Employment and Labor Law

Employment and Labor law initially arose out of protection for employee as a result of the outcomes being one-sided towards employers. There are four categories dealing with employment law. The most famous of these is the Employment at Will which is also known as the Law of Wrongful discharge to many.

Pay and Benefits is another category to be mindful of when thinking in terms of Labor Law, this category also includes safety and privacy issues for the employee. The third category deals with Union-management relationship, and last but not least is discrimination and harassment. Who has what responsibility in these sensitive issues is what we are going to discuss within this document.

The famous Employment at-Will is really not what people think. Most think in terms of the employee can quit when they want and the employer can terminate the employee whenever they want without just cause. Employment in simple terms is a contract between an employee and an employer. Employees can have a contract with an employer for a limited period of time such as during the Christmas holidays or maybe even during the summer period when busy periods of consumer purchases are on the rise.

Other employment contracts could dictate that the employee has to meet a certain sales quota each month or quarter. If the employee fails to meet the quota, then the contract may stipulate that failure to meet the quota will result in dismissal. Although Employment at Will is defined as an employee quitting anytime without a reason and an employer terminating an employee without just cause, there are exceptions to the case. Under Title VII of the 1964 Civil Rights Act, employees may not be terminated because of their race, religion, color, national origin and gender.

The American Disabilities Act of 1990 includes people with disabilities. Of great interest also is because an employee was exercising their legal right. These can be such cases as filing a workers compensation or sexual harassment claim. Another act to be aware of is the “Whistleblowing” act which is when a person contacts a Federal agency and informs them of illegal or wrongdoings by their employer. I for one am very sensitive to the issue of exercising our own legal rights because I did file a sexual harassment lawsuit against an employer.

The employer did not intentionally fire me, but they made it very clear that I was not wanted. My shift scheduled was changed every 6 months, I was given the worst units to work in (Prison Units), when I summed for assistance, personnel would take too long to arrive, negative comments were always said out loud towards me in front of other staff. The stress I endured was overwhelming to the point that I had to seek medical help. It is unfortunate that one is berated for exercising their legal rights, but things like this do happen as I was able to experience it first-hand.

These laws must be in place, or employers will take full advantage without being held liable. There are two Public Policy Exceptions to the at-will employment and this is when an employer terminates an employee as a result of the employee refusing a direction which violates public policy, the law or where the requested act advances a public policy. Employers finding themselves in this predicament by have a legitimate tort filed against them.

A personal example in which a friend of mine was involved in was that their supervisor had requested he aim the “Bionic Ear” at three fellow officers which violated their privacy rights within the facility. Had my friend been terminated, this very well could have ended up in court over wrongful discharge as they were asking him to violate a public policy (Invasion of privacy). According to our text (Morgan, p 510) the required public policy must be tethered to a constitutional provision, statue or administrative regulation.

A tort may also be filed against an employer for intentionally causing emotional distress while terminating the employee for a good cause. A case scenario would be that the employer may have terminated the employee at a business meeting with their co-workers after rebuking him/her to the point that it caused emotional distress. Another condition of employment is Pay and Benefits. The Fair Labor Standards Act was passed in 1938 which monitors the law regarding an employee’s pay. This Law is applicable to employers having two or more employees and involved in interstate commerce.

Child labor is also regulated under this act in that it forbids children under 14 from working and standardizes the work of minors 14 through 18. It’s hard to believe that this act also controls minimum wage standards which is set by Congress and also regulates the forty hour work week. When I say hard to believe it is because I feel the minimum wage is very low and see how people struggle to pay their bills even if they work a forty hour work week by both parents. Congress needs to impose those same standards on themselves along with all other laws that they exempt themselves from.

Speaking of a forty hour work week; any hours worked over forty must be paid at time and one-half. As with other laws, there are exceptions to the rule. In this case, child actors, agricultural workers, management and outside sales personnel may be exempt. An Act that I find equally important is the Family and Medical Leave Act. This Act guarantees an employee to be able to retain their position or at least employment should they exercise their right to care for a family member. In order to qualify under this Act, an employee must have been working with the same employer for a minimum of twelve months.

