Employment Law

a Quickstudy Digital Law Reference

John Sanchez

• Publisher: QuickStudy Reference Guides
• Year: 2019
• ISBN:
  9781423243267
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Essential core of employment law in a digital guide. Authored and designed to understand the significance of details within the larger scheme of the law and to review before the Bar Exam. Review for exams, find facts fast, refresh memory, or constantly reinforce your knowledge base. With the mass of knowledge needed for a law degree and for practicing, a trusted reference source is rarely found at this price that works so well. Lamination ensures the guide will last a lifetime through school and beyond. Law students, lawyers and paralegals have agreed QuickStudy law guides are a must-have.
digital guide includes:

• Labor Issues: Fair Practices & Employee Safety & Protection
  • Fair Labor Standards Act
  • Employee Polygraph Protection Act
  • National Labor Relations Act
  • Occupational Safety & Health Act
  • Federal Unemployment Compensation Act
  • Worker Adjustment & Retraining Notification Act
  • Workers' Compensation
  • Social Security Disability
  • Whistleblower Statutes
  • Termination of Employment
• Health Issues: Benefits & Rights
  • Comprehensive Omnibus Budget Reconciliation Act
  • Health Insurance Portability & Accountability Act
  • Family Medicine Leave Act
• Fair Treatment & Protected Classes
  • Discrimination
  • Immigration Reform & Control Act
  • Veterans' Preference Laws
• Public Sector: Specific Rules & Regulations
• Retirement Issues
  • Employee Retirement Income Security Act
  • Old Age Security Pension Benefits
  • Retiree Health Care
• Employer Protection
  • Employment Related Torts
  • Bankruptcy

Labor Issues: Fair Practices & Employee Safety & Protection

Fair Labor Standards Act (FLSA)
[29 U.S.C. §§201–219]

Covers both public and private sectors; weak preemptive effect on state laws

• Coverage
  1. All employers engaged in commerce [§203(s); U.S. v. Darby]
  2. Factors: Dollar volume of business for some
  3. Extension to public sector upheld [Garcia v. San Antonio]
     1. All public hospitals, schools, and public agencies are covered
     2. Compensatory time off in lieu of overtime at time-and-one-half rate
  4. States’ 11th A. immunity from suits for money damages [Alden v. ME]
  5. Definition of employee: Any individual employed by an employer [§203(e)(1)]; economic reality test [Rutherford Food Corp. v. McComb]:
     1. Employer’s right to control manner in which work is performed
     2. Employee’s opportunity for loss or profit
     3. Employee’s investment in equipment
     4. Special skills
     5. Permanence of working relationship
     6. Whether work performed is an integral part of employer’s business
  6. Workers who are not covered are independent contractors and prisoners (not per se excluded)
• Subjects not covered by FLSA
  1. Vacation, holiday, severance, or sick pay
  2. Meal or rest breaks and premium pay for weekend or holiday work
  3. The number of hours in a day or days in a week an employee may have to work (assuming worker is 16 or older)
• Minimum wage and overtime standards [§§201–219]
  1. Identify employees’ workweek and gross amount of pay
  2. Calculate number of hours worked during that week
  3. Split gross pay into 3 parts: nonwage items (e.g., bonuses) [§7(e) (1)–(3b)]; premium pay [§7(e)(5)–(7)]; and basic straight-time pay
  4. For employees paid monthly or semimonthly, multiply monthly pay by 12 (or semimonthly by 24) and divide the result by 52
• Exemptions from overtime pay
  1. Seasonal workers, babysitters, and some journalists
  2. Five exempt categories, as of 2004 regulations [29 C.F.R. §541]: Executive, administrative (but police, firefighters, and emergency medical technicians continue to get overtime), professional, com­puter, and outside sales; pharmaceutical sales representatives are FLSA exempt as outside salesmen [Christopher v. SmithKline Beecham Corp.]; service advisors are not covered by exemption overrules [Encino Motorcars, LLC f. Navaro]
  3. Three-part test for exempt status: Salary limit test ($23,660 per year are nonexempt; over $100,000 are presumptively exempt), salary basis test, and duties test
• Compensable hours
  1. Time spent on key job duties plus incidental duties integral to job; time spent undergoing security screenings is not compen­sable [Integrity Staffing Solutions v. Busk]
  2. Portal-to-Portal Act excludes preliminary and postliminary (waiting to be engaged) activity; 2010 labor regulation states time spent don­ning and doffing protective equipment compensable
  3. Postdonning and predoffing walking time is compensable [IBP, Inc. v. Alvarez]; experts can show hours worked donning and doffing in FLSA class action suits [Tyson Foods, Inc. v. Bouaphakeo]; time spent donning and doffing protective gear is not compensable where collective bargaining agreement so provides [Sandifer v. United States Steel Corp.]
  4. Meal times over 2 hours are noncompensable; employers must afford working mothers reasonable break time to express breast milk for 1 year after child’s birth [§4207 of the Patient Protection and Affordable Care Act (PPACA)]
  5. Commuting time is noncompensable
• Child labor [§213(c)]
  1. Waiver: 10- and 11-year-olds may work as hand harvesters to pick short-season crops (8 weeks per year)
  2. Must be 16 years old to work in most nonfarm jobs.
  3. Must be 18 years old to work in hazardous jobs
  4. Exceptions: Children employed by parents in agriculture and as actors and newspaper deliverers
• Enforcement
  1. Secretary of labor may bring action for civil liability, money fines for child labor violations, and injunction
  2. One or more employees may seek civil damages
  3. Department of Justice: Actions for criminal penalties
  4. Statute of limitations:
     1. Two years for nonwillful violations
     2. Three years for willful violations: Employer knew or showed reckless disregard as to whether act violated FLSA; same definition of “willful” applies to Age Discrimination in Employment Act (ADEA) and Equal Pay Act (EPA) [McLaughlin v. Richland Shoe Co.]
• Retaliation: Oral complaint is protected conduct under antiretaliation provision [Kasten v. Saint-Gobain Performance Plastics Corp.]

