Chapter 10 - Employment, Immigration, and Labor Laws Flashcards Preview

Business Law for Accountants > Chapter 10 - Employment, Immigration, and Labor Laws > Flashcards

Flashcards in Chapter 10 - Employment, Immigration, and Labor Laws Deck (77):
1

authorization card

- a card signed by an employee's that gives a union permission to act on his or her behalf in negotiations with management
- unions typically use authorization cards as evidence of employee support during Union organization

2

cease-and-desist order

- an administrative or judicial order prohibiting a person or business firm from conducting activities that an agency or court has deemed illegal

3

closed shop

- a firm that requires Union membership by its workers as a condition of employment
- the closed shop was made illegal by the Labor-Management Relations Act of 1947

4

collective bargaining

- the process by which labor and management negotiate the terms and conditions of employment, including working hours and workplace conditions

5

employment at will

- a common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise
- federal and state statutes governing employment relationships prevent the doctrine from being applied in a number of circumstances

6

hot-cargo agreement

- an agreement in which employers voluntarily agree with unions not to handle, use, or deal in nonunion-produced goods of other employers; a type of secondary boycott explicitly prohibited by the Labor-Management Reporting and Disclosure Act of 1959

7

I-551 Alien Registration Receipt

- proof that a noncitizen has obtained permanent residency in the United States; the so-called green card
- a company seeking to hire a noncitizen worker may do so if the worker is self-authorized
- this means that the worker either is a lawful permanent resident or has a valid temporary Employment Authorization Document
- a lawful permanent resident can prove his or her status to an employer by presenting an I-551 Alien Registration Receipt, known as a green are, or a properly stamped foreign passport

8

I-9 verification

- a form from the Department of Homeland Security, U.S. Citizenship and Immigration Services, used for employment eligibility verification; a form that documents that each new employee is authorized to work in the United States
- to comply with the Immigration Reform and Control Act (IRCA)l an employer must perform I-9 verifications for new hires, including those hired as "contractors" or "day workers" if they work under the employer's direct supervision
- the employer must complete Form I-9, Employment Eligibility Verification, which is available from U.S. Citizenship and Immigration Services, for each worker within three days of his or her omen cement of employment
- the three day period allows the employer to check the firm's accuracy and to review an verify documents establishing the prospective worker's identity and eligibility for employment in the United States
- if the employee enters false information on the form or presents false documentation, the employer can fire the worker, who then may be subject to deportation

9

lockout

- occurs when an employer shuts down to prevent employees from working typically because it cannot reach a collective bargaining agreement with the union

10

minimum wage

- the lowest wage, either by government regulation or union contract, that an employer may pay an hourly worker

11

right-to-work law

- a state law providing that employees are not to be required to join a union as a condition of obtaining or retaining employment

12

secondary boycott

- a union's refusal to work for, purchase from, of handle the products of a secondary employer, with whom the union has no dispute, for the purpose of forcing that employer to stop doing business with the primary employer, with whom the union has a labor dispute

13

strike

- an extreme action undertaken by unionized workers when collective bargaining fails; the workers leave their jobs, refuse to work, and (typically) picket the employer's workplace

14

union shop

- a place of employment in which all workers, once employed, must become union members with is a specified period of time as a condition of their continued employment

15

vesting

- under the Employee Retirement Income Security Act of 1974, a pension plan becomes vested when an employee has a legal right to the benefits purchased with the employer's contributions, even if the employee is no longer working for this employer

16

whistleblowing

- an employee's disclosure to government, the press, or upper-management authorities that the employer is engaged in unsafe or illegal activities

17

workers' compensation law

- state statutes establishing an administrative procedure for compensating workers' injuries that arise out of - or in the course of - their employment, regardless of fault

18

wrongful discharge

- an employer's termination of an employee's employment in violation of an employment contract or laws that protect employees

19

SAMPLE TEST QUESTIONS
1. Febo is an employee of Guitar & Drum Company. Guitar & Drum's employee manual states that workers, such as Febo, will be dismissed only for good cause. With respect to the employment-at-will doctrine, this is :
a. an example of the doctrine
b. an exception based on contract theory
c. an exception based on public policy
d. an exception based on tort theory

ANSWER :
(A)
CORRECT :
(B) an exception based on contract theory

20

SAMPLE TEST QUESTIONS
2. Vidal is an employee of Wild Thing Ranch. Vidal learns that Wild Thing is illegally importing endangered animals to sell as pets. He reports his employer's illegal activities but is laid off shortly thereafter and successfully sues Wild Thing for retaliatory discharge. With respect to the employment-at-will doctrine, this is :
a. an example of the doctrine
b. an exception based on contract theory
c. an exception based on public policy
d. an exception based on tort theory

ANSWER :
(B)
CORRECT :
(C) an exception based on public policy

21

SAMPLE TEST QUESTIONS
3. Flannery is seventeen years old. Under the Fair Labor Standards Act, she cannot work :
a. during school hours
b. in a hazardous job
c. more than eighteen hours per week
d. without a special permit

