Transcript CHAPTER 21 Employment Law

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.)
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HOW ARE EMPLOYMENT
CONTRACTS MADE?
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Terms of the employment contract
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Express agreements
Implied agreements
Terms imposed by law
(Not looking at the “4 corners.”)
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HOW ARE EMPLOYMENT
CONTRACTS TERMINATED?
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By performance
By termination at will
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Wrongful discharge
Violation of contract terms
Government employees
By material breach
Unemployment compensation
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Employment at Will
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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.
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Employment at Will
(continued)
Statutory
Exceptions
Contract
Exceptions
Tort Exceptions
Public Policy
Exception
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WHAT ARE AN
EMPLOYER’S DUTIES?
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Duties owed to employees
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Reasonable treatment
Safe working conditions
Fair labor standards
Payroll deductions
Military service
Voting
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WHAT ARE AN
EMPLOYER’S DUTIES?
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Duties owed to minors
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(continued)
State laws
Federal law
Duties owed to those injured by
employees
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WHAT ARE AN
EMPLOYEE’S DUTIES?
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Duty
Duty
Duty
Duty
Duty
to fulfill the employment contract
of obedience
of reasonable skill
of loyalty and honesty
of reasonable performance
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Government Employees
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Most “public” employees are entitled to
Due Process (notice and hearing)
before they can be discharged.
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APPROACHES TO PROTECT WORKERS
FROM ON-THE-JOB INJURIES
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Preventive approach
After-the-fact compensation for injuries.
i.e. Worker’s Compensation (discussed
further)
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REQUIRING A
SAFE WORKPLACE
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Legislative background of OSHA
OSHA’s responsibilities
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Assure a hazard-free workplace
Develop and enforce specific regulations
Conduct workplace inspections
Dealing with OSHA violations
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
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.
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NEGLIGENCE LAW AND
WORKERS’ COMPENSATION
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Employee negligence suits
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Difficulties for employees in negligence
suits
The compromise of workers’
compensation
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Workers’ Compensation Acts
Acts that compensate workers
and their families if workers are
injured in connection with their
jobs.
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NEGLIGENCE LAW AND
WORKERS’ COMPENSATION
(continued)
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Recovering in lieu of workers’
compensation
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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
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Workers’ Compensation
Insurance
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States usually require
employers to:
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To pay for workers’
compensation insurance, or
To self-insure by making
payments into a contingency
fund.
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Employment Related Injury
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To recover under workers’
compensation, the worker’s
injuries must have been
employment-related.
Stress may be a
compensable work-related
injury.
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Exclusive Remedy
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Workers’ compensation is
an exclusive remedy.
Workers cannot sue their
employers in court for
damages.
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Exception occurs when an
employer intentionally injures
an employee (tort).
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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.
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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.
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Occupational Safety and Health
Act (continued)
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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.
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Types of OSHA Standards
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Specific Duty
Standard

General Duty
Standard
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Addresses a safety
problem of a specific
duty nature.
 e.g., requirement for
a safety guard on a
particular type of
equipment
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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.”
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Fair Labor Standards Act (FLSA)
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Federal act enacted in 1938 to
protect workers.
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Prohibits child labor
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Establishes minimum wage
requirements
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Establishes overtime pay
requirements
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Child Labor
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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.
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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.
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Minimum Wage
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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, 2009.
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(Calif. Minimum wage is $8.00 per hour.)
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Overtime Pay
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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.
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Other Federal Employment
Laws (1 of 2)
Law
Description
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.)
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Other Federal Employment
Laws (2 of 2)
Law
Description
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.
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Labor Law
FOCUS
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What was a recent strike in our
community?
Who was on strike?
What were the issues?
What was the outcome?
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The right of workers to form,
join, and assist labor unions is
a statutorily protected right in
the United States.
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HOW IS A UNION
ESTABLISHED?
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Determining the bargaining unit
Attempting voluntary recognition
Holding a certification election
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Certification campaigns
Decertification
Negotiating the employment contract
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Union and agency shops
Open and closed shops
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Steps in Establishing a Union
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I. Establish a Bargaining Unit
A) Determine which employees should
be represented.
B) Determine whether a majority wants
union representation.
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Steps in Establishing a Union
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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.
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Steps in Establishing a Union
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III. Become Exclusive Bargaining Agent
A) NLRB conducts a secret vote of
workers.
B) If union selected, NLRB
acknowledges it as bargaining agent.
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Federal Labor Union Statutes
Norris-LaGuardia Act
National Labor Relations
Act
Labor-Management
Relations Act
Railway Labor Act
Labor-Management
Reporting and
Disclosure Act
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HOW IS A LABOR CONTRACT
NEGOTIATED WITH A UNION?
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Collective bargaining
Strike
Lockout
Mediation
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Employer Lockout
Act of the employer to prevent
employees from entering the work
premises when the employer
reasonably anticipates a strike.
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WHAT ARE UNFAIR
LABOR PRACTICES?
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Management’s unfair labor practices
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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
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WHAT ARE UNFAIR
LABOR PRACTICES?
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(continued)
Unfair labor practices by unions
Unfair labor practices in strikes and
boycotts
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Strikes
Boycotts
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Equal Opportunity in
Employment
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Do employers discriminate…
to find the best person for the job
based on individual abilities?
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WHEN IS
DISCRIMINATION ILLEGAL?
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Protected classes
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Race and color
Gender
Medical Condition (Pregnancy)
Age
Religion
Disability
National origin
Chapter 21
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WHEN IS
DISCRIMINATION ILLEGAL?
(continued)
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Scope of protection
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Against unjustified conditions of
employment
Governing most employers
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LAWS THAT PROHIBIT
EMPLOYMENT DISCRIMINATION
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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
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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
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Sexual Harassment
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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.
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Sexual Harassment
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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.
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DISPARATE IMPACT CASES
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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
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UNEQUAL TREATMENT CASES
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Employer’s defenses
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Business necessity
Bona fide occupational qualification
Seniority
Pretexts
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Defenses to A Title VII Action
Merit
Seniority
Bona Fide Occupational
Qualification (BFOQ)
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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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Chapter 21
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