B-LAW NOTES: EMPLOYMENT LAW PG 1315. I. 4 Main Types of Employment law: a. Discrimination b. Employee privacy c. Common Law d.

Claims for wrongful discharge Regulations of Business: Protecting the health, safety, and well Being of workers and their families 1. Workers Compensation 2. Occupational safety and health act 3. Family and medical leave act 1. Unemployment compensation 2. Social Security 3. ERISA 4. Fair Labor Standards Act 1. Labor Law 1. Equal Pay Act 2. Title VII 3. Age Discrimination in Emplyment Act 4. Americans with Disabilities Act 5. Other federal and state measures 1. Employee Polygraph Protection Act 2. Various restrictions on drug testing, searches, surveillance, improper use of records, unfair references. 1. Exceptions to employment at will

Protecting wages, pensions, and benefits Collective bargaining and union activity

Protecting Equal Opportunity

Protecting Employment Privacy

Enhancing job security II.

Legislation Protecting Employee Health, Safety, and Well-Being a. Workers Compensation i. Protects only employees, and NOT independent contractors. (some states exempt casual, agricultural, and domestic employees among others.) ii. States usually exempt certain employees- For example, firms employing fewer than a stated number of employees(often three). iii. Basic features shared by all where workers comp applies: 1. They allow injured employees to recover under strict liability. (removing any need to prove employer negligence).

2. They eliminate the traditional defenses such as: contributory negligence, assumption of risk, and the fellow-servant rule. 3. Workers comp is an employees exclusive remedy , exceptions to the rule are: where an employer intentionally injures an employee in which case the injured employee can sue outside of workers comp. iv. Recoveries 1. Hospital and medical expenses (including vocational rehab) 2. Disability benefits 3. Specified recoveries for the loss of certain body parts 4. Death benefits to survivors and/or dependents. v. Work Related Injury Requirements/conditions: 1. Arise out of the employment 2. Happen in the course of the employment vi. Tests to determine arising-out-of-the-employment relationship 1. Increased Risk test - the employee recovers only if the nature of her job increases her risk of injury above the risk to which the general public is exposed. Meaning, if a factory worker was assaulted by a trespasser he or she probably would not recover, whereas a security guard probably would. 2. Positional Risk test an injured employee recovers if her employment caused her to be at the place and time where her injury occurred. Here, the factory worker probably would recover. The Dulen case that follows seems to adopt this test. vii. determining in-the-course-of-employment: 1. inquires weather the injury occurred within the time, place and circumstances of the employment. 2. Employees injured off the employers premises generally are outside the course of the employment. 3. And employee may be covered where the off-thepremises injury occurred while she was performing employment-related duties such as going on a business trip or running an errand. b. The Occupational Safety and Health Act (OSHA). the most important measure directly regulating workplace safety.

i. Imposes a duty on employer to provide their employees with a workplace and jobs free from recognized hazards that may cause death or serious physical harm. ii. The US government, State govt and their political subdivisions are exempt from OSHA, they are protected by other legislation. c. The Family and Medical Leave Act the act covers those employed for at least 12 months and for 1250 hours during those 12 months, by an employer employing 50 or more employees. i. Covers federal and state and local govt agencies. ii. Emps. are entitled to a total of 12 workweeks of leave during any 12 month period for one or more of these reasons: 1. The birth of a child and the need to care for that child 2. The adoption of a child 3. The need to care for a spouse child, or parent with a serious health condition 4. The emplyees own serious health condition a. Usually the leave is without pay. III. Legislation Protecting Wages Pensions, and Benefits. a. Social Security i. Is financed by the FICA (Federal Insurance Contributions Act ). It imposes a flat % tax on all employee income below a certain base figure and requires emplyers t pay a matching amount. 1. Self-employed people pay a different rateon a different wage base. 2. Finances the Medicare system. b. Unemployment Compensation i. Funded by the federal and state unemployment tax. c. Employee Retirement Income Security Act (ERISA). i. Checks for abuses and protects employees expectations that promised pension benefits will be paid. ii. Imposes fiduciary duties on pension fund managers. For example, it requires that mangers diversify the plans investments to minimize the risk of large lasses, unless this is clearly imprudent. iii. Imposes record keeping, reporting, and disclosure requirements. For example, it requires that covered plans provide annual reports to their participants and specifies the contents of those reports. iv. The act has provision guaranteeing employee participation in the plan.

d. The Fair Labor Standards Act i. Regulates wages and hours by entitling covered employees to: 1. A specified minimum wage whose amount changes over time, and 2. A Time-and-a half rate for work exceeding 40 hours per week. 3. Forbids oppressive child labor by any employer engaged in interstate commerce or in the production of goods for such commerce, and 4. Forbids the interstate shipment of goods produced in an establishment where oppressive child labor occurs. a. Oppressive Child Labor includes: i. Most employment of children below the age of 14 ii. Employment of children aged 14-15, unless they work in an occupation specifically approved by the department of Labor iii. Employment of children aged 16-17 who work in occupations declared particularly hazardous by the Labor Department. 5. In case of a suit by the Labor Department terminates an employees right to sue, but the department pays the amounts it recovers to the employee. e. Collective Bargaining and Union Activity i. Railroad Labor Act 1926 regulates labor relations in the railroad industry, and later airlines. ii. LaGuardia Act of 1932 limited the circumstances in which federal courts could enjoin strikes and picketing in labor disputes, and also prohibited federal court enforcement of yellow-dog contracts. iii. National Labor Relations Act of 1935 (NLRA or Wagner Act, most important act) gave employees the right to organize by enabling them to form, join and assist labor organizations. It also allowed them to bargain collectively through their own representatives. In addition, it prohibited certain unfair labor practices that were believed to discourage collective bargaining. These practices include: 1. Interfering with employees rights to form, join, and assist labor unions; 2. Dominating or interfering with the formation or administration of a labor union, or giving a union financial or other support

3. Discriminating against employees in hiring, tenure, or any term of employment due to their union membership 4. Discriminating against employees because they have filed charges or given testimony under the NLRA and; 5. Refusing to bargain collectively with any duly designated employee representative iv. NLRA established the NLRB (National Labor Relations Board) 1. NLRB handles representation cases (which involve the process by which a union becomes the certified employee representative within a bargaining unit), and 2. Deciding weather challenged employer or union activity is an unfair labor practice. v. LMRA or Taft Hartley Act (An ammendement to NLRA)-