Chapter 24 Notes Flashcards
1
Q
- Common Law
- Statutory law
- Statutes and administrative agency regulations
A
Employment Law Sources
2
Q
A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.
- Not applied by Montana
A
Employment at Will
3
Q
- Exceptions based on contract theory
- Exceptions based on tort theory
- Exceptions based on public policy
A
Exceptions to the Employment-at-Will Doctrine
4
Q
Implied Contracts- If any 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.
- The employee’s reasonable expectations are the key to whether an employment manual creates an implied contractual obligation.
- Employer’s oral promises to employees regarding discharge policy may also be considered part of an implied contract.
- Judged by most courts by traditional contract standards.
A
Exceptions Based on Contract Theory
5
Q
- Abusive discharge procedures may result in a suit for intentional infliction of emotional distress or defamation.
- Fraud
A
Exceptions Based on Tort Theory
6
Q
The most common exception- made on the basis that the worker was fired for reasons that violate a fundamental public policy of the jurisdiction. Public policy involved must be expressed clearly in the jurisdiction’s statutory law.
- Whistleblowing- Whistleblower protection act of 1989
A
Exceptions Based on Public Policy
7
Q
An employee’s disclosure to government authorities, upper level managers, or the media that the employer is engaged in unsafe or illegal activities.
A
Whistleblowing
8
Q
An employer’s termination of an employee’s employment in violation of the law or an employment contract.
- Even if employer’s actions do not violate provisions in an employment contract or a statute, the employer may still be subject to liability under a common law doctrine, such as tort theory or agency.
- Employment contracts may be establsihed or modified via e-mail exchanges.
A
Wrongful Discharge
9
Q
- The Davis-Bacon Act
- The Walsh-Healey Act
- The Fair Labor Standards Act
- Worker Adjustment and Retraining Notification ACt
- Family and Medical Leave Act
A
Wages, Hours, Layoffs, and Leave
10
Q
Requires contractors and subcontractors working on federal government contruction projects to pay “prevailing wages” to their employees.
A
The Davis-Bacon Act
11
Q
Applies to U.S. government contracts. It requires that a minimum wage, as well as overtime pay 1.5 times regular pay rates, be paid to employees of manufacturers or suppliers entering into contracts with agencies of the federal government.
A
The Walsh-Healey Act
12
Q
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. As amended, provides the most comprehensive federal regulation of wages and hours today.
A
The Fair Labor Standards Act
13
Q
Gives workers advance notice of layoffs.
A
Worker Adjustment and Retraining Notification Act
14
Q
Gives employees a right to take time off work for family and medical reasons.
A
Family and Medical Leave Act
15
Q
FLSA prohibits oppressive child labor. Children under 14 years of age are allowed to do certain types of work, such as deliver newspapers, work for their parents, and be employed in entertainment and (with some exceptions) agriculture.
- Not allowed to hazardous conditions
- Restrictions on hours per day of work
- Ages of 16-18 working times and hours are not restricted.- cannot be employed in hazardous conditions.
- None of the restrictions apply to 18yrs+
A
Child Labor
16
Q
The lowest wage, either by government regulation or union contract, that an employer may pay an hourly worker.
A
Minimum Wage
17
Q
Minimum wage must be paid to employees in covered industries.
- Many states (and some cities) have minimum wages, when higher than federal, the employee is entitled to the higher wage.
- Employee that receives tips- if also paid minimum wage (at least federal), the FLSA allows employers to take the employee’s tips and redistribute them among other employees.
A
Minimum Wage Requirement
18
Q
- Employees working over 40 hours per week normally must be paid 1.5 times their regular pay for all hours worked over 40.
- Certain employees- administrative, professional, outside salespersons and computer programmers- exempt from FLSA’s overtime provisions.
A
Overtime Exemptions
19
Q
Those whose primary duty is management and who exercise discretion and independent judgement.
A
Administrative and Executive Employees
20
Q
Requires large employers to provide 60 days notice before implementing a mass layoff or closing a plant that employs more than 50 full-time workers. Applies to companies that employ at least 100 full-time employees.
- Intended to give workers advance notice so that they can start looking for new jobs while they are still employed and to alert state agencies so they can provide training and other resources for displaced workers.
- Notice to both employees and local government authorities.
