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LAWS OF THE WORKPLACE
DDisputes
in the work place can arise with fair regularity. This should not be
too surprising.
On one hand, labor and employment issues are highly regulated. On the
other hand our work or business operations can easily encompass the
largest single part of our daily endeavors, and.are also usually deeply
tied to our sense personal identity..
Having often been called upon to explain general labor/employment legal
principles, Ms. Vaile created this webpage to help readers understand
the big picture of labor and employment law.
The information presented on this site is intended for general
information only. It should not be construed to be either legal advice,
or the formation of an attorney-client relationship. Statutes of
limitations are not provided herein, and you should consult directly and
immediatelywith a private attorney if you believe you may have a legal
claim against your employer.
TABLE OF CONTENTS
1. INTRODUCTION
The subject of “labor and employment law” is broad, as well as highly
variegated and complex. Accordingly, this page seeks only to briefly
describe some of the more common categories and salient issues raised in
this broad field, in “overview” fashion. It also provides some limited
information on relevant agencies involved. However, this page does not
purport to be comprehensive or up to date, and anyone with a specific
issue or complaint in the area of labor or employment law should
immediately contact the relevant agency, their labor representative if
any, and/or a private attorney for further information.
* * * * * * * * *
The first thing to keep in mind is that labor and employment law
themselves are very distinct from each other, involving completely
different issues and legal standards.
“Labor law” refers to the
state and federal laws and regulations governing collective bargaining,
or union-related activities. The
National Labor Relations Act (NLRA), 29 USC 151 et seq., governs the
collective bargaining relationships in most private sector industries,
and there are several other federal statutes that govern labor relations
in specific industries and sectors of the economy, including federal
employment and rail and air industries. Many states have also enacted
collective bargaining statutes modeled on the NLRA, to cover some or all
sectors of the economy not covered by federal law, including non-federal
public sector workers.
“Employment law,” in contrast, is the general catch-all
phrase that covers all other areas of the law related to the
various phases, conditions and circumstances of the employment
relationship, such as:
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child labor standards;
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employment benefits; including retirement, health insurance, and
sick leave;
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hiring, discipline and firing; in the non-unionized environment;
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immigration status of employees;
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illegal discrimination or retaliation;
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privacy, and the scope of legitimate restraints on off duty conduct;
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unemployment insurance benefits;
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wage and hour issues;
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work place safety issues; and
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worker’s compensation issues.
(While this list is not by any means exhaustive, it hits a lot of the
highlights.)
The second issue to keep in mind is that the disputants must determine
whether their issue is governed by federal or state law.
Most federal labor and employment laws exclude a number of industries,
employers and/or employees from their coverage, and many states have
enacted their own laws to “fill the gap” or provide greater protection
than that provided under federal law.
The third point to be aware of is that issues and legal standards may
also vary greatly depending on whether the dispute arises in the
private or public sector. For instance, public sector employment
frequently gives rise to certain constitutional protections
related hiring, discipline, firing and the right to benefits. In
contrast, such protections usually do not exist in private sector unless
specifically provided through state statute, negotiated collective
bargaining agreements, or binding employee handbooks or policies.
In private sector employment relations, the default status of
non-unionized employment is “at will,” meaning an employee may
generally be fired for any reason, even a bad one, provided he or she
was not fired on grounds prohibited under the law, such as sex/gender,
race, nationality, religion, age, disability or, in some cases,
retaliatory discharge.
Finally, some public sector employee groups, such as public safety
employees, are treated still differently by separate statute or
regulations, and have different or additional protections.
Consistent with the foregoing, the nature of the dispute and the sector
of the economy involved will largely determine the relevant legal
standards, as well as what forum or administrative agency will hear the
particular dispute.
Under some laws, you may only seek redress through the agency charged
with enforcing that law, such as for Prohibited or Unfair Practice
Complaint under labor law. In contrast, some other statutes provide a
“right of private action” that permits a claimant to sue in court, such
as under some employment discrimination laws. However, even if there is
a right of private action, the claimant will generally be required to
first exhaust his or her administrative remedies at the
relevant agency, before proceeding to court.
