Employment Relationships (Chapter 17) Flashcards
What is “at-will” employment?
Doctrine that defines employment relationship in which either party can break said relationship with no liability, provided no express, defined term governing relationship and the employer (?) does not belong to a collective bargaining group (not recognized a union) amongst other exceptions. Any hire assumed to be “at will;” employer can discharge individuals for good, bad, or no cause. Employee can quit, strike, cease to work for no reason.
What is the state of “at will” employment today? Are there reasons for which employers can still terminate for no reason at all?
Employment law heavily regulated by state/federal statutes. Employment at will being chipped away. They can, but not for these reasons: civil rights protection and Union/Veteran status, contract (i.e. union) in place, because of tort, based on public policy.
If you are not an employee at will, what might your employee need to terminate you? What does that involve?
Needs “just cause,” a burden of proof or standard employer must meet to justify discipline or discharge. Usually refers to violation of company policy/rule (and employee has been warned about violation and potential termination). Used in union contracts and termination hearings.
What are 4 major exceptions to employment at will?
1) Contract Theory: Courts hold implied contract exists, including oral contracts and handbooks. Termination may give grounds for wrongful discharge.
2) Tort Theory: Abusing discharge procedures, defamation, IIED(?); reliance on false promises.
3) Public Policy: Employer may not fire if it would violate state’s public policy doctrine or state/federal statute. Includes retaliating against employee for performing act in line with public policy or refusing to perform one that would violate it. Many of these types are known as whistleblowing (WPA).
4) Discrimination statutes: Race, age, sex, national origin, pregnancy, disability, religion, union activity, veteran status.
What is the DOL?
Federal Department of Labor, oversees many of the areas of law including wage and hour law. See Chapter 17, Slide 9 for more examples.
What is the FLSA?
Fair Labor Standards Act (1938). Extension of wage & hour regulation to workers in interstate commerce. Most important, widely-used wage-hour law. Covers almost all employees in private sector. Prohibits oppressive child labor practices. Children under 14 can only do certain kinds of work (newspaper, agriculture, entertainment), 14-15 year olds allowed to work but not in hazardous occupations and restrictions on how many: 3 on school days and 8 on non. 16-18 - No restrictions on hours but still can’t be hazardous. Minimum wage laws - Regardless must pay federal, congress & states pay periodically. OT - Employees working > 40 hours/week must receive 1.5x pay for hours over 40, some states have different laws (California).
How are exempt workers treated?
If you are exempt, not required to be paid OT for working over 40 hours in a week. Some categories include executive, administrative, professional, outside salesperson, computer programmer. To be exempt you have to meet salary requirements (HCE $100,000, e.g.) and job requirements (What is primary duty? Does employee have exercise of discretion and independent judgment on matters of significance?)
What is working time?
Workweek ordinarily includes all time which employee is required to be on employer’s premises, on duty or at a prescribed workplace. Workday - when such an employee commences his/her “principal activity” and the time on that day which he/she ceases such activity. Workday may therefore be longer than employee’s scheduled shift, hours, tour of duty or production line time. Is the employee completely relieve of duties so that they can use the time for themselves?
What is WARN?
Worker Adjustment and Retraining Notification Act. Requires employers who are laying off 1/3 of workforce or 50 people to provide 60 days notice and notify state and local government.
What is FMLA? For what conditions may an employer provide it?
FMLA requires employers with >50 employees to provide 12 weeks of unpaid leave to employees for:
1) Care for a spouse, child or family member with a serious health condition.
2) Care for themselves if serious health condition. (Includes mental or physical, broad definition).
3) Care for a newborn baby (mother or father).
4) Care for an adopted or foster child.
5) Take care of military exigency (i.e. arrange for child care if spouse is being called to active duty in military).
6) 26 weeks to care for a family member seriously injured in military.
What are the conditions surrounding FMLA?
Leave can be intermittent, does not need to be taken in consecutive weeks (causes many problems with covering employee absence). Must have worked 1 year and 1250 hours within 12 month period, doesn’t matter full/part-time status. Many requirements and documents for employer/employee to follow; employee doesn’t have to say they need it, employer needs to offer it if after listening to employee seems likely they need it. Protects Employee’s health and job benefits, cannot be terminated for taking leave under policy and has right to restoration of same or similar position after returning. Remedies for violations include unpaid salary, lost benefits, job reinstatement and promotion.
What is OSHA?
Occupational Safety and Health Act. Federal law aimed towards safety in workplace, there is federal agency but states like KY have own departments and keep records instead of federal government. Employers with 11 or more employees required to keep records. Work related injuries reported on monthly basis, death of an employee or 3 or more hospitalized must be reported within 8 hours. OSHA Whistleblower/statutory exception to employment at will.
What do state workers’ comp laws do?
Reduce employer liability to employees for workplace injuries and provide a measure of assurance that workplace injuries that workplace injuries will be compensated regardless of solvency of employer. Requires that employees make claim against employer’s worker’s comp insurance policy rather than suing employer (employer can’t argue contrib neg), requires most employers to carry workers’ comp insurance, there must be employment relationship and injury must occur on job or in course of employment, regardless of fault. Intentional injuries - Employees can sue employers.
What are the 6 primary income security laws?
1) Social Security: Provides for retirement. Employees and employers contribute, 6.2% each (employer withholds 6.2% from employee check and matches).
2) Medicare: Federal gov’t health insurance program for those 65 and older, both employer and employee contribute 1.45%.
3) Private Pension plans: Employee Retirement Income Security Act (ERISA) gives employee vested right to receive pension benefits at a certain date when they stop working. Generally all EE contribs to a pension vest immediately, employees will vest after 5 years.
4) Unemployment compensation: Employers pay unemployment tax into a fund for every employee. To be eligible worker must be willing to work and actively seeking employment, must not have been fired for misconduct or cause.
What are the 6 primary income security laws? (Cont.)
5) Consolidated Omnibus Reconciliation Act (COBRA) - Prohibits discontinuance of insurance benefits of workers who voluntarily/involuntarily been separated for work unless gross misconduct. Employees responsible for payment but can continue on employer’s plan after termination. Employers under strict obligation to notify employees of COBRA rights.
6) Affordable Care Act (ACA) - Employers with 50+ employees must offer healthcare to full-time employees. Large fines associated if this is not done.
