must have been employment-related. Stress may be a compensable work-related injury.

19 Exclusive Remedy Workers’ compensation is an exclusive remedy. Workers cannot sue their employers in court for damages. Exception occurs when an employer intentionally injures an employee (tort).

20 Occupational Safety and Health Act (1970) Enacted to promote safety in the workplace. Established the Occupational Safety and Health Administration (OSHA). Virtually all private employers are within the scope of the act. Federal, state, and local governments are exempt.

21 Occupational Safety and Health Act (continued) The act imposes record keeping and reporting requirements on employers. Employers are required to post notices in the workplace informing employees of their rights under this act. OSHA is empowered to administer the act and adopt rules and regulations to interpret and enforce it.

22 Occupational Safety and Health Act (continued) OSHA is empowered to inspect places of employment for health hazards and safety violations. If a violation is found, OSHA can issue a written citation. Requires the employer to abate or correct the situation.

Types of OSHA Standards Specific Duty Standard Addresses a safety problem of a specific duty nature. e.g., requirement for a safety guard on a particular type of equipment General Duty Standard Duty that an employer has to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 23

24 Fair Labor Standards Act (FLSA) Federal act enacted in 1938 to protect workers. Prohibits child labor Establishes minimum wage requirements Establishes overtime pay requirements

25 Child Labor The FLSA forbids the use of oppressive child labor. It is unlawful to ship goods produced by businesses that use oppressive child labor. The Department of Labor defines the standards for lawful child labor.

26 Minimum Wage and Overtime Pay Managerial, administrative, and professional employees are exempt from the FLSA’s wage and hour provisions. Employers are required to pay covered (non-exempt) workers at least the minimum wage for their regular work hours. Overtime pay is also mandated.

27 Minimum Wage Set by Congress and can be changed. Employers are permitted to pay less than minimum wage to students and apprentices. An employer may reduce minimum wages by an amount equal to the reasonable cost of food and lodging provided to employees. FLSA Minimum Wage: The federal minimum wage is $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, (Calif. Minimum wage is $8.00 per hour.)

28 Overtime Pay An employer cannot require nonexempt employees to work more than 40 hours per week unless they are paid one-and-a half times their regular pay for each hour worked in excess of 40 hours. Each week is treated separately.

29 Other Federal Employment Laws (1 of 2) LawDescription Employee Retirement Income Security Act (ERISA) Prevents fraud and other abuses associated with private pension plans. Consolidated Omnibus Budget Reconciliation Act (COBRA) Permits employees and their beneficiaries to continue their group health insurance after an employee’s employment has ended. (At employee’s expense.)

30 Other Federal Employment Laws (2 of 2) LawDescription Family and Medical Leave Act (FMLA) Guarantees workers up to twelve weeks of unpaid leave in a twelve-month period to attend to family and medical emergencies Immigration Reform and Control Act (IRCA) Makes it unlawful for employers to hire illegal immigrants. Employers are required to complete INS Form I-9 attesting legal U.S. citizenship or legal alien status of each employee.

Labor Law

32 FOCUS What was a recent strike in our community? Who was on strike? What were the issues? What was the outcome?

33 The right of workers to form, join, and assist labor unions is a statutorily protected right in the United States.

34 HOW IS A UNION ESTABLISHED? Determining the bargaining unit Attempting voluntary recognition Holding a certification election Certification campaigns Decertification Negotiating the employment contract Union and agency shops Open and closed shops

Steps in Establishing a Union I. Establish a Bargaining Unit A) Determine which employees should be represented. B) Determine whether a majority wants union representation. 35

Steps in Establishing a Union II. Initiate a Certification Vote A) Organizers must obtain signatures of at least 30% of employees in bargaining unit. B) If the 30% requirement is met, NLRB conducts hearings; decides who is in bargaining unit and who can vote. 36

Steps in Establishing a Union III. Become Exclusive Bargaining Agent A) NLRB conducts a secret vote of workers. B) If union selected, NLRB acknowledges it as bargaining agent. 37

38 Federal Labor Union Statutes Norris-LaGuardia Act National Labor Relations Act Labor-Management Relations Act Labor-Management Reporting and Disclosure Act Railway Labor Act

39 HOW IS A LABOR CONTRACT NEGOTIATED WITH A UNION? Collective bargaining Strike Lockout Mediation

40 Employer Lockout Act of the employer to prevent employees from entering the work premises when the employer reasonably anticipates a strike.

41 WHAT ARE UNFAIR LABOR PRACTICES? Management’s unfair labor practices Interfering with employees’ efforts to form, join, or assist unions Dominating a union or giving it financial or other support Encouraging or discouraging union membership Refusing to bargain in good faith with the union

42 WHAT ARE UNFAIR LABOR PRACTICES? Unfair labor practices by unions Unfair labor practices in strikes and boycotts Strikes Boycotts (continued)

Equal Opportunity in Employment

44 Do employers discriminate… to find the best person for the job based on individual abilities?

Chapter 2145 WHEN IS DISCRIMINATION ILLEGAL? Protected classes Race and color Gender Medical Condition (Pregnancy) Age Religion Disability National origin

46 WHEN IS DISCRIMINATION ILLEGAL? Scope of protection Against unjustified conditions of employment Governing most employers (continued)

47 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Title VII of the Civil Rights Act of 1964 Equal Pay Act of 1963 Age Discrimination in Employment Act of 1967 Americans with Disabilities Act Pregnancy Discrimination Act

48 Proving Illegal Discrimination GOALS Discuss how a case based on unequal treatment is proven Describe how a case based on disparate impact is proven Recognize the forms of sexual harassment

Sexual Harassment Sex Discrimination is a BEHAVIOR. It occurs when employment decisions are based on an employee’s gender or when an employee is treated differently because of his/her sex. Sexual Harassment is a BEHAVIOR. It is defined as unwelcome behavior of a sexual nature. 49

Sexual Harassment The U.S. Equal Employment Opportunity Commission defines sexual harassment to include: (1) Unwelcome sexual advances that implicitly or explicitly condition an employment benefit on submission to such advances. “quid pro quo” (2) Unwanted sexual conduct that offends an individual enough that it creates an intimidating or “hostile work environment” that interferes with the victim’s emotional well-being. 50

51 DISPARATE IMPACT CASES E.E.O. Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence. By statistical proof

52 UNEQUAL TREATMENT CASES Employer’s defenses Business necessity Bona fide occupational qualification Seniority Pretexts

53 Defenses to A Title VII Action Merit Seniority Bona Fide Occupational Qualification (BFOQ)

54 Bona Fide Occupational Qualification (BFOQ) Employment discrimination based on a protected class (other than race or color) is lawful if it is: Job related, and a Business necessity This exception is narrowly interpreted by the courts.

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