Employee and Labor Relations Flashcards
Clayton Act
1914
Limited the use of injunctions to break strikes; exempted unions from the Sherman Act.
Payne v. The Western & Atlantic Railroad Company
1884
Defined employment at will.
Clause that states that even if workers do not join the union, they must still pay the equivalent of dues to the union.
Agency shop
Principle under which regulations that apply to employers and unions also apply to acts of their agents.
Agent-principle relationship
States that when a struck employer effectively uses the employees of an ally as strike breakers and when a union extends its primary picketing to this employer, no violation of the LMRA’s secondary boycott prohibitions exists.
Ally doctrine
Umbrella term used to describe a number of problem-solving and grievance resolution approaches.
Alternative dispute resolution (ADR)
Procedure in which disputes are submitted to one or more impartial persons for final determination.
Arbitration
Materials used in preparing a legal case (e.g. written reports, notes, data); usually excluded from discovery phase.
Attorney work product
Cards signed by employees to indicate that they want union representation.
Authorization cards
Union practice of displaying a banner outside the property of an employer to advertise union’s message.
Bannering
Group of employees a union wants to represent.
Bargaining unit
Giving moe-senior workers whose jobs have been eliminated the rights to transfer into jobs of less-senior workers
Bumping
Legal principle in which, for example, an HR department is culpable for discrimination even though HR had no desire to discriminate, such as when HR is persuaded to take an adverse action against an employee with protected statues by other biased employees who wish to discriminate against the individual.
“Cat’s paw” principle
NLRB certification indicating that a union has won an election and will be the exclusive representative of the bargaining unit.
Certification of representative
NLRB certification indicating that a union has lost an election.
Certification of results
As defined by the NLRB, an employer act that will result in hesitation by an employee to exercise protected rights under Section 7 or the NLRA.
“Chilling”
Case in which Supreme Court ruled a pre-hire employment application required that all employment disputes be settled by arbitration was enforceable under the Federal Arbitration Act.
Circuit City Stores v. Adams
Act that extended collective bargaining rights to federal employees.
Civil Service Reform Act
Act that minimally restricted the use of injunctions against labor and legalized peaceful strikes, picketing, and boycotts.
Clayton Act
Clause that states that union membership is a condition of hiring; is illegal (except in the construction industry)
Closed shops
When more than one employer negotiates with the union; also known as multiple employer bargaining.
Coalition bargaining
Process by which management and union representatives negotiate the employment conditions for a particular bargaining unit for a designated period of time.
Collective bargaining
Agreement or contract negotiated through collective bargaining process.
Collective bargaining agreement (CBA)
Group of people and resources who come together for the accomplishment of a specific organizational objective.
Committee
Dictates that custom and usage have the force of law, even if not specifically found in legislative enacted, codified, written laws.
Common law
Situation in which lawful picketing of a primary employer also affects a secondary employer that occupies common premises.
Common situs picketing
Mutuality of interests among employees in bargaining for wages, hours, and working conditions.
Community of interests
Work schedule that compresses a full week’s work into a fewer than five days.
Compressed workweek
Method of non-binding dispute resolution involving a third party who tries to help disputing parties reach a mutually agreeable decision; also known as mediation.
Conciliation (pojednanie)
Type of representation election that involves an agreement between an employer and a union to waive the pre-election hearing.
Consent election
Product boycotts involving such activities as distributing handbills, carrying placards, and urging customers to refuse to purchase products from a particular retail or wholesale business.
Consumer picketing
When an employer bargains with several unions simultaneously but on a separate basis.
Coordinated bargaining
Removes authority of a bargaining representative in a non-right-to work state to negotiate or enforce a union security clause.
Deauthorization
Means for employees to terminate union representation; removes union from its position as bargaining representative.
Decertification
Injuring someone’s reputation by making a false and malicious statement; may be spoken (slander) or written (libel)
Defamation
T ype of representation election ordered by the NLRB regional director after a pre-election hearing.
Directed election
When parties are in conflict over an issue and the outcome represents a gain for one party and a loss for the other; each party tries to negotiate for the best possible outcome.
Distributive bargaining
When a common owner operates both union and nonunion businesses.
Double breasting
Where employees agree in writing to an automatic deduction of dues from their paychecks.
Dues checkoff
Requires that union act fairly on behalf of the employees they represent in negotiating and administering collective bargaining agreements.
Duty of fair representation
Imposes on each party in a contract an obligation for honesty in the conducted of the transaction.
Duty of good faith and fair dealing
Common-law precept that imposes on employees a duty to be loyal to the employer.
Duty of loyalty
Mutual bargaining obligation of an employer and a union when a majority interest in a unionized company is sold to another employer.
Duty of successor employers or unions
1993 NLRB ruling that held certain employee committees to be illegal because Dupont management circumvented that legally chosen employee representatives and usurped the union’s right to represent its numbers.
E.I. Dupont & Company
1992 court decision that employers must deal cautiously with employee participation committees based on the LRB’s interpretation of what constitutes a company-dominated labor organization.
Electromation
Explains major HR and employee policies and procedures and generally describes the employees benefits provided.
Employee handbook
Planned and orderly attempt to link the shared interests of the employee and the organization for their mutual benefit.
Employee involvement (EI)
Programs to improve communication between employees and management and empower employees in some workplace decisions.
