CLARKSON MILLER CROSS 

 


CHAPTER 34: EMPLOYMENT,

IMMIGRATION, AND LABOR
LAW
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 § 1: EMPLOYMENT AT WILL
 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. 

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 EMPLOYMENT AT WILL
 Exceptions to the Employment At
Will Doctrine:
 Contract Theory: is there an implied
employment agreement? What about oral
promises from employer? 

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 EMPLOYMENT AT WILL
 Exceptions to the Employment At Will
Doctrine:
 Tort Theory: wrongful discharge.
 Public Policy: ‘whistleblower’ claims.
 CASE 34.1 WADDELL V. BOYCE THOMPSON INSTITUTE FOR
PLANT RESEARCH, INC. (2012).

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 EMPLOYMENT AT WILL
 Exceptions to the Employment At Will
Doctrine:
 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 agency.

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 §2: WAGE, HOURS, AND LAYOFFS
 Introduction.
Davis-Bacon Act: prevailing wage.
Walsh-Healey Act: minimum
wages.
FLSA: an extension of wage and
hour regulation to workers in
interstate commerce. 
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 WAGE, HOURS, AND LAYOFFS
 Child Labor.
FLSA prohibits oppressive child
labor practices.
Under 14, only allowed to do
certain types of work. 

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 WAGE, HOURS, AND LAYOFFS
 Minimum Wages.
In 2010, FLSA minimum wage is
$7.25/hour in covered industries.
Employers in food or lodging
industries can deduct reasonable
cost of those services from
wages.
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 WAGE, HOURS, AND LAYOFFS
 Overtime Provisions and
Exemptions.
Rule: Under FLSA, employees who
work over 40 hours/week are
entitled to 1.5 times her hourly
wage for those hours worked. 

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 WAGE, HOURS, AND LAYOFFS
 Overtime Provisions and
Exemptions.
Exemptions: certain employees,
e.g., executive or professional, are
exempt from FLSA overtime
requirements.

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 WAGE, HOURS, AND LAYOFFS
 Overtime Provisions and
Exemptions.
Exemptions: do not apply to
manual laborers, nurses, police,
firefighters, and other public safety
workers, ‘blue collar’ workers.

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 WAGE, HOURS, AND LAYOFFS
 Layoffs.
Worker Adjustment and Retraining
Notification Act.
• Requires 60 days notice before a
‘mass layoff’ which means loss of:
 At least 33% of fifty (50) full-time
employees at a single job site, or
 At least 500 full-time employees.
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 WAGE, HOURS, AND LAYOFFS
 Layoffs.
Worker Adjustment and Retraining
Notification Act.
• Notification Requirements.
• Remedies for Violations.
• State Laws May Also Require Layoff
Notices.
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 §3: FAMILY AND MEDICAL LEAVE
 Coverage and Application:
FMLA requires employers with over
50 employees to provide up to
twelve (12) weeks unpaid leave to
employees who need to care for a
spouse, child, or parent suffering
with a serious medical condition.
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 FAMILY AND MEDICAL LEAVE
 Coverage and Application:
Serious injuries or military duty can
take up to 26 weeks.
 Benefits and Protections.
Employer must continue worker’s
health care on same terms. 
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 FAMILY AND MEDICAL LEAVE
 Benefits and Protections.
Employee must be restored to
position upon return to work (unless
it’s a “key” employee).
 Violations.
Damages, Job Reinstatement, and
Promotion.
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 §4: WORKER HEALTH AND
SAFETY
 The Occupational Safety and
Health Act. (OSHA).
The fundamental federal law
aimed toward safety in the
workplace.
Enforcement is by OSHA, NIOSH,
and the OSHRC. 
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 §4: WORKER HEALTH AND
SAFETY
 State Workers’ Compensation
Laws.
Establish procedures for
compensating workers injured on
the job.
Instead of suing for injuries, a
worker is compensated. 
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 WORKER HEALTH AND SAFETY
 State Workers’ Compensation
Laws.
Requirements.
• Existence of employment relationship.
• Accidental injury that occurred on the
job or in course of employment. 

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 WORKER HEALTH AND SAFETY
 State Workers’ Compensation
Laws.
Workers’ Compensation Versus
Litigation.
• Bars plaintiff from suing, but also bars
defendant/employer from any
applicable defenses.
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 §5: INCOME SECURITY
 Social Security.
Portion of income (whether
paycheck or self-employed) goes
to FICA (Federal Insurance
Contributions Act). 

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 INCOME SECURITY
 Medicare.
Federal government health-
insurance program for people 65
years of age, and for those under
65 who are disabled.

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 INCOME SECURITY
 Private Pension Plans.
ERISA does not require employers
to setup pension plans, but
provides rules on management
and investment.
Vesting.
Investment of Funds. 
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 INCOME SECURITY
 Unemployment Insurance.
FUTA created state-run system
that provides unemployment
compensation for those losing
jobs.

