Saturday, February 29, 2020
Friday, February 28, 2020
Business Law (part 31)
Employee Rights (part C)
by
Charles Lamson
Protections
In addition to rights against discrimination on various bases and against certain kinds of invasive or offensive testing, employees have been accorded a variety of protections. These include protections of their jobs with a family necessity or medical condition requires a leave, notification of plant closings, and protection from secondhand cigarette smoke.
 |
Family and Medical Leave
In order to allow employees the right to take leave when family circumstances or illnesses require it, the federal government enacted the Family and Medical Leave Act (FMLA). This law allows an employee to take an unpaid leave of up to 12 work weeks in a 12 month period on the following occasions:
The law applies to public and private employers who have 50 or more full or part-time employees for 20 weeks during the year. It gives leave rights to employees who have worked for the employer for at least 12 months and a total of 1250 hours.
While the FMLA gives workers the right to take leave, it is important to note that this leave is unpaid. Workers also may be required by their employers to use accrued paid vacation, personal, medical, or sick leave toward any part of the leave provided by the FMLA. If the leave is for the birth, adoption, or placement of a foster child, the leave must be taken within the first 12 months of the event. Unless the leave is not foreseeable, employees must give 30 days notice of a leave request.
A serious health condition for which leave may be requested is an illness, injury, impairment, or physical or mental condition that requires inpatient care or continuing medical treatment. Its purpose is to provide leave for the more exceptional and presumably time-consuming events. The care given to another includes psychological as well as physical care.
The benefit provided by the FMLA is that after taking the leave and returning to work, employees have to be given back their previous positions. If this is not possible, the employer must put them in an equivalent job in terms of pay, benefits, and the other terms and conditions of employment.
Plant Closing Notification
Under the provisions of the federal Worker Adjustment and Retraining Notification Act (WARN), a business that employs 100 or more employees must give 60 days written notice of a plant closing or mass layoffs. A mass layoff is defined by the act as a decrease in the workforce at a single site of employment that results in an "employment loss" during a 30-day period for:
An employment loss is a termination that is not a discharge for cause, a voluntary departure, or retirement.
The written notice must be given to workers expected to experience some loss of employment, or their union representative, and to specified government officials. Workers in this instance include managers and supervisors. WARN does not require the full 60 days notice if the plant closing or mass layoffs occurs as a result of an unforeseeable business event, a natural disaster, a labor dispute (a lockout or permanent replacement of strikers), the completion of a project by employees who knew the employment was temporary, or certain relocations when employees are offered transfers.
In case of a violation of WARN, an employee may sue the employer for back pay for each day of violation as well as benefits under the employers employee benefit plan. Courts have the discretion to allow the successful party in such lawsuits to recover their reasonable attorneys' fees.
Smoking
The disclosure of the damaging effects of breathing secondhand smoke has resulted in a desire by many nonsmoking employees to work in a smoke-free environment. The right of employees to be protected from secondhand cigarette smoke is protected in a variety of ways.
Some employers have taken the initiative by prohibiting or restricting smoking at their workplaces. In addition, a number of states and municipalities have enacted restrictive smoking legislation. This legislation varies greatly. No state law totally bans smoking at all job sites. Some laws merely require employers to formulate and publicize a written policy about smoking in the workplace. Others require employers to designate smoking and non-smoking areas. Nearly all the laws have exceptions to the smoking ban that allows smoking in private offices. In spite of these exceptions, a very large percentage of employees have some kind of smoking restrictions in effect.
Other Sources of Rights
There are many other rights granted to employees, particularly through federal laws, which apply to large numbers of workers. These laws include the Rehabilitation Act and the Pregnancy Discrimination Act. The rights granted by these two laws are similar to those granted by statutes mentioned in the last few posts.
