Clarkson14e - PPT - ch34 Skip Employment Immigration Labor Law

BUSINESS LAW
TEXT AND CASES

Fourteenth Edition
CLARKSON MILLER CROSS 

 

CHAPTER 34: EMPLOYMENT,

IMMIGRATION, AND LABOR
LAW
© 2018 Cengage. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
§1: EMPLOYMENT AT WILL (1 OF 7)
 Employment relationships have
historically been governed by
common law doctrine of
“employment at will.”
 Either party may terminate at any time for
any reason, unless contract provides to the
contrary. 
2
EMPLOYMENT AT WILL (2 OF 7)
 Common Law Exceptions to the
Employment-at-Will Doctrine:
 Exceptions Based on Contract Theory: Some
courts hold that an implied employment
contract exists between employer and
employee. 
3
 Exceptions Based on Contract Theory: If the
employee is fired outside the terms of the
implied contract, she/he may succeed in an
action for breach of contract even though no
written contract exists. 
4
Exceptions Based on Tort Theory:
 Discharge of an employee may give rise to
an action for wrongful discharge under
tort theories.
 Abusive discharge procedures may result
in a lawsuit for intentional infliction of
emotional distress or defamation.  5
 Exceptions Based on Public Policy: Most
common exception to the 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. 
6
 Exceptions Based on Public Policy: Generally,
courts require that the public policy involved be
expressed clearly in the statutory law governing
the jurisdiction.
 This exception may apply to an employee
discharged for whistleblowing.
 SEE CASE IN POINT 34.3 WADDELL V. BOYCE
THOMPSON INSTITUTE FOR PLANT RESEARCH, INC.
(2012).
7
 Wrongful Discharge: When 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 discharge.
 Even if employer’s actions do not violate any
express employment contract or statute,
liability may still attach based on tort theory or 8
§2: WAGES, HOURS, AND LAYOFFS (1 OF
13)
 In the 1930s, Congress enacted several laws

to regulate the wages and working hours of
employees including:
Davis-Bacon Act: Requires contractors and
subcontractors working on federal
government construction projects to pay
“prevailing wages” to their employees. 
9
WAGES, HOURS, AND LAYOFFS (2 OF 13)
Walsh-Healey Act: Applies to U.S.
government contracts and requires that a
minimum wage—and 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. 
10
Fair Labor Standards Act (FLSA): Extended
wage hour requirements to cover all
employers engaged in interstate
commerce or in producing goods for
interstate commerce.
• The FLSA (as amended) provides the
most comprehensive federal regulation
of wages and hours today.
11
 Child Labor:
The FLSA prohibits oppressive child labor.
Children under fourteen years of age can
do only certain types of work.
Children aged fourteen and fifteen are
allowed to work, but not in hazardous
occupations. 
12
 Child Labor:
There are also restrictions on how many
hours per day and per week that these
age groups 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.
13
 Minimum Wages: FLSA provides that a
minimum wage of $7.25 per hour must be
paid to covered nonexempt employees.
Most states also have minimum wages, with
more than half setting theirs above the
federal minimum wage.
When the state minimum wage is greater
than the federal minimum wage, the
employee is entitled to the higher wage.
14
 Tipped Workers: When an employee
receives tips while on the job, the FLSA
gives employers a tip credit toward the
minimum wage amount.
The employer is required to pay only
$2.13 an hour in direct wages—if that
amount, plus the tips received, equals at
least the federal minimum wage. 
15
 Tipped Workers:
If an employee’s tips and direct wages do
not equal the federal minimum wage, the
employer must make up the difference.
If employers pay at least the federal
minimum wage, the FLSA allows them to
take employee tips and make other
arrangements for their distribution.
16
 Overtime Provisions and Exemptions:
Under the FLSA, any employee who works
more than forty hours per week must be
paid no less than 1.5 times the regular pay
for all hours worked over forty.
• FLSA overtime provisions apply only after
an employee has worked more than
forty hours per week. 
17
Certain employees are exempt from the
FLSA’s overtime provisions including
executive, administrative, professional
employees, outside salespersons, and
those who create computer code. 
18
Employers can voluntarily pay overtime to
ineligible employees but cannot waive or
reduce the overtime requirements of the
FLSA.
In 2016, the Department of Labor updated
its overtime regulations to allow millions
more employees to receive overtime pay.
19
 Layoffs: The Worker Adjustment and
Retraining Notification (WARN) Act applies
to employers with one hundred full-time
employees.
The act requires these employers to
provide sixty days’ notice before
implementing a mass layoff or closing a
plant that employs more than fifty full-
time workers. 
20
 Layoffs:
The WARN Act gives workers advance notice
so that they can look for new jobs while still
employed. The act alerts state agencies so
that they can provide training and other
resources for displaced workers.
An employer that violates the WARN Act
can be fined up to $500 for each day of the
violation.
21
§3: FAMILY AND MEDICAL LEAVE (1 OF 5)
 The Family and Medical Leave Act (FMLA)
allows employees to take time off work for
family or medical reasons or in certain
situations that arise from military service.
 The FMLA does not supersede any state or
local law that provides more generous

