B LAW 341

BUSINESS
LAW I
SECTION 005
INTRODUCTION TO
Employment
CONTRACTS, Law
Safety
LIABILITYand
ISSUES &
Benefit Regs
INTELLECTUAL
TOPIC OUTLINE
I. Employment Discrimination (continued)
A. Sexual Harassment
B. Americans with Disabilities Act
II. Unions
A. Legal Structure
B. Formation
III. Health and Safety Protection
A. Fair Labor Standards Act
B. Family Medical Leave Act

2017 Daniel R. Cahoy

LABOR LEGAL STRUCTURE
Clayton Act (1914)
TheClayton Antitrust Actof 1914 to prevent anticompetitive practices in their
incipiency.
Organizing not anticompetitive
Norris-LaGuardia Act (1932)
Peaceful strikes permitted
Strikes and related behavior not enjoined
No yellow dog contracts
Yellow dog: wont join the labor union

National Labor Relations Act (1935)
Created NLRB
Established Basic Rights for Collective Bargaining
Employees defined
What kind of employees are eligible for the union
Labor-Mgmt Relations. Act (Taft-Hartley) (1947)
Curbed unfair union practices
Unions have so much power that they are dominated the industry
Pull back power from union
They can be unfair and hurt companies and the economy
2016 Daniel R. Cahoy
RIGHT TO WORK
NLRA permits unions and employers to agree to limit certain jobs
to union employees
Union security agreement
Agency Shop requires employees at least pay fees
They wanna negotiate your pay in behalf of you
You lose your freedom of speech, speak individual
Taft-Hartley permits states to outlaw agency shops
Right to Work laws
Reduce the power of states
The state choose to be the right to work state
If you dont want to be in the union, you dont need to pay the dues
Employees cannot be forced to pay fees
Focal point of litigation
Public sector and the First Amendment
Private sector and the Fifth Amendment

2016 Daniel R. Cahoy

NATIONAL LABOR RELATIONS BOARD
(NLRB)
Independent government agency
Jurisdiction does not cover all employees
Government Employees
Independent contractors, ag laborers and domestic workers
Employee of spouse or parents
Quasi-Judicial authority
Investigations
Cease and desist order
Change your behaviors
denoting a legally enforceable order from a court or government agency directing
someone to stop engaging in a particular activity.
Elections

Public unions covered by the government by the federal laws

Penn state graduate union is not covered by it, it is a private union

2016 Daniel R. Cahoy

RULES FOR WORKING WITH UNIONS
Strikes(stop working,dont show up to work, it is a protected behavior )
Influence on Shareholders
Economic Strikes(I want better pays, benefits are not good enough)
Replacement workers
Plant Closings
Lockouts
Unfair Labor Practice Strikes

Cooling-off period
Taft-Hartley
The president can call a 80-days cooling off period, the strike workers have to go back to work
Ensure the national economy is damaged to a minimum

2016 Daniel R. Cahoy

RULES FOR WORKING WITH UNIONS
Contract Negotiations
Good faith bargaining
Sit down and talk to each other
Mandatory vs. Permissive
Mandatory topics: wages, benefits
Permissive: uniform color, doesn'tt have a specific economy effect
No employer unfair labor practices
Discrimination against union employees
Cant fire graduate student who is talking about this

Interference w/ protected activities

Derogatory comments about the manager on myspace

2016 Daniel R. Cahoy

HISPANICS UNITED OF BUFFALO
Hispanics United (HU) is a non-profit that provides services to
disadvantaged persons
Cole-River and Cruz-Moore were employees
Cruze-Moore criticized HU advisors treatment of clients
Cole-Rivera and other posted complaints on Facebook
When HU found out, Cole-Rivera and four others were fired
NLRB
Illegal to interfere with employees concerted activity related to working
conditions or organization
Facebook posted were protected activity
Firing was not legal

Complain about work condition:

The kind of condition that arises to unions
No one in the case is in the unions
Theoretically arises to an union, NLRB act like a court and cant fire them

2016 Daniel R. Cahoy

RULES FOR WORKING WITH UNIONS
Contract Negotiations
Good faith bargaining
Mandatory vs. Permissive
No employer unfair labor practices
Discrimination against union employees
Interference w/ protected activities
Taft-Hartley established six unfair union practices
1. Coercing an employee to join a union
2. Forcing employer to discriminate against non-union
3. Refusing to bargain
4. Striking for illegal purposes
5. Excessive union fees
6. Demanding employer pay for work not performed

2016 Daniel R. Cahoy

SHOULD EMPLOYEES UNIONIZE?
Consequences
Positive
Higher wages for some positions?
More employee involvement in
company decision making?
Negative
Fewer positions or store openings?
Some benefits no longer offered
Let us remind you of all that Walmart offers, and of what
might go away. Quarterly bonuses might go away,
vacation time might go away.

