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Employment Law. Employment. A legal relationship based on a contract that calls for one individual to be paid for working under another’s direction and control. Independent Contractor – Hired to produce a result only. (Not to do it a certain way as defined by an employer.).
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Employment • A legal relationship based on a contract that calls for one individual to be paid for working under another’s direction and control. • Independent Contractor – Hired to produce a result only. (Not to do it a certain way as defined by an employer.)
HOW ARE EMPLOYMENT CONTRACTS MADE? • Terms of the employment contract • Express agreements • Implied agreements • Terms imposed by law • (Not looking at the “4 corners.”)
HOW ARE EMPLOYMENT CONTRACTS TERMINATED? • By performance • By termination at will • Wrongful discharge • Violation of contract terms • Government employees • By material breach • Unemployment compensation
Employment at Will • At-will employees – employees who do not have employment contracts. • Wrongful discharge – the discharge (termination) of an employee in violation of a statute, an employment contract, or public policy, or tortiously. • The employee can recover damages and other remedies.
Employment at Will (continued) Statutory Exceptions Contract Exceptions Public Policy Exception Tort Exceptions
WHAT ARE AN EMPLOYER’S DUTIES? • Duties owed to employees • Reasonable treatment • Safe working conditions • Fair labor standards • Payroll deductions • Military service • Voting
WHAT ARE AN EMPLOYER’S DUTIES? (continued) • Duties owed to minors • State laws • Federal law • Duties owed to those injured by employees
WHAT ARE AN EMPLOYEE’S DUTIES? • Duty to fulfill the employment contract • Duty of obedience • Duty of reasonable skill • Duty of loyalty and honesty • Duty of reasonable performance
Government Employees • Most “public” employees are entitled to Due Process (notice and hearing) before they can be discharged.
APPROACHES TO PROTECT WORKERS FROM ON-THE-JOB INJURIES • Preventive approach • After-the-fact compensation for injuries. • i.e. Worker’s Compensation (discussed further)
REQUIRING A SAFE WORKPLACE • Legislative background of OSHA • OSHA’s responsibilities • Assure a hazard-free workplace • Develop and enforce specific regulations • Conduct workplace inspections • Dealing with OSHA violations
Do you agree with the following statement?By definition, an employee is under the supervision and control of the employer; therefore, almost any job-related injury the employee receives is due directly or indirectly to negligent supervision and control.
NEGLIGENCE LAW AND WORKERS’ COMPENSATION • Employee negligence suits • Difficulties for employees in negligence suits • The compromise of workers’ compensation
Workers’ Compensation Acts Acts that compensate workers and their families if workers are injured in connection with their jobs.
NEGLIGENCE LAW AND WORKERS’ COMPENSATION (continued) • Recovering in lieu of workers’ compensation • If employer fails to provide workers’ compensation insurance • If employee coverage is not required • If the injury is not covered by workers’ compensation • Employer commits an intentional tort
Workers’ Compensation Insurance • States usually require employers to: • To pay for workers’ compensation insurance, or • To self-insure by making payments into a contingency fund.
Employment Related Injury • To recover under workers’ compensation, the worker’s injuries must have been employment-related. • Stress may be a compensable work-related injury.
Exclusive Remedy • Workers’ compensation is an exclusive remedy. • Workers cannot sue their employers in court for damages. • Exception occurs when an employer intentionally injures an employee (tort).
Occupational Safety and Health Act (1970) • Enacted to promote safety in the workplace. • Established the Occupational Safety and Health Administration (OSHA). • Virtually all private employers are within the scope of the act. • Federal, state, and local governments are exempt.
Occupational Safety and Health Act(continued) • The act imposes record keeping and reporting requirements on employers. • Employers are required to post notices in the workplace informing employees of their rights under this act. • OSHA is empowered to administer the act and adopt rules and regulations to interpret and enforce it.
Occupational Safety and Health Act(continued) • OSHA is empowered to inspect places of employment for health hazards and safety violations. • If a violation is found, OSHA can issue a written citation. • Requires the employer to abate or correct the situation.
Types of OSHA Standards • Specific Duty Standard • Addresses a safety problem of a specific duty nature. • e.g., requirement for a safety guard on a particular type of equipment • General Duty Standard • Duty that an employer has to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Fair Labor Standards Act (FLSA) • Federal act enacted in 1938 to protect workers. • Prohibits child labor • Establishes minimum wage requirements • Establishes overtime pay requirements
Child Labor • The FLSA forbids the use of oppressive child labor. • It is unlawful to ship goods produced by businesses that use oppressive child labor. • The Department of Labor defines the standards for lawful child labor.