Note that complaints filed under the authority of employment or labor
contracts, and administrative actions, may have very
short deadlines in which to file such claims. The deadlines
may be measured in days or weeks, rather than months or years.
Accordingly, you should contact the appropriate representative agency,
or a private attorney immediately upon learning of the existence of a
possible claim.
2. UNION-RELATED MATTERS GENERALLY
Union-related matters are governed by statute and enforced by a
particular agency. All of the various statutes—federal and state—are
similar in that they protect the right of certain employees to
engage in collective bargaining, by prohibiting discrimination
or retaliation based on union related activities, and by providing
procedures under which employees can elect or decline to be represented
by a labor organization (a union).
For employees working in the private sector, the starting
point to determine relevant rights and duties will generally be the
National Labor Relations Act (NLRA), 29 USC 151 et seq. The NLRA is enforced by
the
National Labor Relations Board (NLRB),
and most other collective bargaining statutes—both state and federal—are
generally modeled along the lines of the NLRA, and/or NLRB case law.
For many employees working in state, municipal or local
government, or in the public school or higher education systems,
union-related matters may be governed in the first instance by state law
enforced by a state agency. For example, California, D.C., Illinois,
New Mexico, Oregon, and Washington (among others) all have their own
public sector collective bargaining law(s).
In contrast, employees engaged in the federal public employment
sector will likely be covered under one of the following acts and
agencies:
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Federal Service Labor Management Relations Act (“Federal Service
Statute”),
5 U.S.C. 7101 et seq., governs personnel and collective
bargaining issues in the federal sector and is enforced by the
Federal Labor Relations Agency (FLRA); or
-
the
Railway Labor Act,
45 U.S.C. 151 et seq., governs collective bargaining issues
arising in the railway and airline industries. The RLA is enforced
by the
National Mediation Board.
Labor law, in essence, protects employees’ rights to unionize, and to
act together (“in concert”) to advance their interests related to wages,
hours and conditions of employment. It does so by prohibiting any
conduct that would “interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed.” Some common unfair practices
include the following.
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Discrimination or retaliation because of union involvement, or the
filing of a labor affidavit, complaint
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Interference with Weingarten rights
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Interrogating employees about their union activities
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Threatening employees about the ill-effects or consequences of union
representation
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Surveillance or recording of protected activities
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Denial of reasonable access between union representatives and
employees
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Passing work rules with the intent to interfere with labor rights,
rather than for legitimate business purposes
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Disciplining union stewards for union activity
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Refusal to provide a union information necessary to negotiate and
enforce a contract
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Interference with union’s status as exclusive representative
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Violation of the duty to bargain in good faith
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Unilateral
change of employment terms and conditions
Most labor laws also prohibit violation of a
collective bargaining agreement, once negotiated. Alleged contract
violations can concern anything governed by the contract, such as
bargaining unit work/subcontracting, just cause in the issuance of
discipline, pay, and unilateral changes in terms and conditions of
employment, to name only a few. However, contract claims are generally
subject to the requirement to exhaust grievance-arbitration remedies and
in most cases, the relevant Agency (particularly the NLRB) will “defer”
to the grievance-arbitration process upon a party’s request.
Arbitral remedies for labor (including contract) violations often
include one or more of the following:
Cease-and-desist orders
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Expungement or mitigation of discipline
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Reinstatement and backpay, including lost
seniority or benefits
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Return to the status quo/make whole remedies
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Bargaining orders
Extraordinary remedies or punitive damages are
generally disallowed in arbitration, but may be available in some
circumstances for repeat or flagrant violators. Additionally, in the
federal sector, a prevailing employee may seek attorney fees under the
Back Pay Act, 5 U.S. Code § 5596.