Employee participation programs (EPPs)
Common-law principle stating that employers have the right to hire, fire, demote, and promote whomever they choose for any reason unless there is a law or contract to the contrary and that employees have the right to quit a job at any time.
Employment-at-will (EAW)
List the employer has to provide the union with the names and addresses of certain employees within seven days after the direction of or consent to an election.
Excelsior List
Involves verbal promises made between employer and employee related to employment.
Express oral contract
Situation in which unions try to require the employment of more workers than is necessary.
Featherbedding
Administers the provisions of the various executive orders that fall under the Civil Service Reform Act of 1978.
Federal Labor Relations Authority (FLRA)
Offers assistance in contract settlement and maintains a list or arbitrators to help interpret contract language and resolve disputes.
Federal Mediation and Conciliation Service (FMCS)
Work schedule that requires employees to work an established number of hours per week but allows starting and ending times to vary.
Flextime
Small group (normally six to twelve) invited to actively participate in a structures discussion with a facilitator.
Focus group
Intentional deception relied upon and resulting in injury to another person.
Fraudulent misrepresentation
NLRB order to an employer to bargain with the union as a remedy for serious ULP charges against the employer.
Gissel order
Generally means that parties in a negotiation enter into discussion with fair and open minds and a sincere desire to arrive at an agreement.
Good-faith bargaining
Provides an orderly way to resolve differences of opinion in regard to a union contract.
Grievance procedure
Agreement that union members are not required to handle goods made by nonunion labor or a struck plant; generally illegal.
Hot cargo clauses
Those collective bargaining items that are unlawful by statue; also known as external subjects.
Illegal subjects
Exists when an agreement is implied from circumstances even though there is no express agreement between employer and employee.
Implied contracts
As related to international labor relations, where employees have legally mandated rights to participate in management decisions.
Industrial democracy
Type of picketing done to advise the public that an employer is nonunion.
Informal picketing
Enables an employer to prevent an employee from taking employment with a competitor when the current employer’s trade secrets might “inevitably” be disclosed.
Inevitable disclosure
Court order that restricts, prevents, or requires certain activities.
Injunction
Takes place when there is more than one issue to be resolved; focuses on creative solutions to conflicts that reconcile parties’ interests and results in mutual benefit.
Integrative bargaining
Form of negotiating where parties look for common ground and attempt to satisfy mutual interests through the bargaining process.
Interest-based bargaining (IBB)
Employee application and/or prior request system used to help employees change jobs.
Job bidding
Broadening the scope of a job by expanding the number of different tasks to be performed.
Job enlargement
Increases the depth of a job by adding responsibility for planning, organizing, controlling, and evaluation.
Job enrichment
Situation in which currently available positions are posted so interested and qualified employees may apply.
Job posting
Breaks the monotony of routine jobs by shifting people between comparable but different jobs.
Job rotation
Results when two part-time employees share one full-time job.
Job sharing
Any organization in which employees participate and which exists for the purpose of dealing with employers on work-related issues.
Labor organization
Act that provides balance of power between union and management by designating certain union activities as unfair labor practices; also known as Taft-Hartley Act
Labor-Management relations Act (LMRA) of 1947
Act that protects the rights of union member from corrupt or discriminatory labor unions; also known as Landrum-Griffin Act.
Labor-Management Reporting and Disclosure Act (LMRDA)
Act that protects the rights of union member from corrupt or discriminatory labor unions; also known as Labor-Management Reporting and Disclosure Act (LMRDA).
Landrum-Griffin Act
Process of ensuring that any information related to pending (or reasonably anticipated) litigation is identified and preserved without regard to usual document destruction policies or schedules.
Litigation hold
Occurs when management shuts down operations to prevent union employees from working.
Lockout
Contract clause that states that an employee may or may not choose to join the union but once the employee joins, he/she must maintain membership for the duration of the contract.
Maintenance of membership
Collective bargaining items required by law and the NLRB.
Mandatory subjects
Method of non-binding dispute resolving involving a third party who helps disputing parties reach a mutual agreeable decision; also known as conciliation
Mediation
Act that extended the policies of the Railway Labor Act to all interstate commerce organizations.
National Industrial Recovery Act
Act that protects the rights of employees to organize unhampered by management; also known as Wagner Act.
National Labor Relations Act (NLRA) of 1935
Agency that has authority to conduct union representation elections and investigate unfair labor practices.
National Labor Relations Board (NLRB)
Hiring of an employee who the employer knew or should have known, based on a reasonable pre-hire investigation of the employee’s background, posed a risk to others in the workplace.
Negligent hiring
Retention of employees who engage in misconduct both during and after working hours.
Negligent retention
Agreement between a union and an employer under which the employer agrees to remain neutral to (i.e.; not oppose) a union’s attempt to organize its workforce.
Neutrality / cooperation agreement
NLRB cases involving ULP’s during a union’s organizing drive that “chill” and organizing effort.
“Nip in the bud” cases
Contract stipulation in which the company agrees not to lock out workers during a labor dispute for the life of the contract.
No-lockout clause
Act that guarantees workers’ right to organize and restricts issuance of court injunctions against peaceful organized labor activities such as strikes, picketing, and boycotts.
Norris-LaGuardia Act of 1932
Contract stipulation in which union agrees not to strike during the duration of the contract.
No-strike clause
Workplace in which union membership (payments of dues) is not required for employee to continue employment beyond 30 days (seven days in the construction industry)
Open shop
Presentation of data to stimulate discussion of problem areas, generate potential solutions, and stimulate motivation for change.