protection. 
22
FAMILY AND MEDICAL LEAVE (2 OF 5)
 Coverage and Application: The FMLA
requires employers with over fifty
employees to provide up to twelve weeks
of unpaid leave to employees who need to
care for a spouse, child, or parent suffering
with a serious medical condition.
It also covers certain situations that arise
from military service. 
23
 Coverage and Application:
An employee may take military caregiver
leave to care for a family member with a
serious injury/illness incurred from
military duty.
The employee may take up to twenty-six
weeks of leave within a twelve-month
period for military caregiver leave. 
24
 Benefits and Protections:
Employer must continue worker’s health
care on same terms.
Employees must be restored to their
original (or comparable) position (with
nearly equivalent pay and benefits)
unless they are “key” employees. 
25
 Violations: An employer that violates the
FMLA can be required to provide remedies
including:
Damages to compensate the employee for
lost wages and benefits, denied
compensation, and actual monetary losses.
Job reinstatement.
Promotion (if one has been denied).
26
§4: HEALTH, SAFETY, AND INCOME
SECURITY (1 OF 30)
 The Occupational Safety and Health Act:
OSHA is the fundamental federal law aimed
toward safety in the workplace.
Enforcement is by OSHA, NIOSH, and the
OSHRC.
OSHA has established specific safety
standards that employers must follow,
depending on the industry. 
27
HEALTH, SAFETY, AND
INCOME SECURITY (2 OF 30)
Notices, Records, and Reports: The act
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 records for
each employee.  28
HEALTH, SAFETY, AND
Notices, Records, and Reports:
• Whenever a work-related injury or disease
occurs, employers must make reports
directly to OSHA.
Inspections: OSHA compliance officers may
enter and inspect the facilities of any
establishment covered by the Occupational
Safety and Health Act.  29
HEALTH, SAFETY, AND
Inspections:
• Employees may 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. 30
HEALTH, SAFETY, AND
 State Workers’ Compensation Laws:
Establish administrative procedures for
compensating workers injured on the job.
Instead of suing for injuries, a worker is
compensated.
All states require employers to provide
workers’ compensation insurance, but
the specific rules vary by state. 
31
HEALTH, SAFETY, AND
Most states have a state fund that employers
pay into for workers’ compensation coverage.
No state covers all employees under its
workers’ compensation statute. Domestic
workers, agricultural workers, temporary
employees, and employees of common
carriers are usually excluded. Minors are
covered. 
32
HEALTH, SAFETY, AND
Requirements for Receiving Workers’
Compensation: In general, the only
requirements to recover benefits are:
• The existence of an employment
relationship.
• An accidental injury that occurred on the
job or in the course of employment,
regardless of fault. 
33
HEALTH, SAFETY, AND
Workers’ Compensation versus Litigation:
If an employee accepts workers’
compensation benefits, she/he may not
sue for injuries caused by the employer’s
negligence. However, a worker may sue an
employer who intentionally injures the
worker.
34
HEALTH, SAFETY, AND
 Income Security:
Social Security: The Social Security Act (or
OASDI) provides for old-age (retirement),
survivors’, and disability insurance.
Retired workers who are covered by
Social Security receive fixed monthly
payments from the Social Security
Administration. 
35
HEALTH, SAFETY, AND
Medicare: A federal government health
insurance program administered by the
Social Security Administration for people
sixty-five years of age and older and for
some under age sixty-five who are
disabled. 
36
HEALTH, SAFETY, AND
Tax Contributions: Under the Federal
Insurance Contributions Act (FICA), both
employers and employees contribute to
Social Security and Medicare, although
the contributions are determined
differently. 
37
HEALTH, SAFETY, AND
Tax Contributions:
• The basis for Social Security contribu-
tions is the employee’s annual
(maximum) wage base.
• As of 2016, the maximum amount
subject to the tax was $118,500, and the
tax rate was 12.4 percent. 
38
HEALTH, SAFETY, AND
• The Medicare tax rate is 2.9 percent.
• Medicare has no cap on the amount of
wages subject to the tax. 
39
HEALTH, SAFETY, AND
• For both Social Security and Medicare,
typically the employer and the
employee each pay 7.65 percent. Any
earned income above that threshold is
taxed only for Medicare. 
40
HEALTH, SAFETY, AND
• Self-employed persons pay both the
employer’s and the employee’s portions
of the Social Security and Medicare
taxes. 
41
HEALTH, SAFETY, AND
• Under the Affordable Care Act, high-
income earners are subject to an
additional Medicare tax of 3.8 percent on
most investment income.
• This additional tax applies to wage earners
making more than $200,000 (single) or
more than $250,000 (married couples).
42
HEALTH, SAFETY, AND
Private Retirement Plans: The Employee
Retirement Income Security Act (ERISA)
empowers a branch of the U.S.
Department of Labor to enforce its
provisions governing employers that
have private pension funds for their
employees. 
43
HEALTH, SAFETY, AND
Private Retirement Plans:
• ERISA does not require an employer to
establish a pension plan but when a plan
exists, ERISA provides standards for its
management. 
44
HEALTH, SAFETY, AND
Private Retirement Plans:
• A key provision of ERISA is vesting, which
gives an employee a legal right to receive
pension benefits when she or he stops