3. EMPLOYMENT DISCRIMINATION
(a) Introduction and Overview.
Labor law governs
discrimination, harassment and/or retaliation based on union related
activities. Employment law governs other types of illegal
discrimination. I stress “illegal,” because it is not enough that an
employer treats one employee badly or different from other employees.
Rather, the alleged discrimination must be prohibited by federal and/or
state law.
Illegal employment discrimination generally includes that based on
race; age; religion; color; national origin; ancestry; sex/gender;
physical or mental handicap or serious medical condition.
Additionally, in some states it may also include sexual orientation or
gender identity. See, e.g., New Mexico Human Rights Act, NMSA 28-1-1,
et seq.; and the Colorado Antidiscrimination Act, CRS 24-34-401, et seq.
While sexual orientation and gender identity are not expressly written
into Federal anti-discrimination statutes, jurisdictions are currently
split on whether they are nonetheless included under “gender
discrimination.”
Under anti-discrimination laws, an employer may not discriminate in the
hiring, promotion, job assignment and/or wages, based on illegal
criteria. Nor may an employer terminate or otherwise retaliate against
an employee for filing a claim based on discrimination. However, the
availability of protection against illegal discrimination varies widely
from statute to statute depending on the number of employees. For
relevant federal statutory language, see the following acts:
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Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d) (protecting men and women
who perform substantially equal work in the same establishment, from
sex-based wage discrimination);
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Civil Rights Act of 1964,
Title VII, 42 USC §§ 2000e -2 et seq. (prohibiting employment
discrimination on the basis of race, sex, religion, or national
origin, generally by employers with 15 or more employees, and
creating the EEOC);
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Age Discrimination in Employment Act of 1967 (ADEA), 29 USC §§ 621 et seq.
(protecting applicants and employees who are 40 years of age or
older from employment discrimination based on age, where employer
has 20 or more employees)
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Rehabilitation Act of 1973,Sections 501, 503 and 504, codified at 29
USC §§ 701 et seq. (prohibiting discrimination on the basis of
disability in federal employment and among certain federal
contractors, and requiring affirmative action employment plans);
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Pregnancy Discrimination Act of 1978, 42 USC §§ 2000e(k) et seq.
(amending the Civil Rights Act to clarify that “[t]he terms ‘because
of sex’ or ‘on the basis of sex’ include, but are not limited to,
because of or on the basis of pregnancy, childbirth, or related
medical conditions”);
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Americans with Disabilities Act of 1990 (ADA) and ADA Amendments Act
of 2008 (ADAAA),
Titles I and V, 42 USC §§ 12101 et seq. (a.k.a. Equal
Opportunities for Individuals with Disabilities, prohibiting
discrimination based on disability in the private sector and in
State and local government);
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Government Employee Rights Act of 1991,42 USC
§§ 2000e-16a et seq. (formerly 2 USC §§ 1201 et seq.) (amending the
CRA to prohibit illegal discrimination in federal appointments); and
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Title II of the Genetic Information Nondiscrimination Act of 2008
(GINA) (prohibiting employment discrimination based on genetic
information about an applicant, employee, or former employee).
Employment discrimination can be the intentional disparate
treatment of members of a protected class, or it can
result from the “disparate impact” of facially
non-discriminatory actions or policies on a protected class.
Additionally, intentional discrimination itself may be framed in one of
several ways.
(b) Intentional discrimination or
“disparate treatment”.
Under this type of claim, a plaintiff alleges he or she was treated
differently from other employment applicants or employees because
of his or her race, age, religion, color, national origin,
ancestry, sex/gender, physical or mental handicap or serious medical
condition, sexual orientation or gender identity, or spousal
affiliation.
In these kinds of cases, the two main proof issues are animus,
or that the discrimination was intentional, and causation
between the discrimination and any adverse employment action. Employer
liability for the conduct of its agent may also be an issue.
Causation may be established by “temporal proximity” between acts evidencing
discrimination and the adverse employment action, or other
circumstantial evidence. Intent may be proven directly or through
circumstantial evidence.