ANSWER :
(A)
CORRECT :
(B) in a hazardous job

22

SAMPLE TEST QUESTIONS
4. Curtis is an employee of Deepwater Drilling, Inc., covered by federal overtime provisions, which apply only after an employee has worked more than :
a. eight hours a day
b. forty hours a week
c. 160 hours in a month
d. one year for the same employer

ANSWER :
(B)
CORRECT :
(B) forty hours a week

23

SAMPLE TEST QUESTIONS
5. Mythic Games Company employs two hundred worker full-time. If Mythic Games plans to have a mass layoff, it must provide its employees with notice of at least :
a. thirty days
b. sixty days
c. ninety days
d. one year

ANSWER :
(A)
CORRECT :
(B) sixty days

24

SAMPLE TEST QUESTIONS
6. Geno's Italiano Ristorantes, Inc., employs three hundred workers at four locations in two states. Under federal law, Geno's must provide each employee, during any twelve-month period, family or medical leave of up to twelve :
a. days
b. weeks
c. months
d. years

ANSWER :
(A)
CORRECT :
(B) weeks

25

SAMPLE TEST QUESTIONS
7. Livia takes temporary family leave from her job at Meatpackers Corporation to care for a new baby. On Livia's return from leave, Meatpackers must :
a. restore Livia to her original position
b. reimburse Livia for her expenses while on leave
c. promote Livia to the status of a key employee
d. do nothing

ANSWER :
(A)
CORRECT :
(A) restore Livia to her original position

26

SAMPLE TEST QUESTIONS
8. Steel Production Industries, Inc., employs five hundred workers. For the Occupational Safety and Health Administration, Steel Production must do all of the following except :
a. keep occupational injury and illness records for each employee
b. report any work-related diseases
c. report any employee death due to a work-related incident within eight hours
d. pay employees higher wages for working in more dangerous areas

ANSWER :
(D)
CORRECT :
(D) pay employees higher wages for working in more dangerous areas

27

SAMPLE TEST QUESTIONS
9. Blayne is an employee of Chemical Refinery, Inc. Blayne is threatened with a discharge when he refuses a transfer to a Chemical Refinery department in which several employees suffered serious injuries from exposure to hazardous chemicals. Blayne may be entitled to protection from discharge under :
a. no law
b. the Family and Medical Leave Act
c. the Occupational Safety and Health Act
d. the state workers' compensation act

ANSWER :
(C)
CORRECT :
(C) the Occupational Safety and Health Act

28

SAMPLE TEST QUESTIONS
10. Seiko works for TallTale Publishing, Inc. The basis for Seiko's contribution under the Federal Insurance Contribution Act to help pay for benefits that will partially make up for her loss of income on retirement is her :
a. seniority at TallTales
b. annual wage base
c. special job skills
d. county of residence

ANSWER :
(B)
CORRECT :
(B) annual wage base

29

SAMPLE TEST QUESTIONS
11. Investment Sales Corporation wants to monitor its employees' electronic communications. Investment Sale's best course of action to avoid liability under laws related to employee monitoring is to notify :
a. no one
b. its employees
c. it's clients
d. the public generally

ANSWER :
(B)
CORRECT :
(B) it's employees

30

SAMPLE TEST QUESTIONS
12. Data & Data Accountants, a private employer, handles bookkeeping for small employers. In most circumstances, with exceptions, federal law clearly prohibits Data & Data from subjecting its employees to :
a. job-skills tests
b. monitoring of business communication
c. drug tests
d. lie-detector tests

ANSWER :
(D)
CORRECT :
(D) lie-detector tests

31

SAMPLE TEST QUESTIONS
13. Ripe Orchards, Inc., employs hundreds of seasonal and permanent workers, both skilled and unskilled, in three states. Under federal immigration law, Ripe Orchards can hire illegal immigrants :
a. if either the employer or the immigrants file special forms
b. only if the employer files a special form
c. only if the immigrants file special forms
d. under no circumstances

ANSWER :
(B)
CORRECT :
(D) under no circumstances

32

SAMPLE TEST QUESTIONS
14. Hu, Ivan, and Juana apply to work for King Poultry Company. These individuals' identities and eligibility to work must be verified by :
a. King Poultry
b. Hu, Ivan, and Juana
c. Hu, Ivan, and Juana's countries of origin
d. U.S. Citizenship and Immigration Services

ANSWER :
(D)
CORRECT :
(A) king Poultry

33

SAMPLE TEST QUESTIONS
15. Restocking Warehouse Corporation keeps a file of I-9 verification forms. To inspect this file, the appropriate government officer must obtain :
a. a subpoena and a warrant
b. a subpoena or a warrant
c. a special executive order
d. none of the choices

ANSWER :
(D)
CORRECT :
(D) none of the choices

34

SAMPLE TEST QUESTIONS
16. Cloud Computing & Processing Corporation wants to hire Dhani, a noncitizen of "extraordinary ability." To hire Dhani, Cloud Computing must petition :
a. U.S. Citizenship and Immigration Services
b. the Social Security Administration
c. the U.S. Immigration and Customs Enforcement
d. the National Labor Relations Board