INTERNET RESOURCES FOR BUSINESS LAW
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., 352-354, 358*
end
|
Wednesday, February 26, 2020
Business Law (part 30)
Employees Rights (part B)
by
Charles Lamson
Testing
In order to make sure businesses run properly, protect employees, protect company property from employee misuse, and weed out applicants for employment who might not be the best employees, many businesses have tried to institute various testing programs. These include polygraph testing, drug testing, and AIDS testing. The right of employers to use such tests, either on a pre-employment basis or on a random or mandatory basis after employment, has been limited by statute as well as by the courts.
 |
Polygraph Testing
As lie detector tests appeared to become more reliable, increasing numbers of employers began using them, both as the tool to find out which employees had violated workplace rules and to screen applicants for employment. As a result of perceived injustices, both because of an intrusion on employees rights and because of the debate about the reliability of such tests, the right to use these tests has been limited by statute. In 1988, the federal government enacted the Employee Polygraph Protection Act (EPPA). A polygraph is another word for a lie detector.
The EPPA limits the use of lie detector devices for pre-employment screening or random testing of employees by employers engaged in interstate commerce. An employer may not retaliate against an employee who refuses to take a polygraph test and may not use the test results as the exclusive basis for an employment decision adverse to an employee who took a test. Private employers may not use polygraphs unless:
An employer may use a polygraph as part of an ongoing investigation if the employee had access to the subject of the investigation and the employer has a reasonable suspicion of the employee's involvement. Before a polygraph test may be administered the employee must be given written notice stating the specific economic loss, that the employee had access to the property that is the basis of the investigation, and giving a description of the employer's reasonable suspicion of the employees involvement.
If an employer violates the EPPA, an employee or a job applicant may sue the employer for the job, reinstatement, promotion, lost wages and benefits, or even punitive damages.
Except for the US Congress, the law does not prohibit it federal, state, and local government from subjecting their employees to polygraphs.
AIDS Testing
With the spread of the AIDS virus, employees have been concerned about contamination from afflicted coworkers. At the same time, workers with the virus have been concerned that they could be stigmatized and even lose their jobs. Since the test for AIDS is a blood test, the test is an invasive procedure and there are some limits to what an employer can require on constitutional grounds. The Fourth Amendment to the Constitution prohibits unreasonable search and seizure. And courts have held that requiring a blood test for AIDS is a search and seizure; therefore, it must be reasonable. To determine whether a search is reasonable, the court balances the intrusion the testing would cause on the constitutional rights of the person to be tested with the interests said to justify the intrusion.
Drug Testing
There has been concern about the ability of employees in certain jobs to properly do their jobs while under the influence of drugs. This concern has resulted in private employers and several federal administrative agencies requiring drug testing of employees or prospective employees. The Supreme Court has recognized three government interest that justify random drug testing. These are: (1) maintaining the Integrity of employees in their essential mission, (2) promoting public safety, and (3) protecting sensitive information. For example, Customs Service employees seeking transfers or promotions to sensitive positions, and railroad workers involved in major railroad accidents or who violate certain safety rules are tested for drug use. Courts have upheld random drug testing for employees in order to promote safety.
Of course, since at will employees can be discharged at any time, employers are free to terminate such as employees who refused drug testing even when their jobs cannot be held to involve public safety.
DNA Testing
As DNA a testing has become more reliable it is possible employers might require it of employees for two reasons:
Many states have laws barring employers from discriminating against employees and prospective employees on the basis of their genetic makeup. These laws prohibit using genetic information when making hiring, promotion, or salary decisions. Victims of genetic discrimination normally can sue their employers for damages. It is likely that more states and the federal government will enact such legislation.
Employees in states that do not have such laws have sued employers for using DNA test results alleging violation of the ADA, the constitutional prohibition on illegal searches and seizures, and Title VII of the Civil Rights Act. Employers should be very careful to ascertain their legal rights before using DNA tests in making hiring, promotion, or salary decisions.
As a reliable method of identifying people, DNA samples could be useful in a number of areas. The military (an employer) takes DNA samples of all personnel to use in identifying remains. The states and the federal government have passed laws setting up DNA databases to use in solving crimes. All states require at least some convicted felons to submit DNA samples to their databases. The courts have almost uniformly upheld the legality of requiring DNA samples from criminals.