(c) Hostile workplace claims.
Because overt declarations of discriminatory intent are rare, the most
common type of direct evidence is a pattern of remarks or conduct which
is so subjectively and objectively offensive and persistent as to give
rise to a “hostile workplace” or “hostile work environment” (“HWE”).
In HWE cases, ambiguous statements, stray remarks and isolated
conduct are usually insufficient to create liability. Instead, analysis
usually turns on the nature/severity, frequency, and duration of the
conduct. However, it must be stressed that all laws related to
harassment are underoing new shifts and tensions in today’s world of #metoo,
#blacklivesmatter, and other identity-related movements.
In HWE of cases, the employer can raise an affirmative defense
that it exercised reasonable care to prevent and correct harassment, and
the employee failed to notify the employer of the misconduct, or to use
the employer’s remedial procedures. Historically, employers have also
been allowed to present evidence that the conduct would not have been
“objectively offensive” in the particular work environment (such as on
an oil rig, or other rugged, industrial work environment), or
“subjectively offensive” to the particular employee who (such as an
employee alleged to be accustomed to engaging in crude speech or
behavior on the shop floor). However, as noted above, this is an uncertain area of law
today that is subject to change depending on geography and jurisdiction,
as well as the particular type of discrimination alleged.
(d) Quid pro quo harassment or
“tangible employment action” claims.
The “quid pro quo” claim is a type of
direct-evidence, intentional discrimination case that is unique to
sexual harassment. As the name suggests, this occurs when an
employer conditions some specific and tangible employment action,
benefit or condition (such as a raise, scheduling, or the granting of
leave) upon the receipt of sexual favors.
Employers are strictly liable for the actions of
supervisors in these types of cases.
(e) “Prima facie” or circumstantial cases.
Where there is no direct evidence of intentional discrimination (such as
in HWE versus quid pro quo claims), a plaintiff may present a prima
facie case from which discrimination can be inferred. The
elements for a prima facie discrimination case are that
the claimant:
-
is a member of a “protected class,” meaning covered by
one of the foregoing statutes;
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has suffered adverse employment action such as
discipline, termination or failure to hire or promote; and
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in doing so, has been treated differently from similarly situated
non-members of that protected class.
If a prima facie case is alleged, the
burden will shift to
the prospective employer or employer to demonstrate that it had other
legitimate reasons for acting as it did. If the employer does
demonstrate a legitimate reason, the burden will then shift back to the
plaintiff to demonstrate that the reason given is
“pretextual,”
or that the principleor dominant purpose was to discriminate.
The plaintiff always retains the ultimate burden to convince the trier-of-fact
that an adverse employment action was discriminatorily motivated.
(f) Disparate Impact.
Disparate impact claims, unlike disparate treatment claims, are not premised on motive. Instead, motive is irrelevant and the
focus of inquiry is on some facially neutral hiring device or employment
practice that has a disproportionate impact on a group defined by race,
color, religion, sex, national origin age and disability (although the
latter two categories have different standards).
This is a rather controversial theory, and has several
special difficulties. First, it applies only to statutory claims, not
constitutional or §1981 claims. Second, it is difficult to establish
since statistics alone have been held to be insufficient.
Methods for proving a disparate impact include the following:
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Effect on the population.
For example, state census figures regarding graduation rates of a
class have been held sufficient to show disparate impact of
requirement of a high school diploma.
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Applicant flow.
This type of analysis examines the relative pass rates or acceptance
rates between classes.
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Four-fifths rule.
This method goes to the degree of disparity, and under it a process’
impact is “adverse” where it produces a pass rate of less than four-
fifths or 80% of that of the group with the highest pass rate. NOTE
that some courts have rejected the four-fifths rule or any single
measure, and instead determine disparate impact on a case-by-case
basis.
(g) Relevant agencies.