ANSWER :
(A)
CORRECT :
(A) U.S. Citizenship and Immigration Services

35

SAMPLE TEST QUESTIONS
17. Food Packagers Union represents the worker of Garden Variety, Inc. The company does not require its new hires to join the union as a prerequisite to obtaining employment. Food Packagers would like Garden Variety to require the workers to join after a specified amount of time on the job. This would violate :
a. federal labor law
b. federal immigration law
c. federal wage and hour laws
d. no federal law

ANSWER :
(D)
CORRECT :
(D) no federal law

36

SAMPLE TEST QUESTIONS
18. During a union election campaign, Auto Body Paint & Repair, Inc., prohibits on-site solicitation by any party, including Mechanics Union, which is seeking the workers' unionization. This violates :
a. federal labor law
b. federal elections law
c. federal employment discrimination law
d. no federal law

ANSWER :
(A)
CORRECT :
(D) no federal law

37

SAMPLE TEST QUESTIONS
19. Bank Professionals Union represents the workers of Commerce Bank. The bank refuses to bargain with the union over the economic consequences to the employees of management's decision to shut down some facilities. This most likely violates :
a. federal labor law
b. state right-to-work laws
c. federal wage-and-hour laws
d. no federal or state law

ANSWER :
(A)
CORRECT :
(A) federal labor law

38

SAMPLE TEST QUESTIONS
20. Technicians Union represents the workers of Unix Toys. A strike by the union will be legal if the strikers :
a. form a picket line
b. form a massed barrier and deny management and nonunion workers access to Unix Toys's plant
c. stay in Unix Toys's plant without working
d. all of the choices

ANSWER :
(A)
CORRECT :
(A) form a picket lin

39

Exceptions to the Employment-at-Will Doctrine

- Exceptions Based on Contract Theory
- some courts have held that an implied employment context exists between the employer and the employee
- if the employee is fired outside the terms of the implied contract, he or she may succeed in an action for breach of contract even though no written employment contract exists
- if an employee fires an employee for an arbitrary or unjustified reason, the employee can claim that the employer breached the covenant of good faith and violated the contract
- Exceptions Based on Tort Theory
- abusive discharge procedures may result in a lawsuit for intentional infliction of emotional distress or defamation
- some courts have permitted workers to sue under the tort theory of fraud when an employer made false promises to a prospective employee
- Exceptions Based on Public Policy
- most common employment-at-will doctrine is made on the basis that the employer's reason for firing the employee violates a fundamental public policy of the jurisdiction
- the public policy exception may apply to an employee who is discharged did whistleblowing

40

Wrongful discharge

- whenever an employer discharges an employee in violation of an employment contract or a statutory law protecting employees, the employee may bring an action for wrongful termination
- even if an employer's actions do not violate any express employment contract or statute, the employer may still be subject to liability under a common law doctrine, such a tort theory or agency

41

Wages, Hours, and Layoffs

1. The Davis-Bacon Act - requires contractors and subcontractors working on federal government construction projects to pay "prevailing wages" to their employees.
2. The Walsh-Healey Act - applies to U.S. government contracts. It requires that a minimum wage, as well as overtime pay at 1.5 times regular pay rates, be paid to employees of manufacturers or suppliers entering into contracts with agencies of the federal government.
3. The Fair Labor Standards Act (FLSA) - extended wage hour requirements to cover all employers engaged in interstate commerce or in producing goods for interstate commerce, plus selected other types of businesses. The FLSA, as amended, provides the most comprehensive federal regulation of wages and hours today

42

Child Labor

- FLSA prohibits oppressive chI of labor
- children under fourteen years of age are allowed to do only certain types of work, such as deliver newspapers, work for their parents, and be employed in entertainment and (with some exceptions) agriculture
- children aged fourteen and fifteen are allowed to work, but not in hazardous occupations
- there are also numerous restrictions on how many hours per day and per week children can work
- working times and hours are not restricted for persons between the ages of sixteen and eighteen, but they cannot be employed in hazardous jobs
- none of these restrictions apply to those over the age of eighteen

43

Minimum Wages

- FLSA provides that a minimum wage of $7.25 per hour must be paid to employees in covered industries
- Congress periodically revises the minimum wage
- many states have minimum wages
- when the state minimum is greater than the federal minimum wage, the employee is entitled to the hire wage
- when an employee receives tips while on the job, the employer is required to pay only $2.13 per hour in direct wages - if that amount, plus the tips received, equals at least the federal minimum wage , if it does not, the employer must make up the difference

44

Overtime Provisions and Exemptions

- under the FSLA, any employee who works more than forty fours per week must be paid no less than 1.5 times his or her regular pay for all hours over forty
- certain employees - usually administrative, executive, and professional employees, as well as outside salespersons and computer programmers - are exempt from FLSA's overtime provisions
- Executive Employees
- primary duty is management
- an employer cannot deny overtime wages based only on an employee's job title, however, and must be able to show that the employee's primary duty qualifies him or her for an exemption
- Administrative Employees
- to qualify under the administrative employee exemption, the employee must be paid a slap army, not hourly wages, and have a primary duty directly related to management or the employer's general business operation
- the employee's primary duty must include the exercise of discretion and independent judgement with respect to matters of significance