A
Layoffs- The Worker Adjustment and Retraining Notification Act (WARN)
21
Q
Allows employees to take time off from work for family or medical reasons. Additional categories for military caregivers and for qualifying emergencies that arise due to military service.
- Employ 50 or more employees- up to 12 weeks of unpaid family or medical leave during any 12 month period. Expressly covers private and public (government) employees who have worked for their employers for at least a year.
- 26 weeks of leave- military caregiver leave within a 12 month period to care for a family member with a serious injury or illness incurred as a result of military duty.
A
Family and Medical Leave- The Family and Medical Leave Act (FMLA)
22
Q
- To care for a newborn baby within one year of birth.
- To care for an adopted or foster child within one year of the time the child is placed with the employee.
- To care for the employee’s spouse, child, or parent who has a serious health condition.
- If the employee suffers from a serious health condition and is unable to perform the essential functions of her or his job.
- For any qualifying exigency (nonmedical emergency) arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty.
A
Reasons for Leave Allowed
23
Q
- The employer must continue the worker’s health-care coverage on the same terms as if the employee had continued to work.
- On returning from leave, employees must be restored to their original position or to a comparable position.
- Exception- Key Employee- An employee whose pay falls within the top 10 percent of the firm’s workforce.
A
Benefits and Protections- FMLA Leave
24
Q
- Damages to compensate an employee for lost benefits, denied compensation, and actual monetary losses (such as the cost of providing the care of the family member) up to an amount equivalent to the employee’s wages for twelve weeks (twenty-six weeks for military caregiver leave).
- Job reinstatement.
- Promotion, if a promotion has been denied.
- Court costs and attorney’s fees
- Cases involving bad faith on the part of the employer- two times the amount of damages awared by a judge or jury.
A
Remedies to Violations- FMLA
25
Can also be held personally liable, as employers, for violations of the FLMA.
Supervisors
26
Generally are required to notify employees when an absence will be counted against leave authorized under the act. Failure to provide such notice will result in this person being sanctioned.
Employers
27
* The occupational safety and health act
* State workers' compensation laws
* Income security
Health, Safety, and Income Security
28
At the federal level, the primary legislation protecting employees' health and safety is this act, which is administered by the Occupational Safety and Health Administration (OSHA). This act imposes on employers a general duty to keep workplaces safe.
* Notices, records and reports
* Inspection and employee complaints
Occupational Safety and Health Act
29
* Requires that employers post certain notices in the workplace, perform prescribed record keeping, and submit specific reports.
* Employers with 11 or more employees required to keep occupational injury and illness records for each employee. Must be made available for inspection when required by an OSHA compliance officer.
* Employers must report directly to OSHA for injuries.
* When employees die or 3 or more employees are hospitalized, employer must notify OSHA within 8 hours. Failure to do so results in fines and prosecution under state law.
* Following the incident, a complete inspection of the premises is mandatory.
Notices, Records, and Reports
30
* OSHA compliance officers may enter and inspect facilities of any establishment covered the the act.
* Employees may file complaints and may not be fired by their employers for doing so.
* Employer cannot discharge an employee for refusing to work in high-risk areas if bodily harm or death might result.
Inspections and Employee Complaints
31
State statutes that establish an administrative process for compensating workers for injuries that arise in the course of their employment, regardless of fault.
* Domestic workers, agricultural workers, temporary employees, employees of common carriers are excluded.
* Minors are covered
* Private insurance companies or self insurance
* Requirements
* Worker's compensation vs Litigation
State Worker's Compensation Laws
32
1. The existence of an employment relationship.
2. An accidental injury that occured on the job in the course of employment, regardless of fault. (An injury that occurs while an employee is commuting to or from work is usually not considered to have occurred on the job or in the course of employment- not covered).
Requirements for Receiving Worker's Compensation
33
Must notify her or his employer promptly (usually within 30 days of the accident).
Injured Employee
34
Must file a worker's compensation claim with the appropriate state agency or board within a certain period (60 days to 2 years) from the time the injury is first noticed, rather than the time of the accident.
Employer of Injured Employee
35
An employee's acceptance of workers' compensation benefits bars the employee from suing for injuries caused by the employer's negligence.