Questions or complaints concerning illegal employment discrimination
should be directed to the federal
Equal Employment Opportunity Commission (EEOC) or a parallel State EEO agency.
Oftentimes, if a matter is filed with either the EEOC or a related State
EEO agency, the other agency will grant reciprocity to that filing date.
Typically, if a matter is filed with either the EEOC or a related State
agency, the other agency will grant reciprocity to that filing date.
When the EEOC is unable to process claims in a sufficiently timely
manner, or when it concludes there is insufficient evidence of
violation, it may issue a “Right to Sue Letter.” This permits the
claimant to proceed by filing a civil suit in court, and will deem him
or her to have exhausted their administrative remedies before these
agencies.
4. FAMILY MEDICAL LEAVE ACT
The purpose of the
Family Medical Leave Act (FMLA), 29 USC §§ 2601 et seq., is to promote work/family balance by allowing employees to take
reasonable unpaid leave for certain family and medical reasons,
accommodating the legitimate interests of employers, and promoting equal
employment opportunity for men and women.
Under the FMLA, eligible employees may take off up to 12 work
weeks in any 12 month period for the birth or adoption of a
child, to care for a family member, or if the employee themselves has
serious health condition.
FMLA eligibility rights are statutorily limited.
To be eligible for FMLA benefits, the employee must have been employed by the instant employer for at least 12 months
(consecutive or nonconsecutive), and worked at least 1,250 hours.
Additionally, the employer must employ 50 or more employees
within 75 miles of the worksite. The employee must also provide 30 day
advance notice for foreseeable events, and the employer may require a
doctor’s statement attesting to the need for leave.
If these criteria are met, the employee’s position, or a comparable one, must be maintained in his
or her absence. The employee is also entitled to have his or her
benefits maintained, but they must continue to pay their portion during
the leave. If both spouses work for the same employer, they are not each
entitled to take 12 weeks off for the same covered situation.
--
If these criteria are met, the employee’s
position, or a comparable one, must be maintained in his or her absence.
The employee is also entitled to have his or her benefits maintained,
but they must continue to pay their portion during the leave. There are
a variety of other limitations, conditions, and special rules under the
FMLA that are not addressed here.
For more information on the FMLA, contact the US-DOL
or click
here.
5. UNEMPLOYMENT COMPENSATION
The Federal-State Unemployment Insurance Program is a joint
state/federal program implemented at the State level.
Unemployment insurance taxes, which are based on a percentage of the
wages paid, are paid by almost all employers with three or more employees.
Typically, benefits are available in the following circumstances:
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the employee was laid off;
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the employee was terminated, but not for “misconduct connected with
work;” or
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the employee voluntarily quit his or her employment, but can prove
good cause for doing so.
Mere unsatisfactory job
performance or even an isolated violation of work rules will generally
be insufficient grounds to deny unemployment benefits, but the exact
legal standards vary by state.
For more information on the Unemployment Insurance programs see
US-DOL Unemployment Insurance Fact Sheets
and any relevant State agencies’ cites.
Workers compensation, in contrast, is not a
joint program. Instead there is a federal statute and program for
federal and postal employees, and other workers are covered under state
law, which can vary significantly. Workers comp systems are generally
“no fault systems,” which represent a trade off in which
employees receive capped damages but are not required to establish
employer liability for any accidental injury arising out of and
occurring in the course of employment, and resulting in disability to a
reasonable degree of medical certainty.
6. WAGE AND HOUR ISSUES, GENERALLY
Wage and hour disputes may include such issues as: :
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the minimum hourly wage and overtime wage required under law;
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the amount of hours a person can be required to work;
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whether a person is entitled to rest and/or lunch breaks;
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the wage and hours allowed for children, which are discussed above;
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the time limit in which any owed wages and benefits must be paid
upon voluntary or involuntary separation; and
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record keeping obligations.