Employee Polygraph Protection Act (EPPA)
[29 U.S.C. §§2001–2009]

• Coverage
  1. Bars most private employers from using lie detectors either for preemployment screening or during the course of employment [§2001(3)]
  2. Covers all employers engaged in commerce [§2002]
• Prohibits employers from [§2002]:
  1. Causing any employee or applicant to take a lie detector test
  2. Using such test results in any way
  3. Discharging, discriminating against, or disciplining any employee or applicant on basis of such test or for refusal to take such test
  4. Disciplining any employee for exercising any EPPA rights
• Exemptions [§2006(a)]
  1. All public-sector employers are exempt
  2. Federal government permitted to test private-sector employees who have access to classified information
  3. Federal testing of any contractor of Departments of Defense or Energy allowed
  4. Testing of members of intelligence services allowed
  5. Federal testing of FBI contractors allowed
  6. Private employers conducting ongoing investigation involving economic loss or injury allowed (e.g., theft, embezzlement), but employer cannot randomly test to see if thefts have occurred [29 C.F.R. §801.12]
  7. Private employers involved in security services allowed to test applicants [§2006(e)]
  8. Testing allowed when drugs are involved [§2006(f)]
• Penalties [§2005(a)(1)]
  1. Up to $10,000 for each violation
  2. Employee remedies: Legal or equitable relief; being hired, reinstated, or promoted; lost wages and benefits; and costs and attorneys’ fees
• Statute of limitations is 3 years [§2009]
• Preemption: Any state or local law or collective bargaining agreement (CBA) that is more restrictive is not preempted [§2009]

National Labor Relations Act (NLRA)
[29 U.S.C. §§151–168]

Only governs private-sector collective bargaining [§152(6)]; goal is to eliminate coercion or interference with employee rights to engage in protected concerted acts

• §7 employee right to:
  1. Self-organization
  2. Engage in protected concerted acts (e.g., strikes)
     1. Protected activity relates to terms and conditions of employment
     2. Unprotected activity (e.g., violence, strikes in breach of contract)
     3. Concerted: Requires more than 1 in nonunion setting
     4. Constructive concerted: Only need 1 employee invoking CBA in union setting
  3. Bargain collectively through agents of own choosing
  4. Not join a union in right-to-work states (in 2018, there were 28 right-to-work states)
• §8 unfair labor practices
  1. §8(a)
     1. §8(a)(1): Bars employers from interfering with, restraining, or coercing employees in exercising NLRA rights [§158(a)(1)]
     2. §8(a)(2): Employer cannot dominate, support, or interfere with union formation or administration [§158(a)(2)]
     3. §8(a)(3): Employer cannot discriminate in hiring, tenure, or any term or condition of employment that either encourages or discourages participation in union [§158(a)(3)]
     4. §8(a)(4): Antiretaliation provision [§158(a)(4)]
     5. §8(a)(5): Employer cannot refuse to bargain collectively with union over mandatory subjects of bargaining [§158(a)(5)]
  2. §8(b): Bans analogous unions, unfair labor practices, and secondary boycotts [§158(b)]
  3. §8(c): Right of employer, employee, and union to speak freely absent threat of reprisal or force or promise of benefit [§158(c)]
• Jurisdiction of National Labor Relations Board (NLRB)
  1. Representation cases: Procedures for conducting a union election
     1. Determines appropriate bargaining unit
     2. Determines whether employees want an election [§159]
     3. Certifies elected union or decertifies unions
  2. Unfair labor practices (ULPs) cases
     1. Charges filed with NLRB...