Organizational feedback
Type of picketing done to induce employees to accept a union as their representative.
Organizational picketing
Takes place when unions negotiate provisions covering wages and other benefits similar to those already provided in other agreements existing within the industry or region, also known as parallel bargaining.
Pattern bargaining
Collective bargaining items that may be bargained but are not obligatory; also called voluntary or non-mandatory subjects.
Permissive subjects
Offers employees the opportunity to gradually reduce the number of hours they work before they are fully retired.
Phased retirement
Broad statement that reflects an organization’s philosophy, objectives, or standards concerning a particular set of management or employee activities.
Policy
Type of contract negotiation based on four premises:
- ) separate the people from the problem
- ) focus on interests, not positions
- ) invent options for mutual gain
- ) insist on objective criteria.
Principled negotiation
Type of contract negotiation in which people lock themselves into positions and find it difficult to move away, parties to be resolved, and emphasis is placed on winning the position.
Positional negotiation
Detailed, step-by-step description of the customary method of handling an activity.
Procedure
System of increasingly sever penalties for employee discipline.
Progressive discipline
Group of people who come together for a specific project.
Project team
Exception to doctrine of employment-at-will, holding that employees cannot be fired for fulfilling legal obligations or for exercising legal rights.
Public policy exception
Act that originally provided railroad employees the right to organize and bargain collectively; now covers both railroad and airline employees.
Railway Labor Act of 1926
When an employer recognizes a union as being entitled to conduct collective bargaining on behalf of workers in a particular bargaining unit.
Recognition
Picketing done to obtain an employer’s recognition of a union as bargaining representative.
Recognitional picketing
Device used by owner or contractor of a multi-employer work site to isolate pickets of one of these employers with whom a union has a primary dispute.
Reserved gate
Grants management full authority and discretion over the items that are or could be covered unless the contract limits management’s rights in a particular area.
Reserved rights doctrine
Refers to statues that prohibit unions from making union membership a condition of employment.
Right to work
Provision in a law or regulation that provides some measure of protection from liability if certain conditions are met.
Safe harbor
Process of using paid union organizers to infiltrate an organization and organize its workers.
Salting
When a union attempts to influence an employer by exerting pressure on another employer.
Secondary boycotts
Rights under NLRA that allow employees to engage or not engage in union activity.
Section 7 rights
When employer and union decide to assign specific bargaining issues to committees; proposals are then returned to entire group for decision.
Segmented bargaining
Group of people that works in a self-managing way typically assume complete autonomy.
Self-directed team
Act that curbed concentrations of power that interfered with trade and reduced economic competition; directed at large monopolistic employers but applied by courts to labor unions.
Sherman Anti-Trust Act of 1890
Extent to which a job requires a variety of different activities for successful completion.
Skill variety
The more skills involved, the more meaningful the work.
Practice in union-free organizations of encouraging managers to spend time with each employee two levels below them on an annual basis.
Skip-level interviews
Refusal by employees to work.
Strike
Strike by employees of a bargaining unit who refuse to cross picket lines made up of employees who are not members of their bargaining unit.
Sympathy strike
ct that provides balance of power between union and management by designing certain union activities as unfair labor practices; also known as Labor-Management Relations Act (LMRA)
Taft-Hartley Act of 1947
Temporary allocation of personnel and resources for the accomplishment of a specific objective.
Task force
Extent to which a job requires a “whole” identifiable unit of work - doing the job from start to finish with a visible outcome.
Task identity
ex. it is more meaningful to sew a whole pair of pants than to simply attach the pockets.
Extent to which a job has a substantial impact on other people.
Task significance
Job is more important if it’s more important to others. For instance, a firefighter may get more satisfaction from actually battling fires than from helping to train other firefighters.
Set of two or more people who are equally accountable for accomplishment of a purpose and specific performance goals.
Team
Working via computing and telecommunications equipment.
Telecommuting
Acronym used by many labor management attorneys and consultants that covers most of the unfair labor practice pitfalls a supervisor can run into.
TIPS - don’t Threaten, Interrogate, Promise, or Spy
Deals with employment contracts that contain covenants not to compete after termination of employment relationship and with the use of secret, confidential, or proprietary information that the employee obtained while working for the former employer.
Unfair competition
Violation of rights under labor-relations statues.
Unfair labor practice (ULP)
Formal labor organization that has the right to represent and bargain for a group of employees.
Union
Provisions in a collective bargaining agreement designed to protect the institutional authority or survival of the union (e.g., making union membership or payments of dues compulsory for all or some of the employees in a bargaining unit. )
Union security clause
Clause that states that when workers take jobs in a specific bargaining unit, they must join the union and pay union dues within a certain period of time.
Union shop
Act that protects the rights of employees to organize unhampered by management; also known as National Labor Relations Act (NLRA).
Wagner Act of 1935
Union employees’ right to have a union representative or coworker present during an investigatory interview.
Weingarten rights
Work stoppages involving the primary employer-employee relationship that are neither sanctioned nor stimulated by the union and that violate a no-strike clause in the contract.
Wildcat strikes
Reflects management decisions regarding specific actions to be taken or avoided in a given situation.
Work rule
Group of employees responsible for a given end product.
Work team
Contracts that force employee to agree not to join a union or participate in any union activity as a condition of employment.
