what is the employment-at-will doctrine? when and why are exceptions to this doctrine made? what is...

• What is the employment-at-will doctrine? What is the employment-at-will doctrine? When and why are exceptions to this When and why are exceptions to this doctrine made?doctrine made?• What federal statute governs working What federal statute governs working

hours and wages? hours and wages? • Under the Family and Medical Leave Act Under the Family and Medical Leave Act

of 1993, in what circumstances may an of 1993, in what circumstances may an employee take family or medical leave?employee take family or medical leave?

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• What are the two most important What are the two most important federal statutes governing immigration federal statutes governing immigration and employment today?and employment today?• What federal statute gave employees What federal statute gave employees

the right to organize unions and engage the right to organize unions and engage in collective bargaining?in collective bargaining?


• Historically, employment law was Historically, employment law was governed by the common law doctrine governed by the common law doctrine of “employment at will” where either of “employment at will” where either employer or employee could terminate employer or employee could terminate the relationship at any time, for any the relationship at any time, for any reason.reason.

• Today employment law is heavily Today employment law is heavily regulated by state and federal statutes. regulated by state and federal statutes.


• Employment relationships have been Employment relationships have been by common law doctrine of by common law doctrine of “employment at will.”“employment at will.”–Either party may terminate at any time

for any reason, unless contract provides to the contrary.


• Exceptions Exceptions to the Employment At Will to the Employment At Will Doctrine: Doctrine: –Contract Theory: is there an implied

employment agreement? What about oral promises from employer?• CASE 29.1 Ellis v. BlueSky Charter School Ellis v. BlueSky Charter School

(2010). Why did Ellis believe his employment was based on an employment contract, and not at-will?


• Exceptions Exceptions to the Employment At to the Employment At Will Doctrine (cont’d): Will Doctrine (cont’d): –Tort Theory: termination may give rise

to wrongful discharge claims. –Public Policy:• Requirements: Must be clearly stated in

statutes governing that jurisdiction.•Whistleblowing and Public Policy.


• Wrongful DischargeWrongful Discharge. . –Even if employer’s actions do not

violate any express employment contract or statute, liability may still attach based on tort theory or agency.


• IntroductionIntroduction..–Davis-Bacon Act -- the prevailing wage

act.–Walsh-Healey Act -- the beginning of

minimum wages.–Fair Labor Standards Act (FLSA) -- an

extension of wage and hour regulation to workers in interstate commerce.


• Child LaborChild Labor..–FLSA prohibits oppressive child labor

practices.• Minimum Wages.Minimum Wages.–In 2010, FLSA minimum wage is

$7.25/hour in covered industries. Employers in food or lodging industries can deduct reasonable cost of those services from wages.


• Overtime Provisions and Exemptions.Overtime Provisions and Exemptions.–Rule: Under FLSA, employees who

work over 40 hours/week are entitled to 1.5 times her hourly wage for those hours worked.–Exemptions: certain employees, e.g.,

executive or professional, are exempt from FLSA overtime requirements.


• Overtime Provisions and Exemptions.Overtime Provisions and Exemptions.–Exemptions (cont’d).• Exemptions from FLSA overtime do not

apply to manual laborers, nurses, police, firefighters, and other public safety workers. ‘blue collar’ workers.• CASE 29.2 Smith v. Johnson and JohnsonSmith v. Johnson and Johnson

(2010). Is it unfair to exempt some employees from overtime, regardless of what the parties negotiate?


• Worker Adjustment and Retraining Worker Adjustment and Retraining Notification Act (WARN): Notification Act (WARN): requires 60 requires 60 days notice before a ‘mass layoff’ which days notice before a ‘mass layoff’ which means during a 30 day period, a means during a 30 day period, a reduction in force that results in loss of: reduction in force that results in loss of: –At least 33% of fifty (50) full-time

employees at a single job site, or–At least 500 full-time employees.


• Worker Adjustment and Retraining Worker Adjustment and Retraining Notification Act (WARN) (cont’d).Notification Act (WARN) (cont’d).–Notification Requirements.–Remedies for Violations.

• State Laws May Also Require Layoff State Laws May Also Require Layoff Notices.Notices.


• Coverage and ApplicationCoverage and Application: : FMLAFMLA requires employers with over 50 requires employers with over 50 employees to provide up to twelve (12) employees to provide up to twelve (12) weeks unpaid leave to employees who weeks unpaid leave to employees who need to care for a spouse, child, or parent need to care for a spouse, child, or parent suffering with a serious medical suffering with a serious medical condition.condition.–Serious injuries or military duty can

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• Benefits and ProtectionsBenefits and Protections: : – Employer must continue worker’s health care

on same terms. Employee must be restored to position upon return to work (unless it’s a “key” employee).

