Ch 29 Employment and Labor Law Flashcards
Employment at Will
Conditions were particularly bad for children. How did society arrive at a place where workers (children, no less) were treated this way? Why were these abuses allowed?
For most of history, the concept of career planning was unknown. By and large, people were born into their jobs. Whatever their parents had been—landowner, soldier, farmer, servant, merchant, or beggar—they became, too. People not only knew their place, they also understood the rights and obligations inherent in each position. The landowner had the right to receive labor from his tenants, but he also cared for them if they fell ill.
Common Law Protections
(Wrongful Discharge: Violating Public Policy, Contract Law, Tort Law, )
- wrongful discharge: An employer may not fire a worker for a reason that violates basic social rights, duties, or responsibilities
[Wrongful Discharge: Violating Public Policy]
-in essence, the public policy rule prohibits an employer from firing a worker for reasons that violate fundamental social rights, duties, or responsibilities.
(Refusing to Violate the Law.)
-As a general rule, employees may not be discharged for refusing to break the law.
(Exercising a Legal Right)
-As a general rule, an employer may not discharge a worker for exercising a legal right if that right supports public policy.
(Supporting Societal Values.)
-Courts are sometimes willing to protect employees who do the right thing, even if they violate the boss’s orders.
[Contract Law]
Traditionally, many employers (and employees) thought that only a formal, signed document qualified as an employment contract. Increasingly, however, courts have been willing to enforce an employer’s more casual promises,
(Promises Made During the Hiring Process.)
-Promises made to job applicants are generally enforceable, even if not approved by the company’s top executives.
(Employee Handbooks.)
- an employee handbook creates a contract
(Covenant of Good Faith and Fair Dealing.)
[Tort Law]
Workers have successfully sued their employers under the following tort theories.
(Defamation.)
-Employers may be liable for defamation when they give false references about an employee
-More than half of the states recognize a qualified privilege for employers who give references about former employees.
* qualified privilege: Employers who give references are liable only for false statements that they know to be false or that are primarily motivated by ill will.
-Generally, courts have held that employers do not have a legal obligation to disclose information about former employees. But, in the case of violence, courts are divided.
(Workplace Bullying.)
Almost 60 percent of employees have been bullied at work.
- intentional infliction of emotional distress: An intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm.
Family and Medical Leave Act
-The Family and Medical Leave Act (FMLA) guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or a serious health condition of their own or in their immediate family.
Here are some examples of what counts as a “serious health condition” under the FMLA:
-Any health issue that requires hospitalization
-A condition that requires more than one visit to a healthcare provider; the visits may be spread out over as long as a year
-A condition that requires only one visit to a healthcare provider but also requires a course of treatment such as physical therapy or prescription medication.
Fair Workweek Laws
Oregon) and cities (such as Chicago and Seattle) have passed laws that require employers to:
Provide 14 days’ notice of work schedules
Pay workers extra for each shift cancelled on short notice
Pay extra for split shifts
Avoid retaliating against workers who ask for changes in their work schedule.
Whistleblowing
whistleblowers: Someone who discloses wrongdoing
The law on whistleblowers varies across the country. As a general rule, however, whistleblowers are protected in the following situations:
-The False Claims Act. Darity recovered under the federal False Claims Act, a statute that permits whistleblowers to bring lawsuits against anyone who defrauds the government and prohibits an employer from retaliating against workers who file suit under this statute.
-Sarbanes-Oxley Act of 2002. This act protects employees of publicly traded companies who provide evidence of fraud to investigators (whether in or outside the company)
-The 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 whatever award the government receives, provided that the award tops $1 million.
-Constitutional protection for government employees. Employees of federal, state, and local governments have a right to free speech under the U.S. 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. All 50 states have laws that protect whistleblowers from retaliation by their employers but the scope of this protection varies greatly from state to state. Most courts, however, prohibit the discharge of employees who report illegal activity
Workplace Freedom
The line between home and workplace often blurs. Employees respond to work emails 24/7, while their behavior at home (say, smoking or drug use) can affect their employer. This section deals with worker freedom: the right to personal lifestyle choices and to the public expression of opinions.
Employers do have the right to fire workers for off-duty conduct.
Off-Duty Activities
(Lifestyle Laws, Smoking, Alcohol and Drug Use, )
-In the absence of a specific law to the contrary, employers do have the right to fire workers for off-duty conduct.
[Lifestyle Laws]
-A few states, such as California, have passed lifestyle laws that protect the right of employees to engage in any lawful activity or use any lawful product when off duty.
[Smoking]
-In roughly 60 percent of the states, however, employers cannot prohibit workers from smoking.
[Alcohol and Drug Use]
(Private Employers.)
-Under federal law, private employers are permitted to randomly test job applicants and workers for alcohol and illegal drugs.
-the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal employment laws, permits employers to fire or refuse to hire workers for using prescribed drugs only if that use creates a safety issue.
(Government Employers.)
The Right to Free Speech
(The National Labor Relations Act, Social Media Policies, Privacy on Social Media, )
[The National Labor Relations Act]
-the NLRA also protects all employees
1.who engage in collective activity
2.relating to work conditions and
3.who are not supervisors.
- even non-unionized workers cannot be fired for complaining about their jobs, so long as these complaints are shared with other employees and are not inappropriately hostile or violent.
[Social Media Policies]
- policies violate the NLRA if they unreasonably limit employee speech about work conditions.
- Note, however, that to be protected, the employee speech must be “concerted.”
[Privacy on Social Media]
However, an employer has the right to monitor workers’ electronic communications if
1.the employee consents,
2.the monitoring occurs in the ordinary course of business, or
3.in the case of email, if the employer provides the computer system.
Lie Detector Tests
-Under the Employee Polygraph Protection Act of 1988, employers may not require, or even suggest, that an employee or job candidate submit to a lie detector test except in the following cases:
=An employee who is part of an “ongoing investigation” into crimes that have already occurred;
=An applicant applying for a government job; or
=An applicant for a job in public transport, security services, banking, or at pharmaceutical firms that deal with controlled substances.
OSHA
-OSHA has the following provisions
* General duty. Employers are under a general duty to keep their workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.
* Specific health and safety standards. Employers must comply with specific health and safety standards such as those that protect workers from respiratory hazards at work.
* Records. Employers must keep records of all workplace injuries and accidents.
* Oversight. The Occupational Safety and Health Administration (which is also known as OSHA) may inspect workplaces to ensure that they are safe. OSHA may assess fines for violations and order employers to correct unsafe conditions.
Employee Data
Supreme Court of Pennsylvania held that an employer must use reasonable care to protect its employees’ sensitive personal information. Other courts have taken a similar view.
Guns
-Employers have the right to prohibit guns in the workplace but, in almost half the states, Bring Your Gun to Work laws prevent companies from banning firearms in their parking lot.
Financial Protection
Congress and the states have enacted laws designed to provide employees with a measure of financial security. All of the laws in this section were created by statute, not by the courts.
Fair Labor Standards Act
-The Fair Labor Standards Act (FLSA) regulates wages and limits child labor.
-The FLSA also prohibits “oppressive child labor,”
Workers’ Compensation
-Workers’ compensation statutes ensure that employees receive payment for injuries incurred at work.
= but employers frequently won anyway by claiming that
-the injured worker was contributorily negligent,
-a fellow employee had caused the accident, or
-the injured worker had assumed the risk of injury.
