Ch 34 Employment, Immigration, and Labor Law

Question 1

employment at will def

Answer 1

either party may terminate employment relationship at any time and for any reason

Question 2

exceptions to employment at will based on (3)

Answer 2

contract theory, tort theory, public theory

Question 3

(employment at will) common law exceptions based on contract theory

Answer 3

Some courts held that an implied employment contract exists between the employer and empee -> if fired outside terms o implied contract, they may succeed in action f breach o contract
- Exists if empee has reasonable expectations
Employers oral promises regarding discharge policy may also be considered part o implied contract

Question 4

(employment at will) common law exceptions based on tort theory

Answer 4

Abusive discharge policies -> lawsuit f intentional infliction o emotional distress/defamation
Fraud

Question 5

(employment at will) common law exceptions based on public policy

Answer 5

Courts rq that public policy involved be expressed clearly in statutory law gov the juris
Whistleblowing
discrimination

Question 6

Whistleblowing def and law

Answer 6

telling gov authorities, upper-lvl managers, / media that the empr - engages in some unsafe/illegal activity
- Seek protection fr retaliation under whistleblower protection act

Question 7

wrongful discharge

Answer 7

action brought by empee when empr discharges empee in violation o employment contract or a statutory law protecting empees

Question 8

Davis-Bacon act

Answer 8

rq contractors + subcontractors working on fed gov construction projects to pay “prevailing wages” to empees

Question 9

Walsh-Healey act

Answer 9

applies to US gov contracts, rq min wage + overtime pay at 1.5 X rgular pay rates, paid to empees o manu/suppliers entering into contracts w agencies o fed gov

Question 10

Fair labor standard act, covers (4)?

Answer 10

extended wage-hr rq to cover all employers engaged in interstate commerce
child labor, min wage, tipped workers, overtime

Question 11

child labor - basis in law? age categories?

Answer 11

fair labor standard act
under 14 - newspaper, work f parent, entertainment, ~ agri
14-15: X hazardous occupations
16-18: work + hr restrictions, X haz

Question 12

minimum wage - basis in law? def?

Answer 12

fair labor standard act
Rq for covered nonexempt employees
X rq that employer offer empees personal breaks, but if offered, must be compensated

Question 13

tipped workers - basis in law? def?

Answer 13

fair labor standard act

Emprs get tip credit toward min wage amount

Question 14

overtime - basis in law? restrictions/rules?

Answer 14

Any empee who works >40hr/week must be paid no less than 1.5x their regular pay for all hrs worked over 40
Exceptions:
executive + admin, pro empees, outside sales*, +coders

Question 15

WARN act, why, violation

Answer 15

emprs w/ at least 100 full time empees - rq to provide 60 days notice b4 implementing mass layoff/closing plant that employrs >50 full time workers
Alerts state agencies so that they can provide training + other resources f displaced workers
Empr that violates act can be fined; empees can recover back pay + reasonable attorneys’ fees

Question 16

mass layoff

Answer 16

layoff o at least 1/3 o FT empees @ a particular job site

Question 17

FMLA act - general, fed/state, rq

Answer 17

family and medical leave
allows empees to take time off for family/medical reasons / in situation that arise fr mili service
Maj~ states have sim legislation, FMLA X superseded any state/local law that provides more generous protection
“Employers generally - rq to notify empees when an absence wll be counted v FMLA leave. If an employer fails to provide such notice, and that failure to notify causes harm to the employee, the empr can be sanctioned”

Question 18

FMLA act - coverage

Answer 18

Care f newborn w/in 1 yr o birth

• Care f adopted/foster child w/in 1 yr o time child - placed w empee
• Care f empee’s spouse, child, parent w/ serious health condition
• Empee suffers fr serious health condition + unable to perf essential f(x)s o job
• For any qulaifying exigency (nonmedical energebcy) arising b/c mili member on active duty

Question 19

FMLA benefits and protections (2) + exception (1)

Answer 19

Empr must continue health care coverage on same terms as if empee had continued to work
Must be restored to original position or comparable position
Exception: avoid reinstating a key employee

Question 20

key employee

Answer 20

empee whose pay falls within top 10% of firm’s workforce

Question 21

FMLA violation remedies (7)

Answer 21

Damages to compensate empee f lost wages + benefits, denied compensation, + actial monetary losses
Compensatory damages
Job reinstatement
Promotion, if one has been denied
Supervisors also held personally liable
If successful: 
Court costs + attorneys fees
bad faith -> plain* can receive 2x amount o damages awarded by judge/jury

Question 22

OSHA, basis

Answer 22

occupational safety and health act

general duty to keep workplace safe

Question 23

OSHA notice, record, and reports

Answer 23

Rq emprs post certain notices in workplace, maintain specific records, + submit records
keep occupational injury and illness records f e empee that - avail f inspection when requested by OSHA compliance officer
Work rela death/serious injury rq hospitalization -> report directly to OSHA -> mandatory complete inspection o the premises
Death report in 8 hrs; 14 hrs f injruy; else: fine

