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Business Law > Ch 34 Employment, Immigration, and Labor Law > Flashcards

Ch 34 Employment, Immigration, and Labor Law Flashcards

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1
Q

employment at will def

A

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

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2
Q

exceptions to employment at will based on (3)

A

contract theory, tort theory, public theory

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3
Q

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

A

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

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4
Q

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

A

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

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5
Q

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

A

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

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6
Q

Whistleblowing def and law

A

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

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7
Q

wrongful discharge

A

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

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8
Q

Davis-Bacon act

A

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

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9
Q

Walsh-Healey act

A

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

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10
Q

Fair labor standard act, covers (4)?

A

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

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11
Q

child labor - basis in law? age categories?

A

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

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12
Q

minimum wage - basis in law? def?

A

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

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13
Q

tipped workers - basis in law? def?

A

fair labor standard act

Emprs get tip credit toward min wage amount

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14
Q

overtime - basis in law? restrictions/rules?

A

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

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15
Q

WARN act, why, violation

A

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

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16
Q

mass layoff

A

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

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17
Q

FMLA act - general, fed/state, rq

A

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”

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18
Q

FMLA act - coverage

A

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
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19
Q

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

A

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

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20
Q

key employee

A

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

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21
Q

FMLA violation remedies (7)

A 
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
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22
Q

OSHA, basis

A

occupational safety and health act

general duty to keep workplace safe

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23
Q

OSHA notice, record, and reports

A

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

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24
Q

state workers compensation laws

A

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

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25
Q

Rq for recieving workers comp(4)

A

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

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26
Q

Workers comp v litigation

A

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

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27
Q

Social security

A

Retired -> monthly payments fr social security admin

Benefits - fixed by statute but increase auto w increases in cost o living

28
Q

medicare

A

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

29
Q

tax contributions

A

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

30
Q

erisa / employee retirement income security act

A
  • 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
31
Q

(erisa) Vesting

A

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

32
Q

futa / federal unemployment tax act

A

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

33
Q

COBRA / consolidated omnibus budget reconciliation act

A

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

34
Q

HIPAA / health insurance portability and accountability act

A

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

35
Q

affordable care act

A

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)

36
Q

Electronic Communications Privacy Act

A

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

37
Q

Employee reasonable expectation of privacy (2)

A

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

38
Q

Employee Polygraph Protection act + excpetions (4)

A

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

39
Q

drug testing - public employers

A

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

40
Q

drug testing - private employers

state/fed?

A

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

41
Q

Immigration act of 1990

A

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

42
Q

2 types of employment based visas

A

perm (immigrant) / temp (nonimmigrant)

43
Q

I-551 perma resident card/green card

A

Can hire noncitizen if they are self-authorized

44
Q

H-1B visa program

A

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

45
Q

(h1b visa) labor certification

A

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

46
Q

H2, o, l, e visa

A
  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
47
Q

State v fed immigration legislation

A

fed gov control but AZ held show me your papers provision

48
Q

norris-laguardia act

A

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

49
Q

national labor relations act - general, established (4)

A

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

50
Q

(nlra) unfair labor practces (5)

A

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

51
Q

national labor relations board responsibilities (3)

A

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

52
Q

workers protected by the nlra (3)

A

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

53
Q

labor management relations act (4)

A

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

54
Q

labor management reporting and disclosure act (2)

A

X hot cargo agreements

reg union internal business proccedures, incl elections

55
Q

hot cargo agreements

A

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

56
Q

union organization process (4)

A

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

57
Q

authorization card says____

A

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

58
Q

NLRB election rules/timeline

A

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

59
Q

union election campaigns (2)

A

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

60
Q

collective bargaining

A

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

61
Q

Strikes def +implications

A

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

62
Q

who have the right to strike?

A

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

63
Q

illegal strikes (6)

A

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

64
Q

sit down stirke
secondary boycotts
wildcatt strikes

A

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

65
Q

after strike ends… (2)

A

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

66
Q

lockouts (4)

A

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

67
Q

decertification

A

union mem vote to dissociate fr union

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