2016 Daniel R. Cahoy

UNION ORGANIZING AND ELECTIONS
Forming a union
Authorization card and voluntary recognition
50% approval
Petitions 30 % approval
Appropriate bargaining unit
Mutuality of interest
Election
On-the-job campaign restrictions
Objection and Certification

Removing recognition

2016 Daniel R. Cahoy

WAGES AND HOURS STANDARDS
Early efforts to regulate wages
Twilight of Lochner era (the private companies can make free contract with
any age and any hours)
Fair Labor Standards Act (1938)
Extended federal protection to all employers in interstate commerce
Commerce clause power
Child labor(outlaw child labor)
Sliding scale
Children under 14 permitted to work under limited circumstances
U can work for the family business
Children 16-18 restricted from hazardous work
Limit the number of hours u work
Wages or Hours
Minimum wage (states can go above but not below)
Overtime for more than 40 hours
Exempt employees
Anti-retaliation provisions
Illegal
Question of unpaid internships
Educational experiences

2017 Daniel R. Cahoy


FLSA EXEMPTIONS
Many, many exemptions to
wage and overtime rules
Even some for child labor
Source: DOL website
New 2016 rules increase
saley
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Aircraft salespeople - OT
Airline employees - OT
Auto salesman and mechanics - OT
Amusement/recreational employees in national
parks/forests/Wildlife Refuge System - OT
Babysitters on a casual basis - MW & OT
Boat salespeople - OT
Buyers of agricultural products - OT
Companions for the elderly - MW & OT
Country elevator workers (rural) - OT
Workers with disabilities - MW
Domestic employees who live-in - OT
Drivers - OT
Executive, Administrative, professional and outside sales - MW & OT
Farmworkers - MW & OT
Farm implement salespeople - OT
Federal criminal investigators - MW & OT
Firefighters working in small (less than 5 firefighters) public fire
departments - OT
Fishing - MW & OT
Forestry employees of small (less than 9 employees) firms - OT
Fruit & vegetable transportation employees - OT
Homeworkers making wreaths - MW, OT & CL
Houseparents in non-profit educational institutions- OT
Livestock auction workers - OT
Local delivery drivers and driver's helpers - OT
Lumber operations employees of small (less than 9 employees)
firms - OT
Motion picture theater employees - OT
Newspaper delivery - MW, OT & CL
Newspaper employees of limited circulation newspapers - MW &
OT
Police officers working in small (less than 5 officers) public police
departments - OT
Radio station employees in small markets - OT
Railroad employees - OT
Sale employees (commissioned) - OT
Seasonal employees - MW & OT
Seamen on American vessels - OT
Seamen on other than American vessels - MW & OT
Sugar processing employees - OT
Switchboard operators - MW & OT
Taxicab drivers - OT
Television station employees in small markets - OT
Truck and trailer salespeople - OT
Youth employed as actors or performers - CL
Youth employed by their parents - CL
TYSON FOODS V. BOUAPHAKEO (2016)
Bouaphakeo and other plaintiffs were employees at a Tyson pork processing
plant in Iowa
Not paid for time spent putting on protective gear
Class action
Tyson did not keep track of time
Employees attempted to prove with representative evidence (testimony, video
analysis, etc)
Under compensated by 1/4 hour per day
Court
Fair Labor Standards Act requires payment for activities integral and indispensable to
work
Includes putting on protective gear
Representative evidence can be used in class action
If employees similarly situated
Employees can continue case

2017 Daniel R. Cahoy

MEDICAL LEAVE
Family and Medical Leave Act
1993 federal law with 2009 amendments
Employers with 50 or more employees
Up to 12 weeks of unpaid leave in a year
Family leave
Medical leave (personal and family)
Health care continued
Government Employees included
Personal medical leave provision excepted from
government
Remedies
Damages
Reinstatement or promotion
Dont confuse employers rules for paid leave
States can add more protection

2017 Daniel R. Cahoy