Employment
There are three forms of agreements covering employment contracts:individual employment contracts, collective bargaining contracts and employment-at-will agreements.Collective bargaining contracts are negotiated with unions and cover the nature of work, wages, benefits, promotions, layoffs, seniority provisions, and grievance procedures.
A.Characteristics of relationship
1.Contractual; coming under government regulations
2.Employee v. Independent Contractor – difference is CONTROL
B.Creation of employment relationship
1.Individual employment contracts
2.Collective bargaining contracts
C.Duration and termination of employment contract
1..Employment‑at‑will doctrine and developing exceptions
A .Fire for any reason or no reason
b.Cannot fire for an illegal reason (ie. Age, sex, race, religion, etc)
2.Justifiable discharge
a.Nonperformance; fraud in obtaining employment; disobedience; disloyalty; dishonesty; possession or use of drugs; misconduct; incompetency
b.Layoffs due to economic conditions
D.Whistleblower protection under Sarbanes-Oxley and Dodd-Frank Acts
1.Title VIII of Sarbanes-Oxley provides protections for corporate whistle-blowers
2.Protection for employees who testify and/or assist on prosecution for
a.Mail, wire, bank or securities fraud
b.Any violation of an SEC rule
c.Any federal law protecting shareholders against fraud
3.Protected even if incorrect if there is a reasonable belief
5.Dodd-Frank expansion
a.Covers all employees working in financial services industries
E.Duties of the employee
1.Services (and Loyalty)
2.Trade secrets
a.Duty not to disclose or compete
b.Injunction can halt future employment
3.Inventions – may be covered in the employment contract
F.Rights of the employee
1.Compensation
2.Federal wage and hour law
a.Subminimum wage provisions
b.Wage issues
c.Overtime pay
d.Child labor provisions
II.What are the Labor Relations Laws and What Do They Require?
A.The National Labor Relations Act
1.Passed in 1935
2.Section 7 allows unionization and collective bargaining
3.Section 8 states unfair labor practices by employers and unions
4.Applies to private sector employers with gross incomes of $500,000 or more
B.Firing employees for union activity
C.Duty of employer to bargain collectively
1.Union is exclusive representative of employees
2.Review the mandatory subjects of bargaining and the permissive subjects of bargaining
D.Right to work – the NRLA allows states to enact right‑to‑work laws, which allow the worker to choose not to join a union
1.SC is a right to work state .
III.What are the Benefits in an Employment Relationship and How Are They Regulated?
A.ERISA:Employee Retirement Income Security Act:fiduciary standards and reporting – must make detailed reports to the Secretary of Labor
B.Vesting required
1.Must vest within five or seven years
2.Retirement Equity Act of 1984 – leave for up to 5 years and still retain benefits
C.Funding – Employer requirement to match
IV.What Regulations Exist for Employee Security?
A.Unemployment compensation
1.Eligibility
a.The unemployed person must be available for a similar job
b.Not eligible if quit without cause or fired for misconduct
2.Funding – employers all taxed based on past experience
B.Family and Medical Leaves (FMLA)
1.Up to 12 weeks of unpaid leave during any 12-month period
2.For birth, adoption of child or care of spouse, parent or child
3.Employee health
4.Position guaranteed upon return
C.Leaves for military service under USERRA
1.Right to prompt reemployment for returning reservists
2.Protections for those disabled in military duty
3.Remedies of back pay
4.No retaliation
D.Social security
1.Retirement benefits, disability benefits, life insurance, and health insurance (Medicare)
2.Supplemental Security Income (SSI) for the aged, blind, and disabled
V.What Regulations for Protection of Employee Safety Exist?
A.Employee’s health and safety
1.Occupational Safety and Health Act of 1970
2.The workplace must be free from recognized hazards likely to cause death or serious injury
3.Employers must maintain records of occupational illnesses and injuries
4.Inspections
VI.What are the Compensations for Employees’ Workplace Injuries?
A.Compensation for employee’s injuries
1.Common law status of employer
a.Duties
i.Reasonably safe place to work
ii.Duty to warn of unusual dangers
b.Defenses
i.Fellow servant rule – employer not liable
ii.Employee‑assumed risk – employer not liable
2.Workers’ compensation systems – NO FAULT
a.State systems for covering injuries
b.Very few defenses for employers – self-inflicted intentional
VII.What are the Rights of Employees in the Workplace?
A.Privacy
1.Bill of Rights and 14th Amendment
2.But, employers often notify of waiver as a precondition of employment
3.Telephone conversation monitoring
4.E-mail monitoring
a.Consent given – employees told
b.Employer’s property
a.They are electronic communication services
b.Probably covered under several statutes
c.Can be accessed by employers
6.Property searches
a.Public employers permitted to search work areas
b.Private employers may create an expectation of privacy
7.Drug and alcohol testing
a.Needed for public safety in many circumstances
b.Key is advance warning
VIII.What are the Laws on Employees and Immigration?
A.Governed by Immigration Reform Act
B.Criminal and civil penalties
C.Employer must:
1.Verify citizenship or green card status
a.Acceptable document – three lists
b.Include driver’s license, social security card, birth certificate, permanent residence card
c.E-Verify system now available