* By baring lawsuits for negligence, these laws prevent employers from raising common law defenses to negligence, such as contributory negligene and assumption of risk.
* A worker may sue an employer who has intentionally injured the worker.
Worker's Compensation Versus Litigation
36
* Social security
* Medicare
* Tax contributions
* Private retirement plans
* Unemployment insurance
* COBRA
* Employer-sponsored group health plans
* Affordable care act
Income Security
37
Provides for old-age (retirement), survivors', and disability insurance. Often referred to as OASDI.
* Both employers and employees must contribute under the Federal Insurance Contributions Act to help pay for SS retirement benefits.
* Retired workers are eligible to recieve monthly payments from the Social Security Administration, which administers the Social Security Act.
* SS benefits are fixed by statute but increase automatically with increases in the cost of living.
Social Security
38
A federal government health-insurance program that is administered by the Social Security Administration for people 65 years of age and older and for some under the age of 65 who are disabled.
* Used to have 2 parts- hospital costs and other nonhospital costs
* Now offers additional coverage options and prescription-drug opetions and a prescription-drug plan.
* Hospital insurance can also obtain additional federal medical insurance by paying small monthly premiums, which increase as the cost of medical care increases.
Medicare
39
* Employer withholds the employee's FICA contributions from the employee's wages and ordinarily matches the contributions.
* Social Security- the basis for the contributions s the employee's annual wage base- the maximum amount of the employee's wages that is subject to the tax.
* Medicare tax rate- 2.9%- has no cap on the amount of wages subject to tax.
* SS and Medicare together- employer and employee pay 7.65%- 6.2% for SS and 1.45% for Medicare- up to the maximum wage base. Any earned income above 2.9% for Medicare
* Self-employed employees pay both sides
* Affordable care act- wages earned above 200,000 for single earners and wages above 250,000 for married couples.
Tax Contributions
40
Employee Retirement Income Security Act (ERISA). Empowers a branch of the US government of Labor to enforce its provisions governing employers that have private pension funds for their employees.
* Does not require an employer to establish a pension plan.
* Specific standards for an existing plan's management, including establishing rules on how funds must be invested and records kept.
Private Retirement Plans
41
An independent federal agency created by ERISA to provide timely and uninterrupted payment for voluntary private pension benefits.
* Pension plans pay annual insurance premiums (set rates adjusted to inflation) to the PBGC, which then pays benefits to participants in the event that the plan is unable to do so.
* Key provision- Vesting
Pension Benefit Guaranty Corporation (PBGC)
42
The creation of an absolute or conditional right or power.
* Gives an employee a legal right to recieve pension benefits at some future date when he or she stops working.
* Under ERISA, generally all employee contributions to pension plans vest immediately, and employee rights to employer contributions to a plan vest after 5 years of employment.
Vesting
43
Federal Unemployment Tax Act (FUTA)- created a state administered system that provides unemployment compensation to eligible individuals.
* Employers pay into a fund, and the proceeds are aid out to qualified unemployed workers.
* To qualify, a worker must be willing and able to work. Workers who have been fired for misconduct must be actively seeking employment to continue receiving benefits.
Unemployment Insurance
44
Enables workers to continue, for a limited time, their health-care coverage after they are no longer eligible for their employers' group health-insurance plans.
* Workers pay the premium (not employers)
* Prohibits an employer for eliminating a worker's medical, optical, or dental insurance when the worker's employment is terminated or when a reduction in the worker's hours would affect coverage.
* Termination of employment may be voluntary or involuntary, but workers fired for gross misconduct are excluded from protection.
* Employers (with some exceptions) must inform an employee of COBRA's provisions
* Employer that does not comply risks substantial penalties, such as a tax up to 10% of the annual cost of the group plan or $500,000, whichever is less.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
45
Contains provisions that affect employer-sponsored group health plans. Does not require employers to provide health insurance, but it does establish requirements for those that do.
* Strictly limits an employer's ability to exclude coverage for preexisting conditions.
* Restricts the manner in which employers collect, use, and disclose their health information of employees and their families.
* EMployers must designate privacy officials, distribute privacy notices, and train employees to ensure that employees' health information is not disclosed to unauthorized parties.