working. Generally, all employee
contributions to pension plans vest
immediately while employer contributions
vest after five years of employment.
45
HEALTH, SAFETY, AND
Unemployment Insurance: The Federal
Unemployment Tax Act (FUTA) created
a state-administered system that
provides unemployment compensation
to eligible individuals who have lost
their jobs. 
46
HEALTH, SAFETY, AND
Unemployment Insurance:
• Employers that fall under the provisions
of the act pay unemployment taxes at
regular intervals. The proceeds from
these taxes are then paid out to
qualified unemployed workers. 
47
HEALTH, SAFETY, AND
Unemployment Insurance:
• To be eligible for unemployment
compensation, a worker must be willing
and able to work.
• Workers who have been fired for
misconduct or who voluntarily left their
jobs are not eligible for benefits.
48
HEALTH, SAFETY, AND
COBRA: The Consolidated Omnibus
Budget Reconciliation Act (COBRA)
enables employees to continue their
health-care coverage for a limited time
after they are no longer eligible for
group health-insurance plans. 
49
HEALTH, SAFETY, AND
COBRA:
• Termination of employment may be
voluntary or involuntary. Only workers
fired for gross misconduct are excluded
from protection.
• Workers (not employers) pay the
premiums for the continued coverage. 
50
HEALTH, SAFETY, AND
COBRA:
• If the worker chooses COBRA coverage, the
employer is obligated to keep the policy
active for up to eighteen months (twenty-
nine months if the worker is disabled).
• Coverage must be the same as that
provided to the worker prior to the
termination or reduction of work.
51
HEALTH, SAFETY, AND
Employer-Sponsored Group Health Plans:
The Health Insurance Portability and
Accountability Act (HIPAA) restricts the
manner in which employers collect, use,
and disclose the health information of
employees and their families. 
52
HEALTH, SAFETY, AND
Employer-Sponsored Group Health Plans:
Employers must designate privacy officials,
distribute privacy notices, and train
employees to ensure that employees’ health
information is not disclosed to unauthorized
parties.
HIPAA violations are subject to fines and
criminal prosecution.
53
HEALTH, SAFETY, AND
Affordable Care Act (Obamacare): The act
requires most employers with fifty or
more full-time employees to offer health-
insurance benefits. Under the act, any
business offering health benefits to its
employees may be eligible for tax credits
of up to 35 percent to offset the costs. 
54
HEALTH, SAFETY, AND
Affordable Care Act (Obamacare):
• “50/30” Rule: 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. 
55
HEALTH, SAFETY, AND
Affordable Care Act (Obamacare):
• An employer who offers a plan that costs
an employee more than 9.5 percent of
the employee’s income may be assessed
a penalty.
56
§5: EMPLOYEE PRIVACY RIGHTS (1 OF 11)
 Electronic Monitoring: More than half of
employers use some sort of electronic
monitoring of employees.
Employee Privacy Protection: Employees
of private employers have some privacy
protection under tort law and state
constitutions. 
57
EMPLOYEE PRIVACY RIGHTS (2 OF 11)
 Electronic Monitoring:
Employee Privacy Protection: State and
federal statutes may also limit an
employer’s conduct in certain respects
but employers still have considerable
leeway to monitor employees in the
workplace. 
58
Reasonable Expectation of Privacy:
• Normally, if employees have been
informed that their communications
are being monitored, they cannot
reasonably expect those interactions to
be private. 
59
 Reasonable Expectation of Privacy:
• Courts typically hold that employees do not
have a reasonable expectation of privacy when
using an employer-provided communication
system (such as e-mail).
• If employees are not informed that certain
communications are being monitored, the
employer may be held liable for privacy
invasion.  60
 Other Types of Monitoring: In addition to
monitoring online activities, employers
engage in other types of employee
screening and monitoring. Some practices
have often been challenged as violations
of employee privacy rights. 
61
 Other Types of Monitoring:
 Lie-Detector Tests: The Employee Polygraph
Protection Act generally prohibits employers
from requiring, suggesting, or requesting
employees and job applicants to take lie-
detector tests.
 The act also restricts employers’ ability to use
or ask about any lie-detector test results or to
take negative employment action based on the
results.  62
Lie-Detector Tests: Certain employers are
exempt from these prohibitions including
government employers at all levels,
certain security service firms, and
companies that manufacture and
distribute controlled substances.
63
 Drug Testing: Many employers require their
employees to submit to drug testing in the
interests of public safety and to reduce
unnecessary costs.
• Public Employers: Government (public)
employers are constrained in drug testing by
the Fourth Amendment to the U.S.
Constitution. 
64
Drug Testing:
• Public Employers: Testing is allowed by
statute for transportation workers. Courts
normally uphold testing of certain
employees when drug use in a certain job
may threaten public safety OR when there
is a reasonable basis for suspecting the
employees of drug use.
65
Drug Testing:
• Private Employers: The Fourth
Amendment does not apply to drug
testing conducted by private employers.
Many states have statutes that allow drug
testing by private employers but restrict
when and how the testing may be
performed. 
66
Drug Testing:
• Private Employers: The permissibility of

