Name: ______Keith LeBlanc______
Week 9Study Guide: Chapters18 & 24
Instructor’s Note: Please utilize and complete this study guide as you read these chapters. The questions are listed in the order in which the material appears in the chapters.You can type your answers directly into this Study Guide or type them into a separate Word document. If you would prefer to handwrite it, you may handwrite it and scan and email your handwritten answers to me. Once you have completed it, I would encourage you to use it when completing weekly Quiz that covers the week’s material! Additionally, please email me a copy of your Week 9Study Guide and complete the weekly Quiz by 11:59PM on Sunday, July 26, 2015 at 11:59PM. The subject line of your email MUST read “Your Name – Business Law – Week 9 Study Guide”. This week’s Study Guide will be worth 40points.
Chapter 18 – Employment Law
We have covered the ways in which various kinds of conduct in the marketplace can lead businesses to run afoul of the law. This chapter covers the laws that businesses must consider when dealing with their treatment of potential and current employees.
Compliance with the employment laws that we will discuss in this chapter is important for businesses. Failure to comply with these laws has lead to multi-million dollar judgments against businesses. Although the major cases that make headlines often tend to involve large multinational corporations, small businesses can face lawsuits alleging potential violations of these laws as well. In addition to financial damages, lawsuits involving alleging violations of employment law can also stir up damaging publicity that may drive some buyers to patronize other businesses and potential employees to pursue other employment opportunities.
Needless to say, familiarity with employment law is essential for any current or aspiring entrepreneur or manager. This chapter will provide you with a general overview of some of the most important employment laws, and I hope that your learning experience this week will equip you with the knowledge that you need to ensure that your businesses and organizations fully comply with the law!
Please describe the common law employment-at-will doctrine. Who has the right to terminate the employment relationship and when do they have the right to terminate it?
Is the employment-at-will doctrine still widely used?
Yes, in all of the United States except Montana.
Please list the three general types of exceptions to the employment-at-will doctrine:
=Contract theory
=Tort Theory
=Public Policy
Please describe the contract theory exception to the employment-at-will doctrine:
If evidence points to an implied employment contract (written or verbal), then employer discharging an employee might be examined for breach of contract.
Please describe the tort theory exception to the employment-at-will doctrine:
In cases where evidence supports statutory application of discrimination law, or where employer actions may be classed defamatory or otherwise harmful, this theory can come into use.
Please describe the public policy exception to the employment-at-will doctrine:
Applicable where the employer termination of an employee is linked to a violation of public policy (replacement with a non-citizen, termination for refusal to act in some illegal manner).
What is a whistleblower? What laws allow them to receive protection from wrongful termination?
Basically a “whistleblower” brings evidence of wrongdoing by an employer (public or private) to an oversight government agency. Such parties are protected against termination for this action under the federal Whistleblower Protection Act of 1989 and applicable state legislation.
What is wrongful discharge?
Termination by an employer in violation of one of the exceptions to employment at will. It might be under implied or actual contract, tort or public policy exceptions.
What does the Davis-Bacon Act require?
Payment of “prevailing wages” to employees under any construction contract for a federal agency. The federal government states the required wages.
What does the Walsh-Healey Act require?
This act established the policy of requiring “minimum wages” and “overtime” payment of 1.5 minimum for all contracts with federal agencies.
What types of workers are covered by the Fair Labor Standards Act?
All employees engaged in interstate commerce, or goods produced for interstate commerce, and certain other situations. The Walsh-Healey act was thus extended to this group.
With regards to child labor, what does the Fair Labor Standards Act prohibit? What does it require for children between the ages of 16-18?
The law prohibits “oppressive” child labor, limits the work children to age 18 can perform. For the group 16-18, work that is clearly hazardous or otherwise potentially damaging to the child’s well-being is prohibited.
With regards to wages and hours, what does the Fair Labor Standards Act require?
The Act requires on a national basis a minimum wage (currently $7.25 per hour, adjusted from time to time). States may legislate higher (but not lower) minimum wages, and if higher, this schedule prevails. Work that is compensated via some combination of hourly and tip income is permitted but the calculated hourly minimum must at least equal the statutory federal or state-enacted wage.
TRUE or FALSE: The Fair Labor Standards Act requires that all employees who work more than 40 hours per week be paid overtime.
True.
Who is exempt from the Fair Labor Standards Act’s overtime requirements?