* Failure to comply- civil penalties of up to $100 per person per violation (cap of $25,000 per year). Subject to criminal prosecution for certain types of violations and can face up to $250,000 in criminal fines and imprisonment for up to 10 years if convicted.
Employer-Sponsored Group Health Plans- Health Insurance Portability and Accountability Act (HIPAA)
46
Requires most employers with 50 or more full-time employees to offer health-insurance benefits.
* Any company that offers benefits (even if not required to) pay credits of up to 35% to offset the costs.
* Employers 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.
Affordable Care Act (ACA)
47
Employers who fail to provide health benefits is required under the ADA statute to be fined $2,000 for each employee after the first thirty. (Employers with 50 employees is required to pay insurance).
50/30 Rule
48
* Electronic monitoring
* employee privacy protection
* reasonable expectation of privacy
* Other types of monitoring
* lie-detector tests
* drug testing
Employee Privacy Rights
49
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.
* 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.
* Filtering software- free to use by private employer
* Free speech prevents only goverment employers from restraining speech by blocking Web sites.
Electronic Monitoring- Employee Privacy Protection
50
Courts generally weigh the employer's interests against the employee's reasonable expectation of privacy.
* If informed of monitoring- cannot reasonably expect their communications to be private.
* Employer supplied email or blog- cannot reasonably expect communications to be private.
* If not informed- employers can be liable for violation of privacy
* Notifying employees does not always protect the employer from forms of communication not mentioned
Reasonable Expectation of Privacy
51
Generally prohibits employers from requiring or requesting that employees or job applicants take a lie-detector test. It also prevents employers from asking about the results of a polygraph or taking any negative employment action based on such results.
* Applies to most public employers (at least 2 employees, making $500,000), but not to public employers (federal, state, local government).
* Security service firms and companie that manufacture and distribute controlled substances are exempt.
* Other employers may use these tests when investigating losses attributable to theft, including embezzlement and theft of trade secrets.
Lie-Detector Tests- Employee Polygraph Protection Act (EPPA)
52
Contrained in drug testing by the Forth Ammendment of the US constitution, which prohibits unreasonable searches and seizures.
* Allowed by statute for transportation workers and is normally upheld by the courts when drug use in a job may threaten public safety.
* Reasonable basis for suspecting drug use- does not violate the 4th ammendment.
Drug Testing- Public Employers
53
The 4th ammendment does not apply for this type of employer.
* governed by state law, which varies widely
* Collective bargaining agreement- may provide protection against drug testing
* Hinges on whether the employer's testing was reasonable.
* Random drug tests and zero-tolerance policies (deny a second change to positive result holders) have been held to be reasonable.
Drug Testing- Private Employers
54
* Immigration reform and control act (IRCA)
* Immigration Act
* State Immigration Legislation
Immigration Law
55
Provided amnesty to certain groups of illegal aliens living in the United States at the time. It also established a system that sanctions employers who hire immigrants lacking work authorization. Makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in this country.
* employment verification
* documentation requirements
* enforcement
* penalties
Immigration Reform and Control Act (IRCA)
56
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.
Employment Verification
57
The process of verifying the employment eligibility and identity of a new worker. It must be completed within three days after the worker commences employment.
* 3 day period is to allow the employer to check the form's accuracy and to review and verify documents establishing the prospective woker's identity and eligibility for employing in the US.
I-9 Verification
58
The employer must declare, under penalty of perjury, that an employee produced documents establishing his or her identity and legal employability.
* US passport is acceptable, as well as a Permanent resident card, and Alien Registration Receipt.
* Most legal actions for violations of I-9 rules are due to false documentation or information. Employee can be fired and risk deportation.
* Employers must be honest, if they "should have known" they have violated the rules.
Documentation Requirements
59
The largest investigative arm of the US Department of Homeland Security. His a general inspection program that conducts random compliance audits. Other audits occur if the agency recieves a written complaint alleging an employer's violations.
* Inspection includes review of I-9 files
* Administrative action with intent to find- if possible violation is found, sets out the charges against the employer.
* Employer has a right to a hearing on the enforcement action if request is filed within 30 days. before an ALJ and employer has a right to counsel and discovery.
* Good faith and substantial compliance is typical defense.