45

Layoffs

- the Worker Adjustment and Retraining Notification (WARN) Act applies to employer's with at least one hundred full time employees
- it requires an employer to provide sixty days not us before implementing a mass layoff or closing a plant that employs more than fifty full time workers
- a mass layoff is a layoff of at least one-third of the full time employees at a particular job site
- Employers must :
- provide adequate advance notice to the affected workers or their representative (if members are part of a labor union)
- notify state and local government authorities so they can provide resources , such as job training, to displaced workers
- any part time or seasonal employees who are being laid off must be notified
- companies that anticipate filing for bankruptcy normally just proved notice under the WARN Act before implementing a mass layoff
- if sued, an employer that orders a mass layoff or pa,but closing in violation of WARN act can be fined up to $500 for each day of the violation
- employees can recover back pay for each day of the violation (up to sixty days) plus reasonable attorneys fees and can also recover benefits under an employee benefit plan, including the cost of medical expenses that would have been covered by the plan
- because the WARN Act applies to large employers that lay off thousands of workers, lawsuits can be expensive (the amount an employer must pay grows larger each day and is multiplied by the number of employees involved in the suit)
-

46

Family and Medical Leave

- in 1993, Congress passed the Family and Medical Leave Act (FMLA) to allow employees to take time off work for family and medical reasons
- the FMLA does not supersede any state or local law that provides more generous family or medical leave protection
-requires employers that have fifty or more employees to provide an employee for up to twelve weeks of unpaid family or medical leave during any twelve month period for any of the following reasons :
1. To care for a newborn within one year of birth
2. To care for an adopted or fostered child within one year of the time the child is placed with the employee
3. To care for the employee's spouse, child, or parent who has a serious health condition
4. If the employee suffers from a serious health condition and is unable to perform the essential functions of his or her job
5. For any qualifying exigency (nonmedical emergency) arising out of the fact that the employee's spouse, son, or daughter, or parent is a covered military member on active duty.

47

Benefits and Protection

- an employer that violates FMLA can be required to provide various remedies including :
1. Damages to compensate the employee for lost wages and benefits, denied compensation, and actual monetary losses (such as the cost of providing for care of a family member). Compensatory damages are available up to an amount equivalent to the employee's wages for twelve weeks.
2. Job reinstatement
3. Promotion, if a promotion is denied
- a successful plaintiff is also entitled to court costs and attorneys fees

48

Occupational Safety and Health Act

- at federal level, primary legislation protecting employees health and safety
- imposes on employers a general duty to keep the workplace safe
- has established safety standards that employers must follow depending on the industry
- requires that employers post certain notices in the workplace, maintain specific records, and submit reports
- employers with eleven or more employees are required to keep occupational injury and illness record for each employee that must be made available for inspection when requested by an OSHA compliance officer
- whenever a work related injury or disease occurs, employees must make reports directly to OSHA
- if an employee dies or three or more employees are hospitalized because of a work related incident, the employer must notify the OSHA within eight hours, a company that fails to do so will be fined
- following the incident, a complete inspection of the premises is mandatory
- OSHA compliance officers may enter and inspect facilities of any establishment covered by the Occupational Safety and Health Act
- employees may also file complaints of violations
- under the act, an employer cannot discharge an employee who files a complaint or who, in good faith, refuses to work in a high risk area if bodily harm or death might result

49

States Workers Compensation Laws

- instead of suing, an injured worker can file a claim with the state agency or board that administers local workers compensation claims
- typically, domestic workers, agricultural workers, temporary employees, and employees of common carriers (companies that provide transportation services to the public) are excluded, but minors are covered
- requirements to recover benefits under state workers compensation laws are :
1. The existence of an employment relationship
2. An accidental injury that occurred on the job or in the course of employment, regardless of adult (An injury that occurs while an employee is commuting to or from work usually is not covered because it did not occur on the job or in the course of employment)
- an injured employee must notify his or her employer promptly (usually within thirty days if the accident)
- generally an employee must also file a workers compensation claim within a certain period (sixty days to two years) from the time the injury is first noticed

50

Social Security Act

- provides for old-age (retirement), survivors, and disability insurance and is referred to as OASDI
- both employers and employees must "contribute" under the Federal Insurance Contributions Act (FICA) to help pay for the benefits that will partially make up for the employees loss of income on retirement
- the basis for the employee's contribution is the employee's annual wage base - the maximum amount of the employee's wages that is subject to the tax
- annual wage base is adjusted each years as needed to take into account the rising cost of living
- retired workers are eligible to receive monthly payments from the Social Security Administration

51

Medicare

- federal government health insurance program administered by the Social Security Administration for people sixt-five years of age and older and for some under age sixty-five who are disabled
- originally had two parts one pertaining to hospital costs and the other to nonhospital medical costs, such as visits to physicians offices
- now offers additional coverage options and prescription drug plan
- is funded by "contributions" from the employer and the employee, but there is no cap on the amount of wages subject to the Medicare tax (1.45 percent of all wages and salaries from employee and employer)

52

Employee Retirement Income Security Act (ERISA)