Minimum Wage and Overtime Pay • Managerial, administrative, and professional employees are exempt from the FLSA’s wage and hour provisions. • Employers are required to pay covered (non-exempt) workers at least the minimum wage for their regular work hours. • Overtime pay is also mandated.
Minimum Wage • Set by Congress and can be changed. • Employers are permitted to pay less than minimum wage to students and apprentices. • An employer may reduce minimum wages by an amount equal to the reasonable cost of food and lodging provided to employees. • FLSA Minimum Wage: The federal minimum wage is $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009. • (Calif. Minimum wage is $8.00 per hour.)
Overtime Pay • An employer cannot require nonexempt employees to work more than 40 hours per week unless they are paid one-and-a half times their regular pay for each hour worked in excess of 40 hours. • Each week is treated separately.
FOCUS • What was a recent strike in our community? • Who was on strike? • What were the issues? • What was the outcome?
The right of workers to form, join, and assist labor unions is a statutorily protected right in the United States.
HOW IS A UNION ESTABLISHED? • Determining the bargaining unit • Attempting voluntary recognition • Holding a certification election • Certification campaigns • Decertification • Negotiating the employment contract • Union and agency shops • Open and closed shops
Steps in Establishing a Union • I. Establish a Bargaining Unit • A) Determine which employees should be represented. • B) Determine whether a majority wants union representation.
Steps in Establishing a Union • II. Initiate a Certification Vote • A) Organizers must obtain signatures of at least 30% of employees in bargaining unit. • B) If the 30% requirement is met, NLRB conducts hearings; decides who is in bargaining unit and who can vote.
Steps in Establishing a Union • III. Become Exclusive Bargaining Agent • A) NLRB conducts a secret vote of workers. • B) If union selected, NLRB acknowledges it as bargaining agent.
Federal Labor Union Statutes Norris-LaGuardia Act National Labor Relations Act Labor-Management Relations Act Labor-Management Reporting and Disclosure Act Railway Labor Act
HOW IS A LABOR CONTRACT NEGOTIATED WITH A UNION? • Collective bargaining • Strike • Lockout • Mediation
Employer Lockout Act of the employer to prevent employees from entering the work premises when the employer reasonably anticipates a strike.
WHAT ARE UNFAIR LABOR PRACTICES? • Management’s unfair labor practices • Interfering with employees’ efforts to form, join, or assist unions • Dominating a union or giving it financial or other support • Encouraging or discouraging union membership • Refusing to bargain in good faith with the union
WHAT ARE UNFAIR LABOR PRACTICES? (continued) • Unfair labor practices by unions • Unfair labor practices in strikes and boycotts • Strikes • Boycotts
Do employers discriminate… • to find the best person for the job based on individual abilities?
WHEN IS DISCRIMINATION ILLEGAL? • Protected classes • Race and color • Gender • Medical Condition (Pregnancy) • Age • Religion • Disability • National origin Chapter 21
WHEN IS DISCRIMINATION ILLEGAL? (continued) • Scope of protection • Against unjustified conditions of employment • Governing most employers
LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION • Title VII of the Civil Rights Act of 1964 • Equal Pay Act of 1963 • Age Discrimination in Employment Act of 1967 • Americans with Disabilities Act • Pregnancy Discrimination Act
Proving Illegal Discrimination GOALS • Discuss how a case based on unequal treatment is proven • Describe how a case based on disparate impact is proven • Recognize the forms of sexual harassment
Sexual Harassment • Sex Discrimination is a BEHAVIOR. It occurs when employment decisions are based on an employee’s gender or when an employee is treated differently because of his/her sex. • Sexual Harassment is a BEHAVIOR. It is defined as unwelcome behavior of a sexual nature.
Sexual Harassment • The U.S. Equal Employment Opportunity Commission defines sexual harassment to include: • (1) Unwelcome sexual advances that implicitly or explicitly condition an employment benefit on submission to such advances. “quid pro quo” • (2) Unwanted sexual conduct that offends an individual enough that it creates an intimidating or “hostile work environment” that interferes with the victim’s emotional well-being.