Enforcement- US Immigration and Customs Enforcement (ICE)
60
* $2,200 for each unauthorized employee for a first offense
* $5,000 per employee for second offense
* $11,000 for subsequent offenses
* "pattern of practice of violations"- subject to criminal penalties, which include additional fines and imprisonment for up to 10 years. May be barred from government contracts.
* ICE considers the seriousness of the violations, the employers past compliance, and cooperation with authorities during investigation.
Penalties
61
Placed caps on the number of visas (entry permits) that can be issued to immigrants each year, including employment-based visas.
* Employment visas can be permanent or temporary.
The Immigration Act
62
A document that shows that a foreign-born individual can legally work in the United States.
* lawful permanent resident, only for a person being hired for a permanent, full-time position.
* Employer must show that no US worker is qualified, willing, and able to take the job.
* US applicants who meet the qualifications must be interviewed for the position.
* Employer must be able to show that the qualifications required for the job are a business necessity.
Alien Registration Receipts (Green Card)
63
The most common and controversial temporary visa program today. The potential employee must be qualified in a "specialty occupation," meaning the individual has highly specialized knowledge and has attained a bachelor's degree of its equivalent.
* can stay in the US for 3-6 years only for the sponsoring employer.
* 65,000 maximum set aside each year for new immigrants.
* Must first file a Labor Certification application (ETA 9035)
* wages offered must be equal to other individuals with similar experience and qualifications.
* Employer is required to notify US employees by posting the form.
* Department of labor review- may reject for omissions and inaccuracies.
The H-1B Visa Program
64
Other specialty temporary visas available for other categories of H2 visas provide for workers performing agricultural labor of a seasonal nature.
H2, O, L, and E Visas
65
Provide entry for persons who have "extraordinary ability in the sciences, arts, education, business or athelitics which has been demonstrated by sustained national or international acclaim."
O Visas
66
Allow a company's foreign managers or executives to work inside the United States.
L Visas
67
Permit entry of certain foreign investors and entrepreneurs.
E Visas
68
Exclusively governed by federal laws.
* Except Arizona, those asshats.
* Arizona v. United States- courts upheld the "show me your papers" provision when stopped for another violation, all other provisions were struck down.
State Immigration Legislation
69
* Federal labor laws
* Union organization
* Collective bargaining
* Strikes
* Lockouts
Labor Unions
70
First law enacted in 1932. 4 Major Federal Statutes:
1. Norris-LaGuardia Act
2. National labor relations act
3. Labor-management relations act
4. Labor-management reporting and disclosure act
Federal Labor Laws
71
In 1932, Congress protected peaceful strikes, picketing, and boycotts in this act. Restricted the power of federal courts to issue injunctions against unions engaged in peaceful strikes. Established a national policy permitting employees to organize.
Norris LaGuarida Act
72
Established the rights of employees to engage in collective bargaining and to strike. Specifically defined a number of employer practices as unfair to labor:
1. Interference with the efforts of employees to form, join, or assist labor organizations or not to engage in concerted activities for 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 awarding of tenure to employees based on union affilation.
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.
National Labor Relations Act
73
Created by NLRA to oversee union elections and to prevent employers from engaging in unfair and illegal union activities and unfair labor practices.
* Has authority to investigate employee's charges of unfair labor practices and to file complaints against employers in response to charges.
* May issue cease-and-desist orders compelling the employer to stop unfair practices
* can be enforced by federal appellate court
* After NLRB rules on claims of unfair labor practices, its decision may be appealed to a federal court.
The National Labor Relations Board (NLRB)
74
Bargaining over certain subjects (wages, hours, and benefits) is mandatory, and a party's refusal to bargain over these subjects is unfair labor practice that can be reported to the NLRB.
Good Faith Bargaining
75
An individual must be an employee, as that term is defined in statute. Courts have long held that job applicants fall within the definition. Individuals who are hired by a union to organize a company are to be considered employees of the company for NLRA purposes.
Workers Protected by NLRA
76
Proscribes certain unfair union practices, such as closed shop.
* Preserved legality of union shop
* Prohibited unions from refusing to bargain with employers, engaging in certain types of picketing, and featherbedding.
* Allowed individual states to pass their own right to work laws.
Labor-Management Relations Act (LMRA, Taft-Hartley Act)
77
A firm that requires union membership by its workers as a condition of employment.