- it's provisions governing employers who have private pension funds for their employees are enforced by the U.S. Department of Labor
- created the Pension Benefit Guaranty Corporation (PBGC), an independent federal agency, to provide timely and uninterrupted payment of voluntary private pension benefits
- pay annual insurance premiums, which then pays benefits to participants in the event that a plan is unable to do so
- ERISA does not require an employer to establish a pension plan
- when a plan exists, however, ERISA provides standards for its management and imposes detailed record keeping and reporting requirements
- a key provisions concerns vesting

53

Federal Unemployment Tax Act (FUTA)

- created a state administered system that provides unemployment compensation to eligible individuals who have lost their jobs
- to be eligible, a worker must be willing and able to work
- workers who have been fired for misconduct or who have voluntarily left their jobs are not eligible for benefits

54

Consolidated Omnibus Budget Reconciliation Act (COBRA)

- enables employees to continue health care coverage after their jobs have been terminated and they are no longer eligible for group health insurance plans
- prohibits an employer from eliminating a worker's medical, vision, or dental insurance on the voluntary or involuntary termination of the worker's employment
- employer violation can results in tax of up to 10 percent of the annual cost of the group plan or $500,000, whichever is less
- a worker has sixty days (from the date that the group coverage would stop) to decide whether to continue with the employer's group insurance plan
- if the worker chooses to discontinue, the employer has no further obligation

55

Health Insurance Portability and Accountability Act (HIPAA)

- affects employer-sponsored group health plans
- does not require employees to provide health insurance, but it does establish requirements for those that do
- employers must give credit to employees for previous health coverage (including COBRA coverage) to decrease any waiting period before their coverage becomes effective
- restricts the manner in which employees collect,cuss, and disclose the health information of employees and their families
- employers must train employees, designate privacy officials, and distribute privacy notices to ensure that employees' health information is not disclosed to unauthorized parties
- failure to comply with HIPAA regulations can result in civil penalties of up to $100 per person per violation (with a cap of $25,000 per year)
- the employer is also subject to criminal prosecution for retain types of HIPAA violations and can face up to $250,000 in criminal fines and imprisonment for up to ten years if convicted

56

Affordable Care Act (ACA, commonly referred to as Obamacare)

- most employers with fifty or more full time employees are required to offer health insurance benefits
- there is no requirement to provide health benefits if fewer than fifty people are employed
- any business offering health benefits to its employees (even if not legally required to do so) may be eligible for tax credits of up to 35 percent to offset the costs
- an employer who fails to provide health benefits as required under the statute can be fined up to $2,000 for each employee after the first thirty people (known as the 50/30 rule : employers with fifty or more employees must provide insurance, and those failing to so so will fined for each employee after the first thirty)
- an employer who offers a plan that costs an employee more than 9.5 percent of the employee's income may receive a penalty of $3,000
- employers will be fined for failing to provide benefits only if one of their employees receives a federal subsidy to buy health insurance through a state health insurance exchange
- the act established state exchanges to provide a marketplace for business owners and individuals to compare premiums and purchase policies

57

Electronic Monitoring of Employees

- many employers review employees' email, blogs, instant messages, and tweets, as well as their social media, smartphone, and Internet use
- employers may also video their employees at work, record and listen to their telephone conversations and voice mail, and read their test messages and social media posts
- employees of private (nongovernment) employers have some privacy protection under tort law and state constitutions
- state and federal statutes may limit an employer's conduct in certain respects
- for instance, the Electronic Communications Privacy Act prohibits employers from intercepting an employee's personal electronic communications unless they are made on devices and systems furnished by the employer
- private employers generally are free to use filtering software to block access to certain web sites, such as sites on tainting sexually explicit images
- the First Amendment's protection of free speech prevents only government employers from restraining speech by blocking web sites

58

Lie Detector Tests

- Employee Polygraph Protection Act generally prohibits employers from requiring employees or job applicants to take lie detector tests or suggesting or requesting that they do so
- the act also restricts employers' ability to use or ask about e results of any lie detector test or to take any negative employment action based on the results
- certain employers are exempt from these prohibitions
- federal, state, and local government employers, and certain security service firms, may conduct polygraph tests
- in addition, companies that manufacture and distribute controlled substances may perform lie detector tests
- other employers may use polygraph tests when investigating losses attributable to theft, including embezzlement and the theft of trade secrets

59

Drug Testing

- Public Employers
- government (public) employers are constrain in drug testing by the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable searches and seizures
- drug testing of public employees is allowed by statute for transportation workers
- courts normally uphold drug testing of certain employees when drug use in a particular job may threaten public safety
- also when there is a reasonable basis for suspecting public employees of drug use, courts often find that drug testing does not violate the Fourth Amendment
- Private Employers
- the Fourth Amendment does not apply to drug testing conducted by private employers
- privacy rights and drug testing of private sector employees are governed by state law, which varies from state to state
- many states have statutes that allow drug testing by private employers but put restrictions on when and how the testing may be performed
- a collective bargaining agreement may also provide protection against (or authorize) drug testing
- the permissibility of a private employee's drug test often hinges on whether the employer's testing was reasonable
- random drug tests and even "zero-tolerance" policies (which deny a "second chance" to employees who test positive or drugs) have been held to be reasonable
- many workers at U.S. government facilities are employees of private contractors, not of the government
- until recently, these workers generally were not subject to the rug testing and background checks that are applied to federal government employees