testing a private employee for drugs
often hinges on whether the employer’s
testing was reasonable. Random drug
tests and even “zero-tolerance” policies
have been held to be reasonable.
 SEE CASE NASA V. NELSON (2011).
67
§6: IMMIGRATION LAW (1 OF 13)
 Immigration Reform and Control Act (IRCA):
Makes it illegal to hire, recruit, or refer for a
fee someone not authorized to work in the
United States.
I-9 Employment Verification: 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. 
68
IMMIGRATION LAW (2 OF 13)
Documentation Requirements: The
employer must declare, under penalty of
perjury, that an employee produced
documents establishing his or her identity
and legal employability. 
69
Enforcement: U.S. Immigration and
Customs Enforcement (ICE) is the largest
investigative arm of the U.S. Department of
Homeland Security.
ICE has a general inspection program that
conducts random compliance audits.
Government inspections include a review of
an employer’s file of I-9 forms. 
70
Penalties: An 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.
71
 The Immigration Act:
I-551 Alien Registration Receipts:
Companies can only hire a noncitizen
worker that is self-authorized (be a lawful
permanent resident or have a valid
temporary Employment Authorization
Document). 
72
I-551 Alien Registration Receipts: A
lawful permanent resident can prove his
or her status to an employer via an I-551
Alien Registration Receipt, known as a
green card, or a properly stamped
foreign passport. 
73
I-551 Alien Registration Receipts: To gain
authorization for hiring a foreign worker,
an employer must show that no U.S.
worker is qualified, willing, and able to
take the job.
Any U.S. applicants who meet the stated
job qualifications must be interviewed for
the position.
74
 The H-1B Visa Program: To get an H-1B visa,
the potential employee must be qualified in a
“specialty occupation”, i.e., the individual has
highly specialized knowledge and has attained
a bachelor’s or higher degree or its equivalent.
 Individuals with H-1B visas can stay in the
United States for three to six years and can
work only for the sponsoring employer. 
75
The H-1B Visa Program: Critics of this visa
program believe that sometimes employers
use it to replace American workers with
lower-paid foreign labor.
Labor Certification: An employer who
wants to submit an H-1B application must
file a Labor Certification application (a form
also known as ETA 9035). 
76
H-2, O, L, and E Visas:
• H-2 Visas: Provide entry for 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.” 
77
H-2, O, L, and E Visas:
• 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.
78
 State Immigration Legislation:
Arizona “Show Me Your Papers” statute
was upheld by U.S. Supreme Court.
Many other states have enacted
immigration legislation since that
decision. 
79
 State Immigration Legislation:
The Court’s decision sets limits:
• States may not make it a crime to fail to
carry documentation.
• States also cannot authorize law
enforcement to arrest anyone based
solely on a reasonable suspicion that
the person is in the country illegally.
80
§7: LABOR UNIONS (1 OF 33)
 In the 1930s, Congress enacted the first of
several labor laws that protected employees’
rights to join labor unions, to bargain with
management over the terms and conditions
of employment, and to conduct strikes.
 Laws were initially concerned with protecting
the rights and interests of workers.
 Subsequent legislation placed some restraints
on unions and granted rights to employers.
81
LABOR UNIONS (2 OF 33)
 Federal Labor Laws:
Norris-LaGuardia Act: The Norris-
LaGuardia Act protects peaceful
strikes by limiting the injunction
powers of federal courts.
• This act effectively declared a
national policy permitting employees
to organize. 
82
National Labor Relations Act: The 1935
National Labor Relations Act (NLRA)
established the rights of employees to
engage in collective bargaining and to strike.