The surprising thing is that qualifying employees may take as much as three months during a year for family related incident. Incidents such as adoption, birth of a child or for medical reasons which includes at a minimum of three days of incapacitation are qualifying instances. Worker safety which encompasses workman’s compensation also falls under employment and labor law. In essence, an employee is entitled to workman’s compensation if the employee is injured on the job. If the injury was the result of a safety issue at work or whether it was the employee’s own fault that caused the injury that employee may still be entitled to workman’s compensation.

Not being compensated through workman’s compensation as a result of a work injury makes no sense at all. Without it, families could lose everything especially more so if they are the only working member of the family. How would they support themselves or their families? Occupational Safety and Health Act (OSH Act) has two stipulations in which an employer is subject to Workman’s Compensation to their employee. It falls under general duty clause and specific duty clause. Stipulation one necessitates that an employer provide a realistically safe environment. In other words there shouldn’t be any major hazards which may result in the employee’s death or grave bodily injury.

Under the Specific Duty Clause, employers must follow the Occupational Safety and Health Administration, more commonly known as OSHA. OSHA may conduct investigations of employee injuries to determine if there were violations of this Act. When I think of this act, it makes me think of all the farm laborers that have died of heat exposure due to no rest periods or employers not providing water while they are out in the middle of a field.

These are all senseless deaths that could have been avoided had the employer made sure to follow the law and provide shade and water. It is said that OSHA is more industry specific as opposed to the OSH Act. Collective Bargaining falls under section 9 of the National Labor Relations Board (NRLB). In order for a company to be unionized it must go through two stages of collective bargaining.

The first step is that a person must be able to prove that at least thirty percent of workers are interested in having a union. Signatures usually satisfy this requirement. Once this requirement is met, the union will contact NRLB for a representation election. This step can be side stepped if the employer will chooses to recognize the union after the first step, but is highly uncommon.

A union becomes the exclusive bargaining representatives for the employees within the workforce which will then prevent an employee to deal directly with their employer since set circumstances now exist. Unions for the most part work very well for employees as union employees are better paid. Take the California Department of Rehabilitation Employees (CDR) – they are the highest paid law enforcement personnel in the State of California.

The downside is if the union wishes to conduct a strike or a lockout, members wishing not to partake may be ostracized for failing to participate in such conduct. Another downfall is that when a strike does occur an employer may hire replacement employees to perform the employee’s job performance, however the employer also has a right not to re-hire the employee who participated in the strike. In the case of the CDR employees, they are not allowed to strike as doing so may endanger the public. If an employee walks out on their job, they basically have just terminated themselves.

I must agree with the fact that Safety Employees such as Police, Firefighter, etc. should not be allowed to strike because it would most definitely cause a public safety issue. In my opinion Employment and Labor laws were designed for a reason, they are there to protect not only the employee but also the employer. When filing claims of harassment and workers compensation, one must be truthful or they themselves may be held liable in court.

Having these laws, assures a hard working employee a peace of mind by knowing that they cannot be terminated without just cause unless it is so stipulated in their contract. I myself have found use for these laws and as a result was able to file a tort and win. However, it should be known that one must be prepared not only physically, but emotionally as well when going to court under these circumstances. It is not as easy as it sounds; it is a long and stressful journey. The outcome may both be a positive or a negative one, be prepared!

Works Cited

Labor, U. D. (2009, September). Employment Law Guide. Retrieved July 23, 2013, from United States Department of Labor: http://www.dol.gov/compliance/guide/ Morgan, J. F. (2012). Business Law 4e. Redding: BVT Publishing. Robert W. Emerson, J. (2009). Business Law. In J. Robert W. Emerson, Business Law. Hauppauge: Barrons's.