I Chapter 23 Employment and Immigration Law A Employment at Will 1 Either party may terminate the employment relationship at any time and for any reason unless doing so would violate the provisions of an employment contract 2 Exceptions a Based on Contract Theory if employee is fired outside the terms of the implied contract i Implied employment contract exists between employer and employee b Based on Tort Theory abusive discharge procedures may result in a suit for intentional infliction of emotional distress defamation or fraud c Based on Public Policy when an employer fires a worker for reasons that violate a fundamental public policy of the jurisdiction Exception is i Whistleblowing when an employee tells government authorities upper level managers or the press that their employer is engaged in unsafe or illegal activity 3 Wrongful Discharge when an employee is fired in violation of the employment contract B Wage and Hour Laws 2 Child Labor 1 Fair Labor Standards Act FSLA 1938 wage hour requirements covering all employers engaged in interstate commerce or in the production of goods for interstate commerce a Children under 14 can do work such as deliver newspapers work for parents etc b Children 14 15 can work but not in hazardous occupations also restrictions on how c Children 16 18 can work but not in hazardous occupations no restrictions on how much much they can work they can work d Age 18 and up no restrictions 3 Wages and Hours a Minimum wage i Wage includes reasonable cost of the employer in furnishing employees with board lodging and other facilitates if they are customarily furnished by the employer b Overtime employees who work more than 40 hours per week must be paid 1 5 times their regular pay for all hours over 40 4 Overtime Exemptions certain employees executive administrative and professional employees whose primary duty is management a Mims v Starbucks Corp i Was management the employee s primary duty ii Yes Primary duty is what the employee dues that is of principal value to the employer not the collateral tasks that they may also perform even if it consumes more than half their time Determining factors are a The relative importance of managerial duties compared to other duties b The frequency with which the employee makes discretionary decisions c The employee s relative freedom from supervision d The relationship between the employee s salary and the wages paid to employees who preform relevant non exempt work C Labor Unions 1 Norris LaGuardia Act 1932 protection of peaceful strikes picketing and boycotts Establishes a national policy permitting employees to organize 2 National Labor Relations Act NLRA 1935 established the rights of employees to engage in collective bargaining and to strike a National Labor Relations Board NLRB established to ensure employees rights would be protected They have the authority to investigate employee s charges of unfair labor practices and to file complaints against employers in response to these charges i Cease and desist order orders compelling employers to stop engaging in unfair practices b Also specifically defined employer practices as unfair to labor i Interference with employee efforts to form join or assist labor organizations or with employee efforts to engage in concerted activities for their mutual aid or protection ii An employer s domination of a labor organization or contribution of financial or iii Discrimination in the hiring or awarding of tenure to employees based on union iv Discrimination against employees for filing charges under the act or giving testimony v Refusal to bargain collectively with the duly designated representative of the other support to it affiliation under the act employees 3 Labor Management Relations Act LMRA 1947 proscribe certain unfair union practices such as the closed shop Prohibited unions from refusing to bargain with employers engaging in certain types of picketing and featherbedding causing employers to hire more employees than necessary a Closed shop requires union membership by its workers as a condition of employment b Union shop does not require membership as a prerequisite for employment but can require that workers join the union after a specified amount of time on the job i Right to work laws make it illegal for union membership to be required for continued employment in an establishment 4 Labor Management Reporting and Disclosure Act LMRDA 1959 established an employee bill of rights and reporting requirements for union activities Also outlawed a Hot cargo agreements when employers voluntarily agree with unions not to handle use or deal in goods produced by nonunion employees working for other employers b Secondary boycotts all such boycotts D Worker Health and Safety 1 The Occupational Safety and Health Act 1970 primary legislation protecting employees health and safety Requires employers to meet standards and keep the workplace safe a Enforcement agencies i The Occupational Safety and Health Administration OSHA has the authority to promulgate standards make inspections and enforce the act ii The National Institute for Occupational Safety and Health conducts research on safety and health problems and recommends standards for OSHA to adopt E Income Security 1 Social Security iii The Occupational Safety and Health Review Commission handle appeals from actions taken by OSHA b Procedure and violations i OSHA officers may inspect facilities of any covered establishment ii Employees cannot be fired for filing a complaint or in good faith refuses to work in a high risk area if harm or death may reasonably result iii Employers with 11 or more employees must keep injury and illness records iv Whenever an employee is killed or 5 or more employees are hospitalized as a result of one accident OSHA must be notified 2 State Workers Compensation Laws establish an administrative procedure for compensating workers injured on the job a Requirements for Receiving Workers Compensation i The injury was accidental and occurred on the job or in the course of employment regardless of fault b Workers Compensation versus Litigation i An employee s acceptance of workers compensation bars then from suing for injuries caused by the employer s negligence a If the employer intentionally hurts the employee they may sue a Social Security Act 1935 provides for old age retirement survivors and disability insurance Both employers and employees must contribute under the Federal Insurance Contributions