Yellow-dog contracts
Contract stipulation in which both parties waive the right to demand bargaining on any matter not dealt with in the contract, whether or not it was contemplated when the contract was negotiated or signed.
Zipper clause
Purpose of N.L.R.A (Wagner Act)
Protect and encourage growth of union movement (collective bargaining)
Key sections in the N.L.R.A (Wagner’s Act)
- Section 7: Employee Rights
- Section 8: Employer Unfair Labor Practices (ULPs)
- Section 9: Election Procedures
- Section 10: Wright to Work State Laws
Labor Relations Milestones
- 1869 Knights of Labor organized
- 1886 American Federation of Labor(AFL) founded
- 1890 Sherman Anti-Trust Act
- 1914 Clayton Act
- 1926 Railway Labor Act
- 1932 Norris LaGuardia Act
- 1933 National Industrial Recover Act
- 1935 Wagner Act (NLRA) & Social Security Act
- 1947 Taft-Hartley Act
- 1948 SHRM
- 1950s Union membership peaks
- 1959 Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act)
An act that provides some wage protection
Fair Labor Standard Act (FLSA) of 1938 (amended frequently)
An act that protects all applicants and employees from unlawful discrimination on account of race, color, religion, sex, or national origin.
The Civil Rights Act of 1964
This act extends protection against age-based discrimination.
The Age Discrimination in Employment Act (ADEA) of 1967
This act regulates workers safety issues.
Occupational Safety and Health Act of 1970
This act regulates retirement and certain welfare benefits.
Employee Retirement Income Security Act of 1974.
This act extended employment rights to federal workers.
Civil Service Reform Act of 1978
This act focuses on the employment rights of the disabled.
Americans with Disabilities Act (ADA0 of 1990
and
ADA Amendments Act (ADAAC) of 2009
This act defined employees’ rights to take unpaid leave.
Family and Medical Leave Act of 1993
This act protects various veterans’ reemployment rights.
Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994.
This act addressed portability of health benefits.
Health Insurance Portability and Accountability Act (HIPAA) of 1996
This act prohibits discrimination by health insurers and employers based on individuals’ genetic information.
The Genetic Information Nondiscrimination Act (GINA) of 2009
A Supreme Court case decision that that established separate public schools for black and white students illegal.
Brown v. Board of Education (1954), was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896, which allowed state-sponsored segregation.
This act abolished wage disparity based on sex
Equal Pay Act of 1963
This act established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors.
Executive order 11246 of 1965.
This act prohibited sex discrimination on the basis of pregnancy.
Pregnancy Discrimination Act of 1978
Established standards for employers for the use of selection procedures and to address adverse impact, validation, and record-keeping requirements.
Uniform Guidelines on Employee Selection Procedures, 1978
Established criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment.
Guidelines on Sexual Harassment, 1980
Act that reformed US immigration Law
Immigration Reform and Control Act (1986) of 1986
This act requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.[1]
Drug-Free Workplace Act of 1988
This act prevents employers from using polygraph (lie detector) tests, either for pre-employment screening or during the course of employment, with certain exemptions.
Employee Polygraph Protection Act (EPPA) of 1988
This actprotects employees, their families, and communities by requiring most employers with 100 or more employees to provide 60 calendar-day advance notification of plant closings and mass layoffs of employees.
Worker Adjustment and Retraining Notification Act (WARN Act) of 1988
This act amended Employee Retirement Income Security Act of 1974. I
Retirement Equity Act of 1984
The Act gave more benefits to surviving spouses.
This act mandates an insurance program giving some employees the ability to continue health insurance coverage after leaving employment.
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
Why employees join union.
- Lack of fairness or inconsistency in applying policies.
- Failure to recognize problems
- Lack of control /input on work issues
- Poor communication by management
- Poor performance at the supervisory level
- Perception of gross economic inequities
Employer trend influences
- Growth of foreign competition
- Emergence of a global economy
- Labor demographics and supply
- Manufacturing jobs decline
- Increasing cost of government compliance and regulation
- Explosive growth in employment litigation
Recent Union Trends
- AFL-CIO
- Change to Win
- More people join unions instead of going to college
- Competitive global marketplace
Trends in union organizing tactics.
- Aggressive organizing strategies
- New forms of union membership
- Recruiting of nontraditional members
- Expanded organizing in micro-units
Types of aggressive union organizing strategies.
- Mass mailing and telephone polling
- Media, internet and social media blitzes
- targeting employers with “corporate campaigns, neutrality agreements, and card-check pledges”
- Targeting specific locations and specific social groups
New forms of union memberships.
- “pre-union” groups
- associate membership
This type of union membership is set up in hopes to obtain initial employee commitment, with the hope that it will lead to the formation of a full-fledged campaign.
“pre-union group” membership
This type of union membership offers an employee only partial dues payments; often used with professional groups and public sector employees.
Associate membership.
Nontraditional union members.
- formerly nontraditional industries
- nontraditional work groups (white-collar, part-time, immigrants)
- Specific locations
What does it mean to expand union organizing tactics in micro-units?
- organizing across multiple locations
- organizing in just one job classification
This act was a countermeasure to the EFCA and it aimed to require secret-ballot elections to determine union representation in a workplace.
Secret Ballot Protection Act, 2011
This Act, would have made it easier for unions to achieve certification for a bargaining unit and obtain a collective bargaining agreement.