60

Genetic Information Nondiscrimination Act (GINA)

- a serious privacy issue arose when some employers began conducting genetic testing of employees or prospective employees in an effort to identify individuals who might develop significant health problems in the future
- to prevent the improper use of genetic information by employers and health insurance providers, in 2008 Congress passed the Genetic Information Nondiscrimination Act (GINA)
- under GINA, employers cannot make decisions about hiring, firing, job placement, or promotion based on the results of genetic testing
- GINA also prohibits group health plans and insurers from denying coverage or charging higher premiums based solely on a genetic predisposition to develop a disease in the future

61

Immigration Reform and Control Act of 1986 (IRCA)

- provided amnesty to certain groups of aliens living illegally in the United States at the time
- it also established a system that sanctions employers that hire immigrants who lack work authorization
- makes it illegal to hire, recruit, or refer for a fee someone not authorized to work on this country
- through Immigration and Customs officers, the federal government conducts random compliance audits and engages in enforcement actions against employers who hire undocumented workers
- must complete I-9 verifications for new hires, including those hired as "contractors" and "day workers"
- the employer must declare, under pancetta of perjury, that an employee produced documents establishing his or her identity an legal employability
- acceptable documents include a U.S. passport establishing the person's citizenship or a document authorizing a foreign citizen to work in the United States, such as a permanent resident card or an Alien Registration Receipt

62

U. S. Immigration and Customs Enforcement (ICE)

- is the largest investigative arm of the U. S. Department of Homeland Security
- has a general inspection program that conducts random compliance audits
- government inspections include a review of an employer's file of I-9 forms, the government does not need a subpoena or a warrant to conduct such a search
- if an investigation reveals a possible violation, ICE will bring an administrative action and issue a Notice of Intent to Fine, which sets out the charges against the employer
- the employer has a right to a hearing on the enforcement action if it files a request within thirty days
- this hearing is conducted before an administrative law judge and the employer has a right to counsel and to discovery
- the typical defense in such actions is good faith or substantial compliance with the documentation provisions

63

Immigration Penalties

- an employer who violates the law by hiring an unauthorized worker is subject to substantial penalties
- the employer can be fined up to $2,200 for each unauthorized employee for a first offense, $5,000 per employee for a second offense, and up to $11,000 for subsequent offenses
- employers who have engaged in a "pattern or practice of violations" are subject to criminal penalties, which include additional fines and imprisonment for up to ten years and a company may also be barred from future government contracts
- in determining the penalty, ICE considers the seriousness of the violation (such as intentional falsification of documents) and the employer's past compliance
- ICE regulations also identify factors that will mitigate or aggravate the penalty under certain circumstances, such as whether the employer cooperated in the investigation or is a small business

64

The Immigration Act

- often, U.S. businesses find that they cannot hire sufficient domestic workers with specialized skills, for this reason, U.S. immigration laws have long made provisions for businesses to hire specially qualified foreign workers
- the Immigration Act of 1990 placed caps on the number of visas (entry permits) that can be issued to immigrants each year
- most temporary visas are set aside for workers who can be characterized as "persons of extraordinary ability," members of the professions holding advanced degrees, or other skilled workers and professionals
- to hire such an individual, an employer must submit a petition to U.S. Citizenship and Immigration Servies, which determines whether the job candidate meets the legal standards
- each visa is for a specific job, and there are legal limits on the employee's ability to switch jobs once he or she is in the United States
- a lawful permanent resident can prove his or her status to an employer by presenting an I-551 Alien Registration Receipt, known as a green card, or a properly stamped foreign passport
- many immigrants are not already self-authorized, and an employer that wishes to hire them can attempt to obtain labor certification, or green area, for them
- to gain authorization for hiring a foreign worker, the employer must show that no U.S worker is qualified, willing, and able to take the job
- approximately fifty thousand new green cards are issued each year
- a green card can be obtained only for a person who is being hired for a permanent, full time position (a separate authorization system provides for the temporary entry and hiring of nonimmigrant visa workers)
- the most common and controversial visa program today is the H-1B visa system
- to obtain an H-1B visa, the potential employee must be qualified in a "specialty occupation," which is defined as involving highly specialized knowledge and the attainment of a bachelor's or higher degree or its equivalent and can stay in the United States for three to six years and work only for the sponsoring employer

65

H-1B Visa Program

- the most common and controversial visa program today is the H-1B visa system
- to obtain an H-1B visa, the potential employee must be qualified in a "specialty occupation," which is defined as involving highly specialized knowledge and the attainment of a bachelor's or higher degree or its equivalent and can stay in the United States for three to six years and work only for the sponsoring employer
- the recipients of these visas include many high-tech workers, such as computer programmers and electronics specialists
- a maximum of sixty-five thousand H-1B visas are set aside each year or new immigrants
- that limit is typically reached within the first few few weeks of the year
- before submitting an H-1B application, an employer must file a Labor Certification application on a form known as ETA 9O35
- the employer must agree to provide a wage level at least equal to the wages offered to other individuals with similar experience and qualifications
- the employer must also show that the hiring will not adversely affect other workers similarly employed
- the employer is required to inform U.S. workers of the intent to hie a foreign worker by posting the form