• Unfair Labor Practices: The NLRA
specifically defined a number of employer
practices as unfair to labor: 
83
National Labor Relations Act:
• Unfair Labor Practices:
 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. 
84
 An employer’s domination of a labor
organization or contribution of financial or
other support to it.
 Discrimination in the hiring of or the
awarding of tenure to employees for
reason of union affiliation.  85
 Discrimination against employees for filing
charges under the act or giving testimony
under the act.
 Refusal to bargain collectively with the duly
designated representative of the
employees.  86
• The National Labor Relations Board: The
NLRA created the National Labor
Relations Board (NLRB) to oversee union
elections and to prevent employers from
engaging in unfair and illegal union
activities and unfair labor practices. 
87
• The National Labor Relations Board:
The NLRB has the authority to investigate
employees’ charges of unfair labor
practices and to file complaints against
employers in response to these
charges. 
88
• The National Labor Relations Board:
 The NLRB may issue a cease-and-desist
order compelling the employer to stop
engaging in the unfair practices. Such
orders can be enforced by a federal
appellate court if necessary. 
89
• Good Faith Bargaining: Under the NLRA,
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. 
90
• Workers Protected by the NLRA: To be
protected under the NLRA, an individual
must be an employee or a job applicant.
Individuals who are hired by a union to
organize a company (union organizers)
are also to be considered employees of
the company for NLRA purposes.
91
 Labor-Management Relations Act:
• The Labor Management Relations Act (LMRA
or Taft-Hartley Act) of 1947 was passed to
prohibit certain unfair union practices such
as the closed shop (a firm that requires union
membership as a condition of employ-
ment). 
92
Labor-Management Relations Act:
• The LMRA prohibited unions from refusing
to bargain with employers, engaging in
certain types of picketing, and
featherbedding. 
93
Labor-Management Relations Act:
• The act also allowed individual states to
pass right-to-work laws that make it illegal
for union membership to be required for
continued employment in any
establishment.
94
Labor-Management Reporting and
Disclosure Act: The Labor-Management
Reporting and Disclosure Act (LMRDA)
established an employee bill of rights
and reporting requirements for union
activities. 
95
Labor-Management Reporting and
Disclosure Act: The act also outlawed hot-
cargo agreements, in which employers
voluntarily agree with unions not to
handle, use, or deal in goods of other
employers produced by nonunion
employees. It also strictly regulated unions’
internal business procedures. 96
 Union Organization: The first step in
organizing a union at a particular firm is
usually to have the workers sign
authorization cards.
If a majority of workers sign
authorization cards, the union organizers
(unionizers) present the cards to the
employer and ask for formal recognition
of the 97
 Union Organization:
The employer is not required to
recognize the union at this point in the
process, but it may do so voluntarily on a
showing of majority support.
98
 Union Elections: If the employer refuses to
voluntarily recognize the union (or if less than a
majority of the workers sign authorization
cards), the organizers can petition for an
election.
• The organizers present the authorization
cards to the NLRB with a petition to hold an
election on unionization. 
99
 Union Elections: For an election to be held, at
least 30 percent of the workers must be
represented that support a union or an election.
• Appropriate Bargaining Unit: The proposed
union must represent an appropriate
bargaining unit. One key requirement is a
mutuality of interest among all the workers to
be represented by the union. 
100
Union Elections:
• New NLRB Rules Expedite Elections: New