Classes of employees concentrated in “white collar” occupations – professional, technical, scientific. Termed “exempt” employees.
How does an employee qualify as an “administrative employee” for purposes of the Fair Labor Standards Act?
The employee must be paid a salary, not an hourly wage. The work must be classified as generally related to management. The work must involve some discretion in regards to decisions in the workplace.
How does an employee qualify as an “executive employee” for purposes of the Fair Labor Standards Act?
The employee must have primary duties as a manager, such duties actually consisting of management responsibilities.
With regards to layoffs, what does the Worker Adjustment and Retraining Notification Act (WARN Act) require? How does it define a “mass layoff”?
TRUE or FALSE: The WARN Act only applies to employers with 50 or more full-time employees
True but the “more than 50 employees” or a “mass layoff” (more than 1/3 of the total at that location) is a layoff at one plant location – and the employer as a whole must employ 100 full-time employees to have to comply.
What is the purpose of the WARN Act?
This Act provides for a necessary period in which employees caught in the layoff can seek new employment; and agencies working with employment issues can be ready to respond.
TRUE or FALSE: With regards to layoffs, state laws provide additional protection to workers
True.
What is the purpose of the Family and Medical Leave Act (FMLA)?
Multiple purpose: one, to permit employees with family needs that conflict with the job and require absences; two, to permit employees whose personal medical condition calls for time away from the job.
To which employers does the FMLA apply?
All employees of private and public employers – with a minimum of one year full employment in that situation.
Please identify and describe the two types of leave that are available under FMLA:
Family Leave which is designed to provide time off for the employee who has immediate requirements to care for a newborn or foster child. Medical Leave which provides permits time off for an employee’s immediate family members’ personal health conditions. States add their own variations of this employee benefit.
What must employers do upon an employee’s return to the workplace after their FMLA leave time has concluded?
Return the employee to a comparable position and with comparable pay very close to what the employee’s status was before the leave. The highest-paid employees in the organization may not be able to ask for this return status.
What consequences can be imposed upon employers who violate FMLA?
The employer faces liability for monetary damages, including a variety of recompense payments (lost wages, costs associated with the leave, legal expenses). Involuntary job reinstatement is a common requirement. A promotion, if it is evident that the employee was denied same simply due to the leave taken.
What is the primary federal law that governs workplace health and safety?
The Occupational Safety and Health Act (1970).
What does OSHA require employers to do?
Provide for an all-around safe working environment. Refrain from sanctions against employees who call out unsafe conditions and/or refuse to work because of concern about safety conditions.
Please describe the OSHA reporting requirements:
OSHA calls for multiple reports from employers, including maintenance of workforce records of injuries on the job, illness caused by the work environment, deaths, and actions to eliminate discovered points of danger on premises.
Please describe the powers that OSHA compliance officers are given under OSHA:
These representatives of the agency (and their counterparts at the state level) have the right to inspect the premises of employers on a regular basis, and to immediately inspect in the case of any death or serious injury on site. In addition, these agents monitor the continuous OSHA reports required of the employers.
What is the purpose of workers’ compensation laws?
To provide a process whereby employees injured on the job can collect benefits without having to file against the employer. With public agencies controlling the funds, there are safeguards against bankruptcy of an employer, etc. that would otherwise provide no financial protection for the injured worker.
What are the two requirements that must be satisfied in order to receive benefits under state workers’ compensation laws?
=The existence of a valid employment agreement.
=The injury must have occurred while actively on the job.
What are the two requirements that workers must satisfy in order to collect workers’ compensation?
=Timely notification of the accident to the employer.
=Filing the appropriate claim with the local/state offices that process workmen’s comp claims.
What is the major federal law that provides income security to workers?
The Social Security Act (1935). The funds are often referred to as OASDI. Payments made both by employer and employees are referred to as FICA taxes.
What groups of individuals receive protection under the Social Security Act?
Persons eligible due to age, disability, or as survivors of the insured.
What is the purpose of Medicare?
Medicare was established to provide for a comprehensive and uniform national program of health care support for the elderly. Costs are paid to providers (doctors, hospitals, pharma) with a combination of insured co-payments and federal funds.
What law governs private pension plans? What does this law require of employers who decide to offer pensions?
ERISA – the Employment Retirement Income Security Act of 1974.
Employers who establish employee pension plans must have a written plan for the application of employee and employer contributions, for terms that cover qualification and amount of pension payout at retirement, and for vesting.