66

H-2, O, L, and E Visas

- H-2 visas provide for workers performing agricultural labor of a seasonal nature
- O visas provide entry for persons who have "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim"
- L visas allow a company's foreign managers or executives to work inside the United States
- E visas permit the entry of certain foreign investors or entrepreneurs

67

Arizona vs. United States

- until 2010, immigration and the treatment of illegal immigrants were governed exclusively by federal laws
- then Arizona enacted a law that required Arizona law enforcement officials to identify, charge, and potentially deport immigrants living in Arizona who are there illegally
- the law required immigrants to carry their papers at all times and allowed police to check a person's immigration status during any law enforcement action
- the federal government, however, insisted that federal immigration laws preempt state legislation
- the United States Supreme Court ruled on the legality of the Arizona law in 2012 and upheld the controversial "show-me-your-papers" provision that requires police to heck the immigration status of persons stopped for another violating and all other provisions of Arizona's law were struck down braise they were preempted by federal laws
- the Supreme Court's decision does not prohibit states from enacting laws related to immigration, but it does set some limits
- states are prohibited from making it a crime for immigrants not to carry their registration documents or for those without work permits to seek employment
- states also cannot authorize law enforcement to arrest anyone based solely on a reasonable suspicion that the person is in the country illegally
- states can, however, require individuals to show documentation of their immigration status to law enforcement when requests to do so during a lawful stop for other reasons

68

Norris-Laguardia Act

- Congress protected peaceful strikes, picketing, and boycotts in 1932 in the Norris-Laguardia Act
- the statute restricted the power of federal courts to issue injunctions against unions engaged in peaceful strikes
- in effect, this act declared a national policy permitting employees to organize

69

National Labor Relations Act (NLRA)

- this act established the rights of employees to engage in collective bargaining and to strike
- the act also specifically defined the number of employer practices as unfair to labor :
1. Interference with the efforts of employees to form, join, or assist labor organizations or to engage in concerted activities for their mutual aid or protection.
2. An employer's domination of a labor organization or contribution of financial or other support to it.
3. Discrimination in the hiring of or the awarding of tenure to employees for the reason of union affiliation.
4. Discrimination against employees for filing charges under the act or giving testimony under the act.
5. Refusal to bargain collectively with the duly designated representative of the employees.
- employers and unions have a duty to bargain in good faith
- bargaining over certain subjects is mandatory, and a party's refusal to bargain over these subjects is an unfair labor practice that can be reported to the NLRB
- to be protected, an individual must be an employee or a job applicant
- the United States Supreme Court has held that individuals who are hired by a union to organization's a company (union organizers) are to be considered employees of the company for NLRA purposes

70

National Labor Relations Board (NLRB)

- created by NLRA to oversee union elections and to prevent employers from engaging in unfair labor practices
- has the authority to investigate employees' charges of unfair labor practices and to file complaints against employers in response to these charges
- when violations are found, the NLRB may issue a cease-and-desist order compelling the employer to stop engaging in the unfair practices
- cease-and-desist orders can be enforced by a federal appellate out of necessary
- after the NLRB rules on claims of unfair labor practices, it's decision maybe appealed to a federal court

71

Labor-Management Relations Act (LMRA or Taft-Hadley Act) of 1947

- was passed to proscribe certain unfair union practices, such as the closed shop (firm that requires Union membership as a condition of employment)
- although the act made the closed shop illegal, it preserved the legality of the union shop (firm that does not require Union membership as a prerequisite for employment, but can, and usually does, require that the workers join the union after a specified amount of time on the job)
- prohibited unions from refusing to bargain with employers, engaging in certain types of picketing, and featherbedding (causing employers to hire more employees than necessary)
- the act allowed individual states to pass their own right-to-work laws

72

Labor-Management Reporting and Disclosure Act (LMRDA)

- established an employee bill of rights and reporting requirements for union activities
- regulates unions' internal business procedures, including elections
- for instance, the LMRDA requires unions to hold regularly scheduled elections of officers using secret ballots
- former convicts are prohibited from holding Union office
- union officials are accountable for Union property and funds
- members have the right to attend and to participate in union meetings, to nominate officers, and to vote in most Union proceedings
- also outlawed hot-cargo agreements ( employees voluntarily agree with unions not to handle, use, or deal in goods of other employees produced by nonunion employees)
- holds Union officers to a high standard of responsibility and ethical conduct in administering the affairs of their union

