2 - Ch 38 Flashcards
characteristics of employment relationship
employee is hired to work under the control of the employer
creation of employment relationship
individual employment contracts
collective bargaining contracts: representatives bargain to an agreement on wages, hours and working conditions
Duration and Termination of employment contract
employment-at-will doctrine and developing exceptions: the employer can terminate the contract at any time, for any reason. Bars employees from being fired when against public policy.
employer adjustments: policy manuals stipulate no assurance of employment and cause is not
justified discharge: employers have the right to terminate for cause and lay off employees due to economic conditions
Whistleblower protection under the sarbanes-oxley and dodd-franks acts
protection provided: publicly-traded companies cannot take adverse action against an employee who provides information or regarding fraud
procedures: individual subject to an adverse action must file a timely complaint with OSHA
the dodd-frank expansion: expands whistleblower protection to a wide range of financial service employees. it expands the statute of limitations, allows for an immediate lawsuit in federal district court and expands recovery amounts
duties of the employee
services
trade secrets: agreement to refrain from disclosing trade secrets is binding
inventions: without agreement they belong to employee. employer has a shop right to use
rights of the employee
compensation: employees must be paid all amounts due, including accrued vacations and bonuses
federal wage and hour law
-subminimum wage provisions: full-time students and those with impaired productive capacity can be paid less than minimum wage
-wage issues: deductions from wages for shortages and tools are not legal if they reduce wages below minimum wage
-overtime pay: employees must be paid at one and one half times regular rate for each hour worked over 40 hours per week
-child labor provisions: limits hours of work for minors under 16 and lists hazardous occupations too dangerous for them
the national labor relations act
employees have the right to form a union to obtain a collective bargaining contract or to refrain from organizational activities
national labor relations board
investigates and prosecute all unfair labor practice cases
election conduct
protection rules to insure election will express true desire of employees
union activity on private property
employers may prohibit union solicitation during work periods. during nonworking periods may not impede employees’ exercise of rights under the law
social media and section 7: protected activity for union and nonunion workers
employees have a right to discuss their terms and conditions of employment
firing employees for union activity
NLRA prohibits discrimination because of labor activity
duty of employer to bargain collectively
mandatory vs. permissive subjects of bargaining
right to work
the NLRA allows states to enact right-to-work laws which restrict unions and employers from negotiating clauses that make union membership compulsory
strike and picketing activity
rights of strikers: entitled to reinstatement when positions are not filled with permanent replacements
picketing: placing persons outside a business during a labor dispute is legal. Shutting down the entrance is illegal. Secondary picketing occurs with no dispute and is generally illegal
regulation of internal union affairs
to ensure honest and democratic administration of unions Congress passed the Labor-Management Reporting and Disclosure Act
ERISA
-administration: A “benefits claim committee” makes determinations about coverage issues. courts will not disturb findings unless the determinations are “arbitrary and capricious.”
-fiduciary standards and reporting: administrators must protect the interest of employees
-vesting: right of an employee to pension benefits paid into a pension plan in the employee’s name by the employer
-funding: a defined contribution plan provides for benefits based on contributions. a defined benefit plan is a commitment to make specific future payments
-enforcement: ERISA authorizes the secretary of labor and employees to bring court actions to compel observance of requirements
unemployment compensation
eligibility: must be available for placements in a similar job at comparable pay. If an employee quits without cause or is fired for misconduct, generally not eligible
funding: employers are taxed based on “experience rating” less claims means lower taxes and more claims means higher taxes
family and medical leaves of absence
12 week unpaid maternity, paternity, and adoption leaves are available based on eligibility
leaves for military service under USERRA
protections: generally requires “prompt re-employment” to the same status for returning reservists
defenses: employers have a right to terminate a reemployed serviceperson for cause. may be excused from reemployment impossible or an undue hardship
social security
employers and employees pay social security taxes to provide retirement benefits, disability benefits, life insurance benefits, and medicare
employer duties
to provide a place of employment free from hazards likely to cause death or serious injury and maintain records of serious illnesses and injuries
who regulates and enforces employee’s health and safety standards
OSHA
state “right-to-know” legislation
require employers to inform their employees of any hazardous substances present in the workplace
common law status of employer
duties: to furnish employees a reasonably safe place to work, tools, and sufficient help for the work involved
defenses: employer not liable to fellow employee’s negligence, ordinary work hazards or employee’s contributory negligence
compensation for employees’ injuries
statutory changes
modification of employer’s common law defenses
workers’ compensation: usually provides immediate medical benefits, prompt periodic wage replacement and a limited death benefit
source of privacy
privacy rights when working in the private sector not directly controlled by Bill or Rights. Limited rights by statue, case law and agreements
monitoring employee telephone conversions
federal wiretapping act allows monitoring of phone calls in the ‘ordinary course of business’ or with employee consent. personal calls may not be monitored
email monitoring
employers have a broad latitude to monitor employee e mail use
employee privacy property searches
whether or not allowed depends on facts and circumstances
employee privacy drug and alcohol testing
generally permissible is based on reasonable suspicion or for mass transit and safety-sensitive positions
employer liability for employment-related immigration laws
criminal and civil penalties against employers who knowingly hire illegal aliens
action
a proceeding to enforce any right
employment-at-will doctrine
doctrine in which the employer has historically been allowed to terminate the employment contract at any time for any reason or for no reason
shop right
the right of an employer to use in business without charge an invention discovered by an employee during working hours and with the employer’s material and equipment
right-to-work laws
laws restricting unions and employees from negotiating clauses in their collective bargaining agreements that make union membership compulsory
economic strikers
union strikers trying to enforce bargaining demands when an impasse has been reached in the negotiation process for a collective bargaining agreement
primary picketing
legal presentation in front of a business notifying the public of a labor dispute
mass picketing
an illegal tactic of employees massing together in great numbers to effectively shut down entrances of the employer’s facility
secondary picketing
picketing an employer with whom a union has no dispute to persuade the employer to stop doing business with a party to the dispute; generally illegal under the NLRA