Employee Free Choice Act (EFCA), introduced in 2009. Not passed.
Key sections of N.L.R.A. (Wagner Act)
- Section 7: Employee Rights
- Section 8: Employer Unfair Labor Practices
- Section 9: Election Procedures
- Section 14: Right to Work State
Section 7 of the NLRA states that employees shall have the right to:
- self-organize
- form, join, or assist labor organizations
- bargain collectively through representative of their own choosing
- engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection
- refrain from any or all such activities
Section 8 of National Labor Relations Act of 1935 prohibits employers and unions from:
- interfering with
- restraining
- or coercing employees in the exercise of their Section 7 rights
Other provisions under NLRA.
- Objections to harassment
- Refusing to work under dangerous conditions
- Protected concerted activity, such as a picket line, refusing voluntary on-call work, filing grievances, protesting discrimination
- Filing for unemployment as a group
- Petitioning the employer for resolution of some issue
- The right to discuss with others the terms and conditions of their employment.
This law requires federal contractors, unionized or non-unionized, to post notices about their rights under NLRA, and to include provisions in their contracts that require their subcontractors to post the same employee notice
Executive Order 13496 of 2010
National Association of Manufacturers v. NLRB, 2013
In this case the District Court of Columbia Circuit struck down an NLRB rule that required all employers (not just federal contractors) covered by NLRA to post a similar to Executive Order 13496 notice.
Equal employment opportunities laws are examples of statutory laws. They derive from the following legislative acts:
- Title VII of the Civil Rights Act of 1964
- Fair Labor Standard Act of 1938
- Equal Pay Act (EPA) of 1963
- Age Discrimination in Employment Act (ADEA) of 1967
- Pregnancy Discrimination Act of 1978
- Titles I, II, and III of the Americans with Disabilities Act (ADA) of 1990
- ADA Amendments Act (ADAAA) of 2008
- Section 501 and 505 of the Rehabilitation Act of 1973
- Civil Rights Act of 1991
- Family and Medical Leave Act (FMLA) of 1993, 2008 amendments, 2009 regulations and 2012 FMLA final rules
- National Defense Authorization Act of 2010 (FMLA amendments)
- Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994
- Genetic Information Nondiscrimination Act (GINA) of 2008
- Lily Ledbetter Fair Pay Act of 2009
Criteria generally protected from discrimination under Federal laws:
- age
- sex
- race
- religion
- color
- disability
- military service
- national origin
Most important doctrine of common law.
Employment-at-will (EAW)
Exceptions to Employment-at-will
- Public policy (legal obligations)
- Express oral contract
- Implied contract
- Implied covenant
- Just cause
This exception to employment-at-will states that employees cannot be fired for fulfilling legal obligations or exercising their legal rights.
public policy exception
Examples of public policy exemption to employment-at-will.
- serving on jury duty
- filing for workers’ compensation
- refusing to commit perjury
- whistleblowing
- filing a complaint against the employer under Title VII
This exception to employment-at-will exists when an agreement is implied from circumstances even though there has been no express agreement between the employer and the employee.
Implied contract exception
This exception to employment-at-will doctrine involves a claim that a lack of good faith and fair dealing by the employer haas occurred.
Implied covenant of good faith and fair dealing
Example of implied covenant of good faith and fair dealing in the employment-at-will doctrine.
Firing an employee shortly after the employee becomes eligible for a retirement plan may indicate bad faith and may also be unlawful under federal pension laws.
The implied covenant of good faith and fair dealing exception to the EAW doctrine is rapidly changing. Few courts have been willing to recognize this doctrine because it implies that employees will ot be terminated without good cause, and this might eliminate the long-standing presumption of employment-at-will.
Key note on implied covenant of good faith and fair dealing.
How can employer avoid employer avoid employment-at-will lawsuits.
- avoid representing the job as “permanent”
- characterize the employer’s obligation with sufficient flexibility to avoid claims of an implied contract or breach of faith.
- Any detail about the future should be stated as a goal, not as a promise
- state in job application, offer of employer letters (if used), and employee handbooks that employment is at will
- state in the handbook that policies can be changed at any time by the employer
- Require employees to sign an acknowledgment that they have received the employee handbook, that the handbook is not a contract, and that employment is at will.
Types of Common-law torts claims that may include or at time violate individual employee rights.
- Employment-at-will
- Negligent hiring / negligent retention
- defamation
- fraudulent misrepresentation
- duty of loyalty (unfair competition)
- Invasion of privacy
A company that hires an employee who has a history of physical abuse of customers may e found liable for negligent hiring if that employee injures a customer.
This is an example of negligent retention.
To state a claim of negligence in hiring or retention, the following must ordinarily be shown.
- An employer-employee relationship or retention must exists
- The employee must be incompetent or inappropriate for the position
- The employer either knew or should have known of the incompetence or inappropriateness
- The employee’s act or omission must have caused the injuries
- With appropriate investigation, the employer could have discovered the relevant information and prevented the incident from occurring
A manager is jealous of f fellow employee who was recently promoted He spreads false rumors that the employee traded sexual favors for the promotion.
This is an example of defamation.
To prove defamation, a person must show evidence that
- A false and malicious statement was made to another person. (in the legal sense, “false” refers to making a statement known to be false or in some instance acting with reckless disregard to the statement’s truth or falsity.)
- Harm to the person’s reputation was caused by the statement.
- The statement was made with no legitimate associated business reason.