73

Union Organization

- first step in organizing a union at a particular firm is to have the workers sign authorization cards (states that the worker desires to have a certain Union represent the workforce)
- if majority of workers sign authorization cards, the union organizers (unionized) present the cards to the employer and ask for formal recognition of the union
- the employer is not required to recognize the union at this point, but it may do so on a showing of majority support
- if the employer refuses to voluntarily recognize the union after a majority of workers sign authorization cards, the union organizers present the cards to the NLRB with a petition for an election
- if less than 50 percent of the workers sign the cards, the unionized may still petition for an election
- for an election to be held, they must demonstrate that at least 30 percent of the workers to be represented support a union or an election on unionization
- the proposed Union must represent an appropriate bargaining unit
- one key requirement to being an appropriate bargaining unit is a mutuality of interest among all the workers to be represented by the union
- factors considered in determining whether there is a mutuality of interest include the similarity of the jobs of all the workers to be unionized and their physical location
- if all of these requirements are met, an election is held and is supervised by the NLRB and ensures secret voting and voter eligibility
- if proposed Union receives majority support in fair election, the NLRB certifies the union as the bargaining representative for the employees
- many disputes between labor and management arise during union election campaigns
- generally, the employer has control over unionize get activities that take place on commonly property and during working hours
- the employer may limit the campaign activities of union supporters as long as the employer has a legitimate business reason for doing so
- the employer may also reasonably limit the times and places that union solicitation occurs, provided that the employer is not discriminating against the union

74

Collective Bargaining

- if the NLRB certifies the union, the union becomes the exclusive bargaining representative of the workers
- the central legal right of a union to engage in collective bargaining on the members' began (the process by which labor and management negotiate the terms and conditions of employment)
- wages, hours of work, and certain other conditions of employment may be discussed during collective bargaining sessions
- for instance, subjects for negotiations may include workplace safety, employee discounts, healthcare plans, pension funds, an apprentice and scholarship programs
- management does not need to bargain over a decision to shut down certain facilities, it must however, bargain over the economic consequences of this decision an thus, issues such as severance pay in the event of plant shutdown or rights of transfer to other plants are considered mandatory subjects of collective bargaining
- both the employer and the union must negotiate in good faith and make a reasonable effort to come to an agreement but they are not obligated to reach an agreement, but they must at least try to reach a compromise
- excessive delaying tactics may be proof of bad faith, as is insistence on obviously unreasonable contract terms
- the following actions constitute bad faith in bargaining :
1. Rejecting a proposal without offering a counterproposal.
2. Engaging in a campaign among workers to undermine the union.
3. Unilaterally changing wages or terms and conditions of employment during the bargaining process.
4. Constantly shifting positions on disputed contract terms.
5. Sending bargainers who lack authority to commit the company to a contract.
- if an employer (or a union) refuses to bargain in good faith without justification, it has committed an unfair labor practice, an the other party may petition the NLRB for an order requiring good faith bargaining

75

Strikes

- when extensive collective bargaining has been conducted and an impasse results, the union may call a strike against the employer to pressure it into making concessions
- workers typically picket the workplace, walking or standing outside the facility with signs stating their complaints
- striking workers lose their rights to be paid, and management loses production and may lose customers when orders cannot be filled
- the right to strike is guaranteed by the NLRA, within limits
- strike activities, such as picketing, are proceed by the free speech guarantee of the First Amendment of the U.S. Constitution
- persons who are not employees have a right to participate in picketing an employer
- NLRA gives workers the right to refuse to cross a likely line of fellow workers who are engaged in a lawful strike and employers are permitted to hire replacement workers to substitute for the striking workers
- in the following situations, the conduct of the strikers may cause the strikes to be illegal :
1. Violent strikes : the use of violence (including the threat of violence) against management employees or substitute workers is illegal.
2. Massed picketing : if the strikers form a barrier and deny management or other nonunion workers access to the plant, the strike is illegal.
3. Sit-down strikes : strikes in which employees simply stay in the plant without working are illegal.
4. No-strike clause : a strike may be illegal if it contravenes a no-strike clause that was in the previous collective bargaining agreement between the employer and the union.
5. Secondary boycotts: a secondary boycott is an illegal strike that is directed against someone other than the strikers' employer, such as the companies that sell materials to the employer
6. Wildcat strikes : a wildcat strike occurs when a small number of workers, perhaps dissatisfied with a union's representation, call their own strike. The union is the exclusive bargaining representative of the group of workers, and only the union can call a strike. Therefore, a wildcat strike, unauthorized by the certified Union, is illegal

76

Strikers' Rights After a Strike Ends

- in a typical economic strike, the employer has the right to hire permanent replacements during the strike
- the employer need not terminate the replacement workers when the strikers seek to return to work
- in other words, striking workers are not guaranteed the right to return to their jobs after the strike if satisfactory replacement workers have been found
- if the employer has not hired replacement workers to fill the strikers' positions, then the employer must rehire economic strikers to fill any vacancies
- employers may not discriminate against former economic strikers, and those who are rehired retain their seniority rights

77

Lockouts

- lockouts are the employer's counterpart to the workers' right to strike
- a lockout occurs when the employer shits down to prevent employees from working
- lockouts usually are used when the employer believes that a strike is imminent
- a lockout may be a legal employer response when a union and an employer have reached a stalemate in collective bargaining
- some lockouts are illegal
- an employer may not use a lockout as a tool to break the union and pressure employees into decertification
- an employer must be able to show some economic justification