Question 24

state workers compensation laws

Answer 24

All states rq emprs to provide workers compensation insurance
- Most have fund that emprs pay into f workers comp coverage OR emprs can buy insurance fr priv insurer
- Most allow certain emprs to be self-insured, they can pay claims + X need insurance
- X state covers all empees under workers comp statute
- - Ex. Domestic workers, agri workers, temp empees, empees o common carriers = co that provide transo services to public
Unless minor

Question 25

Rq for recieving workers comp(4)

Answer 25

Existence o employment rela Accidental injury that occurred on job/course o employement, regardless o fault Injured empee must notify empr promptly, usu 30 days within accident Must file workers comp claim within period 60days-2yrs fr time injury - first noticed, rather than fr time o accident

Question 26

Workers comp v litigation

Answer 26

If empee accepts workers comp benefits, they may X sue f injruies caused by emprs negligence Worker may sue emp who intentionally injures worker

Question 27

Social security

Answer 27

Retired -> monthly payments fr social security admin | Benefits - fixed by statute but increase auto w increases in cost o living

Question 28

medicare

Answer 28

fed goc health insurance program admin by ssecurity admin f people 65/+ + for some under 65 who are disabled Can obtain more insurance if pay monthly premiums

Question 29

tax contributions

Answer 29

Emprs + empees contribute to Ssecurity + medicare Empr withholds empee FICA contributions fr empee wages + matches - Self-employed pay both Medicare has no cap on wages subject to tax

Question 30

erisa / employee retirement income security act

Answer 30

- X rq empr to est pension plan; but when plan exists, ERIA provides standards f its management - Est Pension Benefit Guaranty Corp == indep fed agency providing timely +uninterrupted payment o vulntary private pension benefits

Question 31

(erisa) Vesting

Answer 31

gives empee legal right to receive pension benefits when they stop working

Question 32

futa / federal unemployment tax act

Answer 32

Rq emprs to pay unemp taxes at regular intervals -> paid to qualified unemp workers

Question 33

COBRA / consolidated omnibus budget reconciliation act

Answer 33

enables empees to continue f a lim time, their health care coverage after they - X longer eligible f group health insurance plans - Workers pay the premiums f the continued coverage, have 60 days fr date when gorup coverage would stop to decide whether to continue w plan - - If cont -> empr has to keep policy active for up to 18 mo, coverage must be same as that porvided to worker prior to termination/reduction - X empr can elim workers med, vision, / dental insurance when workes emp - terminated/ when reduction in workers hrs would affect coverage - Emprs must inform o COBRA's provisions b4 termination /reduction o work hrs - Noncompliance -> tax o up to 10% annual cost o group plan or 500K, whichever - less Exceptions: workers fired f gross misconduct

Question 34

HIPAA / health insurance portability and accountability act

Answer 34

restricts manner in which emprs collect, use, + disclose health info o empees + their families Must designate pivacy officials, distribute privacy notices, + train empees to ensure empees health info X disclosed to unauthorized parties

Question 35

affordable care act

Answer 35

most emprs w 50/+ FT empees to offer health insurance benefits, any busi offering may be eligible f tax credits Failure -> fine f e/ empee after first 30 * (50/30 rule)

Question 36

Electronic Communications Privacy Act

Answer 36

prohibits emprs fr intercepting empees personal electronic comm unless they - made on device + sys furnished by empr

Question 37

Employee reasonable expectation of privacy (2)

Answer 37

Norm, if empees - informed that their comm - being monitored -> X reasonably expect those interactions to be privatte Empees X reasonable expectation o privacy when using a sus provided by empr

Question 38

Employee Polygraph Protection act + excpetions (4)

Answer 38

generally prohibits emprs fr rq empees /job applicants to take lie-detector test/suggesting/requesting they do so Restricts emprs ability to use/ask abt result o any lie detector test/take any neg employment action based on results Excpetions: gov emprs, certain security service firms, co that manu + distribute controlled substances, when investigating losses attributable to theft

Question 39

drug testing - public employers

Answer 39

gov emprs - constrained in drug testing by 4th A prohibiting unreasonable search + seizure Unless transpo worker/ job that may threaten publicc safety; reaosnable basis f suspecting public empees o drug use

Question 40

drug testing - private employers | state/fed?

Answer 40

state Random drug test + zero tolerance policies have been held to be reasonable empees o priv emprs under contract w fed gov reasonable to undergo standard background investigations to disclose potential drug use

Question 41

Immigration act of 1990

Answer 41

place caps on # o visas that can be issued to immigrants e yr, incl employment based visas

Question 42

2 types of employment based visas

Answer 42

perm (immigrant) / temp (nonimmigrant)

Question 43

I-551 perma resident card/green card

Answer 43

Can hire noncitizen if they are self-authorized

Question 44

H-1B visa program

Answer 44

empee must be qualified in a specialty occupation == indv has highly specializes knowledge + has attained BA or higher - Stay 3-6 yrs + can work only f sponsoring employer

Question 45

(h1b visa) labor certification

Answer 45

Empr must agree to provide a wage lvl at least equal to wages offered to other idv w sim experience + qualifications Hiring will X adversely affect other workers similarly employed Rq to inform US workers o intent to hire a foreign worker by posting the form USDep o Labor reviews applications + may reject for omissions/inaccruacies