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 INCOME SECURITY
 COBRA provides a federal right
to continued health insurance.
Procedures: worker has 60 days to
decide.
Payment: COBRA is not free,
payments depending on
conditions and worker status.
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 INCOME SECURITY
 Employer-Sponsored Group
Health Care Plans.
HIPAA:
• Does not require health insurance
but it does establish requirements
for health plans. 

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 INCOME SECURITY
 Employer-Sponsored Group
Health Care Plans.
HIPAA:
• Strictly limits employer’s ability to
exclude pre-existing conditions.
• Plus, restricts manner of
disseminating patient information.
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 INCOME SECURITY
 Affordable Care Act
(Obamacare).
Employers with >50 employees
are required to offer health-
insurance benefits.
Businesses may be eligible for up
to 35% tax credits. 
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 INCOME SECURITY
 Affordable Care Act
(Obamacare).
“50/30” Rule and Fines.
Employers will be fined only if
employees receives a federal
subsidy to buy health insurance
via the state insurance exchange.
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 §6: EMPLOYEE PRIVACY RIGHTS
 Electronic Monitoring.
More than half of employers use
some sort of electronic monitoring
of employees.
Employee Privacy Protection: is
there an employee expectation of
privacy? 
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 EMPLOYEE PRIVACY RIGHTS
 Electronic Monitoring.
ECPA: “business-extension
exception” allows employer to
monitor.
What about stored
communications?

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 EMPLOYEE PRIVACY RIGHTS
 Other Types of Monitoring.
Lie-Detector Tests.
Drug Testing.
• Public v Private Employers.
• CASE 34.2 NASA V. NELSON (2011).
Genetic Testing.

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 §7: IMMIGRATION LAW
 ICRA.
Makes it illegal to hire, recruit, or
refer for a fee someone not
authorized to work in the U.S.
I-9 Employment Verification: for
new hires. 

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 IMMIGRATION LAW
 ICRA.
Enforcement: by I.C.E.
Penalties. 

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 IMMIGRATION LAW
 The Immigration Act.
Places caps on the number of
visas that can be issued to
immigrants every year.
I-551 Alien Registration Receipts.
The H-1B Visa Program. 

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 IMMIGRATION LAW
 The Immigration Act.
Labor Certification.
H-2, O, L, and E Visas.
 State Immigration Legislation.
Arizona “Show Me Your Papers”
statute was upheld by U.S. Supreme
Court.
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 §8: LABOR UNIONS
 Federal Labor Laws.
Norris-LaGuardia Act: protects
peaceful strikes by limiting the
injunction powers of federal
courts. 

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 LABOR UNIONS
 Federal Labor Laws.
National Labor Relations Act:
establishes the right of workers to
strike and engage in collective
bargaining. Establishing NLRB.

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 LABOR UNIONS
 Federal Labor Laws.
Labor Management Relations Act:
prohibits certain unfair union
practices such as closed shops.
Allowed individual states to pass
right-to-work laws. 

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 LABOR UNIONS
 Federal Labor Laws.
Labor-Management Reporting and
Disclosure Act: hot cargo-
agreements, secondary boycotts.
• CASE 34.3 Services Employees
International Union v. National Union
of Healthcare Workers (2013).
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 LABOR UNIONS
 Union Organization.
First step, majority of workers sign
authorization cards.
Union Elections: can be held only if
it can be shown that at least 30%
of the workers support the union
and will be represented. 
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 LABOR UNIONS
 Union Organization.
Union Election Campaigns: NLRB
regulates rights and obligations of
employers and workers in the
election process. 

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 LABOR UNIONS
 Union Organization.
Each side can pursue their
objectives, but cannot interfere,
beyond certain limits, in the other’s
activities.

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 LABOR UNIONS
 Collective Bargaining.
Process by which management and
labor negotiate the terms and
conditions of employment.
The NLRB will certify an exclusive
bargaining agent for labor. 

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 LABOR UNIONS
 Collective Bargaining.
Both labor and management must
bargain in good faith, but the law
does not require that they reach an
agreement.

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 LABOR UNIONS
 Strikes.
The Right to Strike. Most are
“economic strikes.”
• Picketing is protected by First
Amendment.
• Employers have the right to hire
substitutes to replace striking workers.
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 LABOR UNIONS
 Strikes.
Illegal Strikes:
• Violent strikes.
• Massed picketing.
• Sit-down strikes.
• No-strike clause.
• Secondary boycotts.
• Wildcat strikes.
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 LABOR UNIONS
 Strikes.
Strikers’ Rights after a Strike Ends.
• In an ‘economic strike’, if employer has
hired replacements it does not have to
rehire the strikers. If no replacements
have been hired, then employer must
rehire economic strikers. 
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 LABOR UNIONS
 Strikes.
Strikers’ Rights after a Strike Ends.
• In an ‘unfair labor strike’, different rules
apply but an employer must give the
strikers back their jobs after the strike
is over.

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 LABOR UNIONS
 Lockouts.
Occurs when the employer shuts
down the plant to prevent
employees from working.
Usually used when employer
believes a strike is imminent.

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