• ViolationsViolations of the FMLA. of the FMLA. –Damages, lost benefits & compensation, and

actual losses up to the equivalent of 12 weeks (26 weeks military), job reinstatement, and promotion, if denied.


• The Occupational Safety and Health The Occupational Safety and Health Act. (OSHA).Act. (OSHA).–The fundamental federal law aimed

toward safety in the workplace.–Enforcement is by OSHA, NIOSH, and

the OSHRC.


• State Workers’ Compensation Laws. State Workers’ Compensation Laws. Establish an administrative procedure for Establish an administrative procedure for compensating workers injured on the compensating workers injured on the job. Instead of suing for injuries, a worker job. Instead of suing for injuries, a worker is compensated.is compensated.–Requirements.–Workers’ Compensation Versus Litigation.


• Social SecuritySocial Security: : portion of income portion of income (whether paycheck or self-employed) (whether paycheck or self-employed) goes to FICA (Federal Insurance goes to FICA (Federal Insurance Contributions Act).Contributions Act).• MedicareMedicare: : federal government health-federal government health-

insurance program for people 65 years insurance program for people 65 years of age, and for those under 65 who are of age, and for those under 65 who are disabled.disabled.


• Private Pension Plans.Private Pension Plans. –ERISA does not require employers to

setup pension plans, but provides rules on management and investment.–Vesting.

• Unemployment Insurance.Unemployment Insurance.


• COBRACOBRA provides a federal right to provides a federal right to continued health insurance.continued health insurance.–Procedures: worker has 60 days to

decide.–Payment: COBRA is not free, payments

depending on conditions and worker status.


• Employer-Sponsored Group Health Employer-Sponsored Group Health Plans. Plans. –HIPAA: does not require health insurance

but it does establish requirements for health plans.• Strictly limits employer’s ability to exclude pre-

existing conditions.• Plus, restricts manner of disseminating patient

information.


• Electronic MonitoringElectronic Monitoring In the In the Workplace: Workplace: more than 2/3 employers more than 2/3 employers use some sort of electronic monitoring of use some sort of electronic monitoring of employees.employees.–Employee Privacy Rights Under

Constitutional and Tort Law: is there an employee expectation of privacy?


• Electronic MonitoringElectronic Monitoring (cont’d). (cont’d). –ECPA: “business-extension exception”

allows employer to monitor.–Stored Communications.

• Other Types of MonitoringOther Types of Monitoring..–Lie-Detector Tests.–Drug Testing.–Genetic Testing.–Screening Procedures.


• Immigration Reform and Control Act:Immigration Reform and Control Act: makes illegal to hire, recruit, or refer for makes illegal to hire, recruit, or refer for a fee someone not authorized to work in a fee someone not authorized to work in the U.S.the U.S.–I-9 Employment Verification: for new

hires.–Enforcement: by I.C.E.–Penalties.


• The Immigration Act:The Immigration Act: places caps on places caps on the number of visas that can be issued to the number of visas that can be issued to immigrants every year.immigrants every year.–I-551 Alien Registration Receipts.–The H-1B Visa Program.–Labor Certification.–H-2, O, L, and E Visas.


• Federal Labor LawsFederal Labor Laws..–Norris-LaGuardia Act: protects peaceful

strikes by limiting the injunction powers of federal courts.–National Labor Relations Act: establishes

the right of workers to strike and engage in collective bargaining. Establishing NLRB.


• Federal Labor Laws Federal Labor Laws (cont’d).(cont’d).–Labor Management Relations Act:

prohibits certain unfair union practices such as closed shops. Allowed individual states to pass right-to-work laws.– Labor-Management Reporting and

Disclosure Act: hot cargo-agreements, and secondary boycotts.


• Union OrganizationUnion Organization: : first step, majority first step, majority of workers sign authorization cards. of workers sign authorization cards. –Union Elections: can be held only if it

can be shown that at least 30% of the workers support the union and will be represented.


• Union OrganizationUnion Organization (cont’d). (cont’d). –Union Election Campaigns: NLRB regulates

the rights and obligations of employers and workers in the election process. Each side can pursue their objectives, but cannot interfere, beyond certain limits, in the other’s activities.–CASE 29.3 Local Joint Executive Board of Local Joint Executive Board of

Las Vegas v. NLRB Las Vegas v. NLRB (2008). What if the managers had videotaped the meetings?


• Collective BargainingCollective Bargaining: : process by which process by which management and labor negotiate the terms management and labor negotiate the terms and conditions of employment.and conditions of employment.– The NLRB will certify an exclusive bargaining

agent for labor.–Both labor and management must bargain in

good faith, but the law does not require that they reach an agreement.


• Strikes.Strikes. T There are two basic forms of here are two basic forms of strikes:strikes:–Economic Strikes: strikes over wages.

Workers can be replaced by permanent replacements.–Unfair Labor Practice Strikes: strikes

alleging that the employer has committed an unfair labor practice.


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