Question 46

H2, o, l, e visa

Answer 46

1. workers perf agri labor o seasonabl nature 2: * w/ extraordiantry ability in science, arts, edu, busi, / athletics which has been demon by sustained natl/intl acclaim 3: friegn managers/execs to work inside US 4: entry o certain foreign investors/entrepreneurs

Question 47

State v fed immigration legislation

Answer 47

fed gov control but AZ held show me your papers provision

Question 48

norris-laguardia act

Answer 48

protected peaceful strikes, picketing, and boycotts Restricted power o fed courts to issue injunctions v unions engaged in peaceful strikes National policy permitting empees to org

Question 49

national labor relations act - general, established (4)

Answer 49

rights o empees to engage in collective bargaining + to strike no unfair labor practices national labor relations board good faith bargaining

Question 50

(nlra) unfair labor practces (5)

Answer 50

Interference w efforts o empees to form, join, /assist labor org . Engage in concerted activities f their mutual aid/protection Employers domination o a labor org/contribution o fin / other supp to it Discrimination in hiring o/awarding o tenure to employees f reason o union affiliation Discrimination v empees f filing charges under act /giving testimony under the act Refusal to bargain collectively w the duly designated rep o the employees

Question 51

national labor relations board responsibilities (3)

Answer 51

oversee union elections + prevent emprs fr engaging in unfair + illegal union activities + unfair labor practices Authority to investigate empees charges o unfair labor practice + file complaint v emprs Violation -> crease + desist order == compel empr to stop engaging in unfair practices, enforaceable by fed appellate court

Question 52

workers protected by the nlra (3)

Answer 52

Employee/job applicant Indv hired by union to org co - considered "employees" ~ temp worker hired thr employment agency

Question 53

labor management relations act (4)

Answer 53

X Closed shop = firm that rq union membership as condition o employment OK Union shop = X rq union membership but can rq workers join union after specified time on job Unions X refuse to bargain w employers, X some types o picketing, featherbedding = causing emprs to hire more empees than necessary OK right to work laws = laws making it illegal f union membership to be rq f continued employment in any est

Question 54

labor management reporting and disclosure act (2)

Answer 54

X hot cargo agreements | reg union internal business proccedures, incl elections

Question 55

hot cargo agreements

Answer 55

emprs voluntarily agree w unions not to handle, use / deal in goods o other emprs produced by nonunion empees

Question 56

union organization process (4)

Answer 56

workers sign authorization card -> majority -> union org present cards to employer + ask f formal recog o union -> empr X rq to recog @ this pt, but pay do so voluntarily on a showing o majority supp

Question 57

authorization card says____

Answer 57

usu states that the worker desires to have a certain union rep the workforce

Question 58

NLRB election rules/timeline

Answer 58

Time b4 election held can be as soon as 10 days after filing rq co hold pre-election hearing w/in 8 days after it recieves petition f org election Day before heating, co must submit statement o position laying out e arg it intends to make v union otherwise can be excluded fr evidence at hearing NLRB supervises election + ensures secret voting + voter eligibility Majority = NLRB certifies union as bargaining rep f employees

Question 59

union election campaigns (2)

Answer 59

Empr has control over unionizing activities on co property + working hrs -> ~ limit campaign act.s o union supp as long as as it has a legit busi reason, can reasonably lim when + where union solicitation may occur in work Employer may campaign, but NLRB monitors + threats/unfair labor practces -> may certify union even w loss or order new election

Question 60

collective bargaining

Answer 60

process by which labor + mgto negotiate terms + conditions o employment; allows reps elected by union mem to speak f them @ bargaining table Certifies union -> union - exclusive bargaining rep o workers Not obligated to reach agreement, bargaining must be geared to reaching a compromise

Question 61

Strikes def +implications

Answer 61

unionized empees leave jobs + refuse to work, typically picket = standing outside facility w signs stating compalints Lose rights to be paid, mgto loses production + possible customers when order X filled

Question 62

who have the right to strike?

Answer 62

People who - X empees have right to participate in picket an employer Workers have right to refuse to cross a picket line o fellow workers engaged in a lawful strike Emprs - permitted to hire replacement workers to sub

Question 63

illegal strikes (6)

Answer 63

Violent strikes/threat o violence Massed picketing (form barrier + deny people access to plant) Sit-down strikes No-strike clause - was in previous collective bargaining agreement btwn empr + union Secondary boycotts Wildcat strikes

Question 64

sit down stirke secondary boycotts wildcatt strikes

Answer 64

stay in plant w/o working directed v someone other than empr small num o workers call own strike (only union can)

Question 65

after strike ends... (2)

Answer 65

§ Striking workers X guaranteed right to return to jobs after strike Employers X discriminate v former econ strikers + those who - rehired retain seniority rights

Question 66

lockouts (4)

Answer 66

when empr shuts down o prevent empees fr working Happens when empr believes strike - imminent/parties have reached stalemate in collective bargaining X use as tool to break union + pressure empees into decertification Must show come econ justification f lockout

Question 67

decertification

Answer 67

union mem vote to dissociate fr union