An employer makes a promise of job security to an applicant knowing that the employee’s job will be only temporary. Because of this promise, the applicant turns down job offers and takes the position, only to find out that there is no job security.
This is an example of fraudulent misrepresentation.
Four types of invasion-of-privacy claims exist under common law.
- Unreasonable intrusion upon the seclusion of another
- Appropriation of another’s name or likeness
- Unreasonable publicity given to another’s private life
- Publication that unreasonably places another in a false light before the public.
In order to deter theft and drug dealing, a company installs video cameras in an employee locker or dressing room.
This is an example of invasion-of-privacy.
An agreement between two or more persons to do, or refrain from doing, a particular thing in exchange for something of value.
Contract
What defines the promises of each party in a contract.
Contract can be written, using formal or informal terms, or they can be entirely oral. The terms of contract - the who, what, when, where, and how of the agreement - define the promises of each party.
If an employer tells a candidate in a interview that he or she will be promoted within one year and the candidate accepts the job based on that promise, this is an example of what?
Express oral contract.
If the existence of an express oral contract is proved by the employee, then the employer cannot claim an employment-at-will relationship.
This type of contract contain covenants not to compete that survive the termination of the employment relationship.
Unfair competition and noncompete agreement.
For a noncompete agreement to be enforceable, the employer must have some type of agreement with the employee that gives the employee something of value.
Under this doctrine, an employer could prevent an enmployee from taking a new position because the employee had knowledge that would inevitably be disclosed.
Inevitable disclosure
This Common-Law contract law requires that employees not engage in conduct adverse to employer’s best interests; competing with employer while still employed by it, soliciting coworkers away from the employer, diverting business away from the employer while still employed, or failing to disclose business conflicts of interest.
Employee’s duty of loyalty and confidentiality
HR involvement in the litigation process.
- Work with organization’s attorneys
- Attend depositions
- Attend meetings with agencies and plaintiffs
- Gather information
- Testify in hearings or at court
The litigation process steps
- Notification
- Answering complaint
- Scheduling conferences
- Discovery process
- Motion to dismiss
- Summary judgement
- Pretrial and trial
Two ways of notification in the litigation process.
- Sheriff or another process server delivers a copy of complaint.
- Plaintiff’s attorney or others mail a copy of the complaint along with a “waiver of service of process” form.
What occurs in the litigation process when the complaint is mailed?
If the complaint is mailed, HR or the company attorney needs to sign and return “waiver of service process”. By doing so, it increases the time permitted for a response (to 60 days from 20) it also avoids the complaint being personally served ad the company from incurring these costs.
HR role in the litigation hold process.
HR works with an attorney to develop and send out to all involved individuals a litigation hold letter that gives precise instructions for what material must be preserved (previous and new), how it should be preserved, and where it should be stored.
Things to remember when answering a complaint
- response must be filed within 20 or 60 days
- answer “admits or denies” the complaint
- raises an “affirmative defense” for defended
- “motion to dismiss” may also be filed in lieu of or in addition to an answer.
In this phase of answering a complaint, attorneys for both sides meet with the assigned judge and establish dates for getting the case to trial as well as the actual trial date.
Scheduling Conferences.
Most state courts do not hold scheduling conferences.
In this phase of answering a complaint, each party learns the facts about the other side’s case.
Discovery Process
this phase is generally quite expensive and time-consuming.
HR’s role in the Discovery Process
HR is typically responsible for gathering all relevant documents for the company legal counsel. Additionally, HR may be required (as company representative) to sign off on the interrogatory answers, attesting to their accuracy and truthfulness.
In the discovery process when the oral depositions of potential witnesses are scheduled?
After the written part of the discovery process is completed.
In this phase of answering a complaint, the defendant may request the court to stop its consideration of the case.
Motion to dismiss.
When there are to material facts in dispute, this requests the court to dismiss the case without a trial.
Summary judgment.
A sworn and written testimony supporting a motion.
Affidavit
In the employment lawsuit, how is the HR involved during the notification process?
- Notify counsel promptly and respond as directed
- Issue litigation hold letter
- Ensure that employees refrain from retaliation against the complainant
In the employment lawsuit, how is the HR involved during the answering complaint process?
- Supply organization’s legal counsel with plaintiff’s personnel files and any other related documents.
- Assist legal counsel in any investigation as requested
In the employment lawsuit, how is the HR involved during the scheduling conferences process?
- Advise attorney of time required for conducting internal investigation.
In the employment lawsuit, how is the HR involved during the discovery process process?
- Help organization’s legal counsel gather information in timely manner to prepare initial disclosures
- May sign off on interrogatory answers
- May need to provide deposition
- May attend plaintiff’s deposition
In the employment lawsuit, how is the HR involved during the motion to dismiss process?
Usually no HR involvement
In the employment lawsuit, how is the HR involved during the summary judgment process?
- May be requested to gather additional facts
- May be asked to sign affidavit
In the employment lawsuit, how is the HR involved during the pretrial and trial process?