What law created unemployment insurance?
The Federal Unemployment Tax Act (FUTA – another of the New Deal alphabet agencies).
What eligibility requirements must a worker fulfill in order to successfully obtain unemployment insurance?
Generally, the applicant must be “available and willing to work”. Recent years have seen a dramatic reduction in the requirements to draw unemployment benefits. This is a sore spot between conservative employers (who fund the program for the most part) and workers at large who have suffered from the extended recession in the past decade.
With regards to health care, what does COBRA prohibit employers from doing?
COBRA prevents employers from denying any health care coverage upon leaving their employment. The terminated employee can remain with the existing health care insurance provider for a stipulated time.
TRUE or FALSE: The employer covers the costs associated with COBRA.
The employee pays all of the COBRA premium and co-pays under the plan. It is typically an expensive multiple of the previous contribution from the employee.
What employees are not covered by COBRA?
Only employees discharged for cause can be excluded from extension of coverage under COBRA.
What law regulates employers who opt to provide health insurance to their employees?
The Health Insurance Portability and Accountability Act (HIPAA) of 1996. It regulates among other things the coverage employers (and their insuring partners) offer, and the privacy of employee records concerning health and illness.
TRUE or FALSE: More than half of employers admit engaging in surveillance of their employees
True.
What types of surveillance and monitoring do employers utilize?
Real time performance monitoring with audio and video equipment; monitoring of computer usage, file content, traditional document and digital communications.
Who are the only types of employers that cannot block Web sites because of the First Amendment’s protections of freedom of speech?
Government agencies. In recent years there have been multiple incidents of public employees using provided workplace equipment to gain and use internet access improperly. Only the worst (porn site visits, for example) are treated as serious. Security concerns are on the road to establishing much tighter control, however.
What does the Electronic Communications Privacy Act (ECPA) prohibit?
Basically the act prohibits electronic spying on private communications via telecomm and related services. However, it does not prohibit spying on all activity in a workplace setting where the electronics are provided by the organization.
What types of communications are excluded from coverage under the ECPA?
Organizations vary considerably in their treatment of personal privacy. Generally, personal communications (one’s cell phone, a tablet) are not available for interception by employers. However an employee can grant (and may have to grant in an employment agreement) the employer the right to move into these personal areas as well. More, not less, electronic spying appears to be the future.
What law governs access of stored information?
The Stored Communications Act – part of the ECPA.
In general, are employers allowed to engage in drug testing of employees?
Yes, as long as the rationale for testing and the process used are reasonable. Actual rules and regulations vary by state.
TRUE or FALSE: Courts have upheld the legality of “zero-tolerance” drug policies that allow a worker to be terminated if they have one positive test for drugs.
True.
What are the two main laws that govern immigration in America?
The Immigration Reform and Control Act of 1986 and the Immigration Act.
What actions are made illegal by the Immigration Reform and Control Act?
It is illegal to hire, recruit or refer to another for employment purposes any illegal alien.
What must employers do in order to comply with the IRCA? Please describe this process.
Work within the process called for in the Employment Verification (E-Verify) or I-9 program. This involves examining the documents provided by anyone seeking employment to prove US citizenship. Theoretically there are sanctions for employers for non-compliance. In reality, the I-9 regulations are enforced in a haphazard manner as are so many other aspects of immigration law in the country at this time.
What agency is in charge of enforcement of immigration laws?
By statute, the Immigration and Customs Enforcement section the Department of Homeland Security. In reality, much of the immigration law on the books is being ignored under the current Administration.
What are the penalties that can be imposed on businesses who hire an unauthorized alien?
They range from a cap of $2,200 per individual violation to $11,000 for repeated violations. There are criminal charges that can be brought against proven employer fraud in meeting the terms of the E-Verify legislation.
For which classification are most temporary visas under The Immigration Act reserved?
The H-1B Class, strongly supported by the technology industries throughout the country.
What does it mean when a noncitizen worker is “self-authorized”?
The alien worker must have permanent resident status (evidenced by possession of the famous “carte verde” or green card), or a special permission called a Temporary Special Employment documented status.
What must an employer show in order to gain authorization for hiring a foreign worker?
First, that there is no qualified able and willing US citizen available to fill the position. In this era of sustained high unemployment nationally, it is obvious that the employer looking for scientists will have an easier time with this requirement than a basic meat and poultry processing plant operator.