Chapter 41

LABOR AND EMPLOYMENT LAW

WAGE AND HOUR LAWS

· Fair Labor Standards Act ("FLSA"): Federal law, applicable to the employees of all employers engaged in interstate commerce. Among its provisions are:

· Child Labor: FLSA prohibits children under the age of 14 from most types of work, making exceptions for, e.g., lawn care, news paper delivery, and entertainment. Children aged 14 or 15 are allowed to work in any non-hazardous occupation; however, FLSA establishes strict limits on the number of hours per day, the number of days per week, as well as the hours and days on which they may work. Children aged 16 to 18 do not face such hour and day restrictions, but still may not work in hazardous occupations or do other work detrimental to their health and well-being.

· Maximum Hours/Overtime: Except for so-called exempt employees (e.g., professionals, executives), FLSA requires that any employee who works more than 40 hours per week must be paid overtime wages -- at least 1-1/2 times their regular wage -- for all hours worked in excess of 40.

· Minimum Wage: The lowest wage that an employer may pay an hourly-wage employee.

FEDERAL LABOR LAWS

· Norris-LaGuardia Act: Federal law protecting employees' right to organize and to peacefully strike, picket, and boycott.

· National Labor Relations Act ("NLRA"): Federal law establishing employees' rights to engage in collective bargaining and to strike to protect that right. The NLRA also defines certain unfair labor practices, such as interfering with employees' efforts to organize, discriminating against employees based on union membership and/or grievances, and refusing to bargain collectively with the employees' chosen representative.

· Labor-Management Relations Act ("LMRA"): Federal law prohibiting certain unfair union practices, such as requiring union membership as a condition of employment (a "closed shop") or continued employment (a "union shop"), refusing to negotiate with management, and causing employers to hire unneeded employees ("featherbedding").

· Labor-Management Reporting and Disclosure Act ("LMRDA"): Federal law regulating internal union procedures and setting forth an "employee bill of rights."

UNIONS & COLLECTIVE BARGAINING

How can a union actually get authority to represent its members?

· Step 1 - Authorization: If a majority of employees sign authorization cards stating their desire to unionize, union supporters may seek formal recognition from their employer.

· Step 2 - Petition: If the employer refuses to formally recognize the employees' desire to unionize, they may petition the NLRB for an election. Union supporters must demonstrate to the NLRB that at least 30 percent of those to be represented support a union or an election on unionization.

· Step 3- Campaign: Employers may limit campaign activities at the workplace and campaign against unionization.

· Step 4 - Election/Certification: At the appropriate time, an election will be held. If the NLRB deems the election to be fair and a majority of eligible employees vote for unionization, the NLRB will certify the union as the employees' collective bargaining representative.

· Step 5- Collective Bargaining: The union will bargain with the employer on behalf of all employees.

EMPLOYEE HEALTH AND SAFETY

· Occupational Health and Safety Administration ("OSHA"): The federal agency empowered to promulgate workplace health and safety standards, to conduct workplace inspections, and to investigate employee complaints.

· Employers must promptly report any workplace accident as a result of which an employee was killed or at least five employees were hospitalized.

· Failure to comply with OSHA standards and/or failure to promptly report incidents may result in severe fines for the employer and possible imprisonment for culpable supervisory personnel.

· Deliberate Indifference to OSHA standards constitutes a willful violation of federal law.

· Workers' Compensation Laws: State laws establishing an administrative procedure for compensating workers for their workplace or work-related injuries that arise out of, or in the course of, their employment, regardless of fault.

· Generally speaking, compensable injuries must be accidental; intentionally inflicted injuries are excluded.

INCOME SECURITY

· Social Security: Government-assured supplemental income for persons (i) over the age of 65 years, (ii) their survivors, and (iii) disabled persons. Social security is funded by (non-voluntary) employer and employee "contributions."

· Medicare: Government-administered health insurance program for those eligible for social security.

· Unemployment Insurance: Government Assured, short term income insurance for qualified persons who are unemployed. Funded by employer’s payments to unemployment tax fund. Taxable to recipient, however.

· Pension Plans: Private plans into which employees may contribute savings toward their retirement, some or all of which may be matched by contributions from their employer.

· COBRA: Federal law extending an employee's right to participate (at the employee's expense) in employer-provided medical, dental, and/or optical insurance beyond the date of the employee's voluntary or involuntary termination, usually for a period of up to 18 months.

FAMILY AND MEDICAL LEAVE

· Family and Medical Leave Act ("FMLA"): Federal law requiring employers with 50 or more employees to provide their employees with up to 12 weeks of family or medical leave during any twelve-month period.

· During the leave period, the employer must continue to provide benefits to the employee; however, the employer is not required to pay the employee while on leave.

· The employer must also guarantee that the worker may return to his or her prior job or to a comparable job unless the employee is a "key employee" (defined as someone whose income is in the top 10% of the firm's workforce).

· The FMLA does not apply to employees who have worked for the employer (i) less than one year or (ii) less than 25 hours per week for the previous year.

EMPLOYEE PRIVACY RIGHTS

· Employee Polygraph Protection Act: Federal law prohibiting employers from:

(1) requiring or causing employees or applicants to take a lie-detector test;

(2) using, accepting, or referring to the results of any lie-detector test taken by an employee or applicant; and

(3) taking or threatening any negative employment action based on an employee's or applicant's lie-detector test results or his or her refusal to take a lie-detector test.

Drug Testing: Amtrac case

Oil fields

AIDS testing- ADA issues

Electronic Communications Privacy Act: Telephone/ email: case: compare sending versus receiving email.

WRONGFUL DISCHARGE

· As a general rule, employment is presumed to be "at-will" --meaning that an employer may terminate an employee at any time, for any reason, or for no reason at all. This is the Texas rule. There are, however, certain exceptions.

· Employment Contract (contract theory): Where the employer and employee have a contract which sets forth those circumstances under which the employee may be involuntarily terminated, termination under any other circumstances may be wrongful discharge -- that is, termination in violation of the contract.

· Public Policy Exclusion: (tort theory- firing alphabetically, etc). Many states prohibit an employer from terminating an employee for refusing to perform an illegal or unethical act or for refusing to take or fail to take any other action contrary to fundamental public policy.

· Whistleblowers: Many states also prohibit employers from terminating employees who report illegal or unethical conduct to the authorities, the press, and/or their superiors.