Bagley 5th Ed'

1
CHAPTER 12 The Employment Agreement
2
At-Will Employment

• At-Will Employment indefinite duration without
  an express agreement.
• Employees Not Subject to the At Will Rule
• Public Employees.
• Employees with Individual Contracts.
• Union Contracts.

3
At-Will Employment

• Wrongful Discharge.
• The Public Policy Exception refusal to commit an
  unlawful act.
• Remedies
• Sources of Public Policy
• Statutory Protections.
• Federal Statutes.
• Whistleblower Statutes.
• Case 12.1 Collins v. Beazer Homes USA, Inc.
  (2004).

4
At-Will Employment

• Implied Contracts Parties conduct limits the
  Employers right to discharge the Employee even
  though there is no express contract.
• Implied Covenant of Good Faith and Fair Dealing
  not recognized in all states.

5
Fraudulent Inducement

• Businesses may be held liable for overzealous
  sales pitches to attract highly qualified
  personnel under a theory of fraudulent
  inducement.
• Case 12.2 Lazar v. Rykoff-Sexton, Inc. (1996).

6
Noncompete Agreements

• Ancillary agreements to protect a companys or
  individuals interests by limiting a former
  employees ability to work against the former
  employer. The agreement must be reasonable under
  the circumstances of the case.
• Case 12.3 BDO Seidman v. Hirshberg (1999).
• Note Restrictions must be reasonable as to
  time geography and scope of work.

7
At-Will Employment and Employment Practices

• Companies should have a system in place to
  facilitate implementation of a companys
  policies.
• Employers must be careful to reserve rights in
  policy manuals.
• Progressive discipline must be explained fully.
• Arbitration clauses and internal grievance
  procedures are permissible.

8
Recommendations for Former Employees

• Conditional privilege (defense) to defamation
  actions protects former Employers if the
  information given to future Employers is fair and
  in good faith and not published to third parties.
  Also, Employers may be protected if the Employee
  signs a waiver and release.

9
Employer Testing Surveillance

• Limited usefulness and problematic for the
  Employer. Should be part of the company policy
  manual and apply to all Employees.
• Challenges to testing
• Breach of contract.
• No justification.
• Violates privacy.
• False accusation.
• Emotional distress.
• Racial discrimination.

10
Drug Testing

• Public Employees protected by Fourth Amendment
  from unreasonable search and seizures and the
  right to privacy.
• Public transportation.
• Handling of firearms.
• Public school teachers.

11
Health Screening and Genetic Testing

• Norman-Bloodsaw v. Lawrence Berkeley Laboratory
  (1998).
• Constitutionally protected right to privacy of
  medical information.
• Genetic testing may violate Title VII.
• ADA may provide cause of action.

12
Polygraph Testing of Employees

• The Employee Polygraph Protection Act of 1988
  makes it generally unlawful for employers to use
  polygraph exams.

13
Employee Surveillance

• Employers have a legitimate interest in employee
  productivity, but under certain circumstances
  surveillance may transgress the employees
  privacy rights.
• Case 12.4 TBG Insurance Services Corp. v.
  Superior Court of Los Angeles County (2002).

14
Responsibility for Worker Safety

• OSHA safe and healthy work environment is
  required for employers.
• Ergonomics Regulations and Repetitive Stress
  Injuries.
• 25 million fine to Chevron Phillips Chemical
  Company.
• Criminal Prosecutions.

15
Responsibility for Worker Safety

• State Criminal Prosecutions Prosecutions of
  managers and companies who endanger their
  employees with criminal negligence or
  recklessness resulting in employee injury or
  death.
• Tort Liability for Violence in the Workplace
  Employers may be liable after notice and failure
  to take reasonable precautions.

16
Workers Compensation

• Companies should bear the risk of Employee
  injuries that occurs in the workplace. WC can be
  provided through self-insurance, purchased from
  the state or a private insurance companies.
• Employee waives claims against negligent
  employer.

17
Minimum Wage and Overtime

• Who Is Covered? Employers (not independent
  contractors) involved in interstate commerce or
  the production of goods in interstate commerce.
• Hours Worked no limit, if appropriate overtime
  paid.
• Case 12.5 Christensen v. Harris County (2000).

18
Minimum Wage and Overtime

• Minimum Wage and Overtime.
• Exempt Employees -for example salespersons,
  and executive, administrative, and professional
  employees.

19
Immigration Law

• Immigration and Reform Control Act 1986.
• Obtaining a Work Visa.
• Verifying Authorization.
• I-9 (Employment Eligibility Verification form).
• Amnesty Proposal.
• Apply for 3 year temporary-worker permit.

20
National Labor Relations Act

• Covers all enterprises involved in interstate or
  foreign commerce and generally only covers
  working in the United States.
• Supervisors NLRA grants rights only to
  Employees, not Employers.
• Independent Contractors not covered by NLRA
  because they are not employees under the common
  law right to control test.

21
National Labor Relations Act

• Agricultural Laborers specifically excluded
  under NLRA.
• Professional Workers developing area with HMOs.
  Physician bargaining bills introduced in various
  states.
• Temporary Workers possible under NLRA under
  certain conditions.

22
NLRA Union Representation

• Employees decide if they want union
  representation for collective bargaining.
• Filing a Petition interest by at least 30 of
  employees who submit NLRB union authorization
  cards.
• Appropriate Collective Bargaining Unit NLRB
  looks at the kind of work performed, quality of
  the employees, the frequency of contracting,
  geographic proximity, and the wishes of the
  employees.

23
NLRA Union Representation

• Scope of Unit generally it is agreed upon by the
  union and the Employer if no agreement can be
  reached, the NLRB conducts a hearing.
• Conduct of Election regional NLRB office
  conducts it.
• Objections losing party may file for a new
  election.

24
NLRA Unfair Labor Practices

• Interference with Protected Activities (Unfair
  Labor Practices) Section 8(a)(1) of the NLRA
  makes it illegal for an employer to take coercive
  action against employees with regard to union
  activities.
• Domination of a Labor Organization Employers may
  not dominate or assist a labor organization.
• Discrimination against Union Supporters Employer
  cannot discriminate against an employee to
  encourage or discourage union membership.

25
NLRA Unfair Labor Practices

• Discrimination against Employees Who File
  Charges.
• Failure to Bargain in Good Faith. NLRA requires
  Employers to bargain in good faith but does not
  compel either party to agree to a proposal or
  make concessions.
• Implementation After Impasse.
• Bargaining Subjects. Requires Employers to
  bargain over certain subjects.

26
NLRA Unfair Labor Practices

• Public Policy. Courts will not enforce labor
  agreements that are contrary to public policy.
• Presumption of Majority Support. Union certified
  by NLRB enjoys irrebuttable presumption of
  majority support for one year.