- Support company legal counsel with final trial preparations and trial litigation
- Provide additional documentation as amy be required
- Help with scheduling of witnesses
Steps in the Employment Lawsuit process
- Notification
- Answering complaints
- Scheduling conferences
- Discovery process
- Motion to dismiss
- Summary judgment
- Pretrial and trial
Which of the following statement about common law is true:
a. ) It is a wrongful act, damage, or injury done willfully
b. ) It is enacted by legislation
c. ) Its basic principles are found in every society
d. ) it is based on a history of court decisions and customs
d.) it is based on a history of court decisions and customs
After three months on the job, an employee is fired without cause. This situation is an example of:
a. ) the disregard of reference checking by the employer
b. ) defamation
c. ) the violation of an implied contract
d. ) the common-law concept of employment at will
d.) the common-law concept of employment at will
A ten-year employee with a company was assured by the supervisor that the employee would always have a job. Three months later, the employee was called to jury duty and assigned to a trial that lasted six months. The employer hired somone to take over the job and was then unable to find the employee a suitable position after the trial. This situation may violate all of the following exceptions to the doctrine of employment-at-will EXCEP:
a. ) express oral contract
b. ) public policy
c. ) implied covenant of good faith and fair dealing
d. ) negligence
d.) negligence
The best way to avoid litigation over negligent hiring is to:
a. ) administer personality tests
b. ) check references
c. ) include a disclaimer in the employment contract
d. ) require a drug test
b.) check references
The common-law concept of defamation can be defined as:
injuring someone’s reputation in the community through slander or libel
When deciding between two jobs, an individual is told that the company will reimburse for graduate school, however after six months on the job his request for tuition reimbursement is denied. this is:
a. ) invasion of privacy
b. ) negligence
c. ) fraudulent misrepresentation
d. ) implied covenant
c.) fraudulent misrepresentation
Misrepresentation claims can be based on misstatement of material (i.e., significant) facts about the terms of the job offer, including the type of position, the salary, the job requirements, and other matters directly relating to the offer.
Which of the following statements about a noncompete agreement is true?
a. ) It prohibits employee from finding employment in the same field
b. ) It is valid only in the employee’s state or residence
c. ) It must be presented at the time of hire
d. ) It must contain a clause limiting the length of time the agreement will be in effect
d.) It must contain a clause limiting the length of time the agreement will be in effect
Which of the following actions could be perceived as retaliation for an employee’s complaint of discrimination?
a. ) A supervisor calls the employee into a private office and questions the employee closely about the complaint.
b. ) An attorney questions coworkers about the employee’s statements
c. ) Overtime for the entire department, including the employee, is reduced
d. ) The employee’s personnel records are provided to the organization’s attorney.
a.) A supervisor calls the employee into a private office and questions the employee closely about the complaint.
this may be viewed as coercion
HR role in Maintaining a Non-Union workplace
- clear position regarding unionization
- fair and consistent treatment of employees
- access to career opportunities
- balanced promotion decisions
- communication program and feedback mechanisms
- problem solving procedures
- counseling
- comparable compensation and benefits
- performance appraisal
- rewards and recognition
- management / supervisor training
Employee handbook that clearly articulates company position regarding unionization should outline the following items:
- the expense for employees of union and initiation fees
- the economic losses and uncertainties that accompany possible strikes
- policies and processes that are already in place to provide the kind of treatment unions promise to obtain in exchange for dues
- freedom to reward high-performing employees and panelize low-performers who clearly create more work for their fellow employees
- greater flexibility to adapt to market and technology changes. Employees can acquire new responsibilities without negotiating with the union.
- What organizing cards are and what the employee signifies by signing one
- How certification work
Knowledge
When possible, during a promotion decision making process, a mixed system that blends seniority and ability of individual is generally preferable to a non-mixed system.
Difference between job posting and job bidding
Under a job posting system, currently available positions are “posted” so interested and qualified employees may apply.
Job bidding allows individuals to express interest in future opportunities and openings.
Examples of feedback/communication mechanisms during strategizing for maintaining a union-free organization, may include:
- Attitude (climate) surveys
- Human resources / labor relations reviews
- Skip-level interviews
- Open door/ person-to-person meetings
- Department / unit communication meetings
- Employee participation programs (EPPs)
- Electronic communications
- Problem solving procedures
- Counseling
- Compensation and benefits programs and practices
- Performance appraisals
- Rewards and recognition
- Management / supervisor training
This method reduces the perception of “we/they” in the organization and facilities upward communication where it may not routinely happen. It also encourages management to resolve issues and employee problems promptly.
Skip-level interviews as a part of communication programs and feedback mechanisms
Key knowledge
Human resources / labor relations reviews as a part of communication programs and feedback mechanisms will be disclosed if requested during discovery phase in litigation process unless prepared under the direction of counsel for purposes of advising the employer about legal compliance.
This type of surveys ask employees to provide opinions on fair treatment, recognition and appreciation, quality of supervision, working conditions, job demands, job security, adequacy of communication, and satisfaction with compensation, benefits, and other conditions of employment.
Attitude (climate) surveys.
What is the greatest disadvantage of open-door / person-to-person meetings.
When soliciting feedback from employees without responding to it signals to employees a lack of genuine interest in employee concerns.
This type of feedback is often used as means of regular upward communication. Employees within a particular unit are asked to meet with the manager to discuss current developments and seek areas for improvement.
Department / unit communication meetings.
These have a common purpose of improving communication between employers and employees and empowering employees in some workplace decisions. They can create a loyal and committed workforce and can lead to substantially increased productivity and quality.
Employee participation programs (EPPs)
Since Section 8 of NLRA prohibits employers from dominating or interfering with a “labor organization” or with providing it financial or other forms of support, each Employee Participation Program (EPP) must be examined on its own, but there are few general rules.