Under the Fair Labor Standards Act (FLSA), 29 USC §§ 201, et seq.,
the federal minimum wage is currently $7.25 an hour, effective July
24, 2009 but an increasing number of states and municipalities have
enacted higher local minimum wages, which are popularly known as “living
wage” rates. Where an employer is subject to multiple minimum wage
rates, the higher one applies. There is currently a nationwide movement
to advance the federal minimum wage to $15.00/hour (“Fight for $15”),
but its ultimate fate is uncertain.
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Typically, certain categories of employers
and/or employees are exempted from minimum and/ or overtime rates, or
may be paid a subminimum wage. For example, there are generally special
rules or exceptions for professionals, supervisors and management;
tipped employees such as waiters and waitresses; children; and
agricultural workers, to name a few. There are also often specials rules
and/or exceptions for public safety personnel (i.e., police and fire
fighters). For more information on
minimum wage rates generally, see the
U.S.
Department of Labor.
Federal and State wage and hour laws also provide for a maximum number
of hours after which overtime must be paid, and the rate of
overtime. Under the federal Fair Labor Standards Act you are entitled to
time and a half after working 40 hours a week. Some states provide for
overtime for days longer than 8 hours.
Federal law does not mandate breaks or lunch periods, provided
that breaks of less than thirty (30) minutes are not deducted from pay,
and provided the employees are paid overtime as appropriate. Nor does
federal law generally limit the total hours that may be worked, provided
overtime is paid (there are obviously exceptions for certain hazardous
industries).
For more information on wage and hour matters, including record keeping
obligations and the collection of unpaid wages and/or vacation pay, see
the
Handy Reference Guide to the Fair Labor Standards Act
7.
OTHER
WRONGFUL EMPLOYMENT ACTION--PRIVATE SECTOR
Additional issues may arise in the public sector. For instance, an
employee may believe he was refused hire based on an improperly y negative reference from a prior employer. Prior employers are
allowed under the law to provide any non-confidential information in a
reference, but the information must be true and may not be provided for
the purpose of maliciously harming the ex-employee.
Or, an at-will employee may be concerned that she was disciplined or
fired improperly, although not for reasons having to do with illegal
discrimination. Many State courts recognize two exceptions to the
general rule of at-will employment:
a.
discharge in violation of public policy, such as retaliatory discharge;
and
b.
discharge in violation of an implied contract of employment, such as
under an employee handbook or police.
Implied contracts
have been upheld “where the facts showed the employer either has made a
direct or indirect reference that termination would only be for just
cause or has established procedures for termination that include
elements such as a probationary period, warnings for proscribed conduct,
or procedures for employees to air grievance.” “Implied contracts” can
sometimes be found to have arisen from an employee handbook,
depending on state law and the parties’ degree of reliance on the
handbook..
Another recurring issue is that of “constructive discharge.”
Constructive discharge is not an independent tort, but rather a way of
recasting an apparent resignation as termination. The issue can arise in
the context of either implied contract claims or statutory
discrimination claims. To state a claim for constructive discharge, an
employee must allege facts sufficient to find that the employer made
working conditions so objectively intolerable that a reasonable person
would be compelled to resign. Examples of adverse employment actions
found to rise to this level include humiliating demotions; extreme cuts
in pay; transfers to positions with unbearable working conditions; overt
pressures to resign and/or accept early retirement; and retaliatory
measures such as discrimination, unreasonable criticism and involuntary
transfers.
CONCLUSION
As seen in the foregoing sections, labor and employment are broad fields
of law that can vary greatly depending on the issue, industry, sector,
and/or number of employees involved. This overview is not exhaustive,
and significant areas and issues are not reviewed herein.
Timely obtaining competent legal advice will often be critical to
protect your rights and/or minimize legal liability. Once
representation and counsel is obtained, Ms. Vaile encourages parties to
explore alternatives to litigation in resolving their dispute.
Please
contact us, together with your labor/employment counterpart, to
discuss whether your dispute may be amenable to resolution with ADR,
such as arbitration or mediation.
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