Closed Shop
78
A firm that requires all workers, once employed, to become union members within a specified time period as a condition of their continued employment.
Union Shop
79
A state law providing that employees may not be required to join a union as a condition of retaining employment.
Right-to-Work Law
80
Established that employee bill of rights and reporting requirements for union activities. Also outlawed hot-cargo agreements.
* Strictly regulates unions' internal business procedures, including union elections.
* regularly scheduled, secret ballots
* ex-convicts cannot hold office
* Union officials are accountable for union property and funds.
* Members have a right to attend and participate in union meetings, nominate officers, and vote
* Holds union officers to a high standard of responsibility and ethical conduct in administering affairs of their union.
Labor-Management Reporting and Disclosure Act (LMRDA)
81
An illegal agreement in which employers voluntarily agree with unions not to handle, use, or deal in the nonunion-produced goods of other employers.
Hot-Cargo Agreement
82
* authorization card
* Union elections
* Union election campaigns
Union Organization
83
A card signed by an employee that gives a union permission to act on his or her behalf in negotiations wtih management.
* Employer is not required to recognize the union at this point in the process, but may do so.
Authorization Card
84
If the employer does not voluntarily recognize the union- or if less than majority of the workers sign authorization cards- the union organizers present the cards to the NLRB with a petition for an election.
* Unionizers must demonstrate that at least 30% of the workers to be represented support a union or an election on unionization.
* Once received, NLRB determines if election should be conducted.
Union Elections
85
* Must be represented by proposed union. Not every group of workers can form a single union.
* Key requirement is mutality of interest among all the workers to be represented by the union.
* Factors considered for mutality of interest is similarity of the jobs of all the workers to be unionized and their physical location.
Appropriate Bargaining Unit
86
Significantly reduced the time between the filing of a petition and the ensuing election- average of 38 days to as little as 10 days.
* Favors unions- gives employers less time
* Pre-election hearing within 8 days after it receives a peititon
* Statement of position- company submits one day before hearing that lays out every argument it intends to make against the union.
* once held, election can be scheduled right away.
New NLRB Rules Expedite Elections
87
If election is to be held, NLRB supervises the election and ensures secret voting and voter eligibility. If the proposed union recieves a majority support in a fair election, the NLRB certifies the union as the bargaining representative for the employees.
Voting
88
* Employer has control over unionizing activities that take place on company property during working hours.- limit campaigning activities for legitimate business reason.
* Employer may reasonably limit the times and places that union solicitation occurs so long as the employer is not discriminating
* Employer may campaign among workers against the union- NLRB monitor and regulates tactics
* If employer issued threats or other unfair practices- NLRB can certify the union even though it lost the election or order a new election.
Union Election Campaigns
89
The process by which labor and management negotiate the terms and conditions of employment, including working hours and workplace conditions.
* After certified, union becomes the eclusive bargaining representative of the workers.
* Must negotitate in good faith and make reasonable effort to come to an agreement. (not obligated to reach agreement).
* Party's actions may be used to evaluate the party's good or bad faith.
Collective Bargaining
90
An action undertaken by unionized workers when collective bargaining fails. The workers leave their jobs, refuse to work, and (typically) picket the employer's workplace.
* Management loses product and may lose customers
* Striking workers lose their right to be paid
* Regulated by labor law
Strikes
91
Guaranteed by the NLRA, within limits. Certain strike activities, such as picketing, are protected by the free speech guarantee of the First Amendment of the US Constitution.
* Nonworkers have a right to picket
* Workers have a right to refuse to cross a picket line of fellow workers
* Strkers are not allowed to use violence (or threaten to use violence) or prevent others from entering a facility.
* May be illegal if it contravenes a no-strike clause that was in the previous collective bargaining agreement between the employer and the union.
The Right to Strike
92
* The employer has a right to hire permanent replacements during the strike.
* Need not terminate replacement workers when the economic strikers seek to return to work. (not guaranteed to return to their jobs)
* If no replacements hired- employer must rehire the economic strikers to fill any vacancies.
* Employers may not discriminate against former economic strikers.
* Those rehired retain senority rights.
After a Strike Ends
93
An action in which an employer shuts down to prevent employees from working, typically because it cannot reach a collective bargaining agreement with the employees' union.
Lockouts