- Members of EPPs must not represent other employees
- Programs must not be “bilateral” in nature or purpose (committee must not be working to generate proposals to management)
- Committee deliberations must avoid “traditional areas of bargaining”, such as compensation, hours, benefits, and reward systems.
- If there is a union representing the employees, management must at the very least “meet and confer” with the union over the design and implementation of the committees.
Guidelines on Effective Rewards / Recognition Programs
- Gather employee input
- Ensure that the rewards / recognition are appropriate to the value of employee contribution
- Develop clear criteria that are significant and achievable and communicate them to the entire workforce
- Train supervisors and managers how to administer the programs effectively, fairly, and consistently.
Labor - Management Cooperative Strategies
- Greater acceptance of partnerships
- Willingness to share powers
- Open and candid sharing of information
- Joint decision making on issues of common concern
- “win-win” bargaining
- Shared responsibility and accountability for results
Fundamentals of Labor- Management Cooperation
- understanding and cooperation about the mutual concern and trust
- recognize the challenge and eliminate “us-them” mentality
- have internal champions
- encourage open communication
- establish common ground rules
- set realistic expectations
- do not create new bureaucracy when eliminating an old one
- learn about other party’s position
- regularly assess progress
All of these factors support positive employee relations in nonunion organizations EXCEPT
a. ) skip-level interviews
b. ) strong employee commitment to organizational goals
c. ) new and improved company newsletter
d. ) use of sanctions to motivate desired behavior
d.) use of sanctions to motivate desired behavior
An entry-level employee express interest in applying for a possible Grade II position. This process is known as
a. ) job bidding
b. ) job posting
c. ) open-door communication
d. ) balanced promotion
a.) job bidding
Job bidding allows individuals to express interest in future opportunities and openings
Which of the following actions might be problematic and construed under the NLRA as dominating a labor organization?
a. ) Employer tells members of the committee that they are not representing other employees
b. ) The employer does not inform the committee members of their right to form a labor organization before the committee begins its work
c. ) The employer promises to work with the committee, to respond to committee proposals, and to develop mutually agreed solutions
d. ) The employer tells the committee members to avoid issues related to wages and benefits
c.) The employer promises to work with the committee, to respond to committee proposals, and to develop mutually agreed solutions
Labor-management cooperation is BEST supported by which action:
a. ) Preserving the traditional “us-them” environment
b. ) Promoting high expectations for success
c. ) Allowing committee members to defend their positions
d. ) Setting common goals on a united front
d.) Setting common goals on a united front
To recognize employee contribution, senior management decides to give an employee a $100 bonus for employee’s $500,000 cost saving idea. Why may this reward actin prove problematic?
The reward may not be aligned with the value of the suggestion to the company.
Participative management or empowerment, is also known as…
Employee involvement (EI)
Which of the following describes task identity?
a. ) The amount of clear information received about how well or how poorly a job has been performed
b. ) Extent to which the job requires a whole, identifiable unit of work
c. ) Extent of individual freedom and discretion in the work and its scheduling
d. ) Extent to which the job has a substantial impact on other people
b.) Extent to which the job requires a whole, identifiable unit of work
Which of the following job design practices broadens the scope of a job by expanding the number of different tasks to be performed?
a. ) Job enrichment
b. ) Division of labor
c. ) Job rotation
d. ) Job enlargement
d.) job enlargement
Job enrichment increases the depth of a job by adding responsibilities (also known as vertical integration)
Division of labor occurs when jobs are reduced to their smallest components so they can be completed quickly
Job rotation is a variation of job enlargement, breaks the monotony of routine jobs by shifting people between comparable but different jobs.
A disadvantage of flextime is that
a. ) utility cost may be higher because of longer operating hours
b. ) it provides more flexibility in handling uneven workloads
c. ) the total number of employees to compensate increases
d. ) one-day absences are reduced
a.) utility cost may be higher because of longer operating hours
Other disadvantages of flextime:
- Communication problems may increase if employees are unavailable
- Maintenance of attendance records
- Supervision for 12-15 hour days may be difficult
- possible overtime issues
Which of the following is an example of an alternate work schedule?
a. ) Job sharing
b. ) self-directed work teams
c. ) Job rotation
d. ) Task forces
a.) job sharing Other examples of alternate work schedules: - Flextime - Compressed workweeks - Regular part-time - phased retirement - Telecommuting
The significance of the Crown Cork NLRB decision is that it
a. ) discourages the use of project teams in unionized workplaces
b. ) strictly defines the use of incentives for employee creativity
c. ) allows some use of employee involvement committees
d. ) places strict guidelines on job definition
c.) allows some use of employee involvement committees
Which of the following employer committees would follow under a safe-harbor provision for employee participation programs?
a. ) Employees within a work area select respected employees to present employees’ ideas on increasing unit efficiency
b. ) A committee is organized to provide comments to management on the adequacy of the workplace safety procedures
c. ) Committee members poll fellow employees so that they can prioritize issue on workplace satisfaction in a report to management
d. ) A committee formed to improve attitudes meets with management to review its findings and develop final actions.
b.) A committee is organized to provide comments to management on the adequacy of the workplace safety procedures
When a committee may make proposals related to operational issues, such as safety and quality, but not to the terms or conditions of employment; this is called operational jurisdiction and is one of four “safe harbors” for the employer according to NLRB.