NLRB rules that took effect in 2015
significantly reduce the time between the
filing of a petition and the ensuing
election. 
101
Union Elections:
• Voting: If an election is held, the NLRB
supervises the election and ensures secret
voting and voter eligibility. If the proposed
union receives majority support in a fair
election, the NLRB certifies the union as
the bargaining representative for the
employees. 102
Union Election Campaigns: Generally, the
employer has control over unionizing
activities that take place on company
property and during working hours.
• The employer may limit the campaign
activities of union supporters if there is a
legitimate business reason for doing so.
103
 If the NLRB certifies the union, the union
becomes the exclusive bargaining
representative of the workers.
 Collective bargaining is the process by which
labor and management negotiate the terms
and conditions of employment. It allows the
representatives elected by union members to
speak on behalf of the members at the
bargaining table. 
104
 Collective Bargaining:
Terms and Conditions of Employment:
Wages, hours of work, and certain other
conditions of employment may be discussed
during collective bargaining sessions.
Good Faith Bargaining:
• An employer and a union must negotiate in
good faith and make a reasonable effort to
come to an agreement.  105
 Collective Bargaining:
Good Faith Bargaining:
• The bargaining process itself must be
geared to reaching a compromise—not
avoiding a compromise.
• If an employer (or a union) refuses to
bargain in good faith without justification,
it has committed an unfair labor practice.
106
 Strikes: When an impasse results from
extensive collective bargaining, the union
may call a strike against the employer to
pressure it into making concessions.
 In a strike, the unionized employees leave
their jobs and refuse to work. The workers
also typically picket the workplace. 
107
 Strikes:
Striking workers lose their rights to be paid.
Management loses production and may lose
customers when orders cannot be filled.
Labor law regulates the circumstances and
conduct of strikes.
Most strikes take the form of “economic
strikes,” which are initiated because the
union wants a better contract. 108
 Strikes:
The Right to Strike:
• The right to strike is guaranteed by the NLRA
(within limits).
• Persons who are not employees have a right
to participate in picketing an employer.
• The NLRA also gives workers the right to
refuse to cross a picket line of fellow workers
engaged in a lawful strike.  109
 Strikes:
The Right to Strike:
• Employers are permitted to hire
replacement workers to substitute for the
striking workers.
Illegal Strikes: In the following situations, the
strikers’ conduct may cause the strikes to be
illegal: 
110
 Strikes:
Illegal Strikes:
• Violent strikes.
• Massed picketing.
• Sit-down strikes.
• No-strike clause.
• Secondary boycotts.
• Wildcat strikes.
111
 Strikes:
After a Strike Ends: In a typical strike, the
employer has a right to hire permanent
replacements during the strike.
• The employer does not need to
terminate the replacement workers
when the economic strikers seek to
return to work. 
112
 Lockouts: A lockout occurs when the
employer shuts down to prevent employees
from working. Lockouts are usually used
when employer believes a strike is imminent.
An employer may not use a lockout as a
tool to break the union and pressure
employees into decertification (occurs
when union members vote to dissociate
from the union).
113

Clarkson14e - PPT - ch34 Skip Employment Immigration Labor Law

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Clarkson14e - PPT - ch34 Skip Employment Immigration Labor Law

Uploaded by

Copyright:

Available Formats

BUSINESS LAW

TEXT AND CASES

CLARKSON MILLER CROSS 

CHAPTER 34: EMPLOYMENT,

 In the 1930s, Congress enacted several laws

local law that provides more generous

• Private Employers: The permissibility of

You might also like