Many employers who need to be sure their employees are law-abiding, such as those providing Security Services or dealing with large sums of cash, might want to have prospective employees provide a DNA sample to make sure they are not convicted felons. Just as the military wants to have DNA samples to help in identifying remains, employers of employees involved in hazardous occupations such as firefighters, pilots, and demolition workers would have an interest in having DNA samples for identification.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, PGS. 350-352*
end
|
Tuesday, February 25, 2020
Business Law (part 29)
Employees' Rights (part A)
by
by
Charles Lamson
Many federal and state laws, municipal ordinances, and court decisions grant specific rights to employees. However, not all laws apply to all employees. State laws, court decisions, and ordinances vary. Some rights extend to all or almost all employees, while others may extend only to those in specified industries. The law is constantly extending rights to cover ever larger numbers of workers. Some of these rights include rights against discrimination on specified bases, the right not to be subjected to certain invasive or offensive tests, and various protections such as for taking leave, receiving notification of plant closing, and being protected from secondhand smoke.
 |
Discrimination
Federal laws protects employees from discrimination on a number of grounds. Some laws prohibit discrimination on only one basis, while others protect on many bases. These laws include the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
Civil Rights Act of 1964
The most important law governing employment discrimination and also harassment on the basis of race, color, religion, sex, and national origin is Title VII of the federal Civil Rights Act of 1964. This act applies to every employer engaged in an industry affecting interstate commerce who has 15 or more employees and to labor unions with 15 or more members. It does not apply to the U.S. government except the Congress or certain private membership clubs exempt from federal taxation.
This law makes it an unlawful employment practice for an employer to fail to hire, to discharge, or to in any way discriminate against anyone with respect to the terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. Discrimination because of sex includes discrimination because of pregnancy, childbirth, or related medical conditions. The employer also may not adversely affect an employee's status because of one of these factors. In addition, it is an unlawful employment practice for an employment agency or a labor organization to discriminate, classify, limit, or segregate individuals in any way on any one of these bases.
When a person sues under Title VII, the discrimination is usually claimed on either of two theories. These theories are disparate treatment and disparate impact.
Disparate Treatment. In a discrimination case on the ground of disparate treatment and employment, the plaintiff alleges that the discrimination was against the plaintiff alone and was because of the plaintiff's membership in a protected class. A protected class is any group given protection by antidiscrimination laws, such as groups based on race, color, religion, sex, or national origin and protected by Title VII. Disparate treatment is basically intentionally different treatment. That is, women are treated differently than men, blacks are treated differently than whites, and people of one religion are treated differently than people of another religion, solely because of their sex, race, or religion, respectively. The plaintiff must show the employer acted with the intention of discriminating. Trying to make a case by showing direct evidence of discrimination or by showing:
Once plaintiffs prove these four points, employers must offer a nondiscriminatory reason for their actions. If such reasons can be offered, plaintiffs must then show that the adverse treatment was because of their membership and one of the protected classes---that the employer intended to discriminate.
Disparate Impact. To prove a discrimination claim based on disparate impact, an employer must show that an action taken by the employee that appears fair, nonetheless negatively and disproportionately affects a protected class of employees. An important difference between this theory and disparate treatment is that no intent to discriminate need be shown for a disparate impact. The action complained of could be a testing policy, an application procedure, a job qualification, or any other employment practice whose adverse effect on employees is significantly greater on the members of a protected class than on employees that are not in that class.
Sexual Harassment. Courts have held that the Title VII prohibition against discrimination on the basis of sex protects an employee against an employer who engages in or allows unwelcome sexual advances that create a hostile work environment. A hostile work environment exists when harassing conduct alters the terms or conditions of employment, creating an abusive work atmosphere, and it is based on the victim's membership in a protected class. Economic harm does not necessarily have to be proved. An employer can be liable for harassment by coworkers if the employer knows about the harassment and does not take prompt and appropriate corrective action.
In order to prove that the work environment was hostile, an alleged victim of sexual harassment must show that the environment was one that an objectively reasonable person would find abusive. This means that any reasonable employee would find the environment abusive. Such a requirement protects employers from overly sensitive employees who, for example, might feel that one isolated comment from a coworker created an abusive environment. In addition, victims themselves must find the environment abusive. A victim who is less sensitive than reasonable employees would probably have to have a more abusive work environment before a claim of sexual harassment would be upheld. If both of these requirements are met, the victim need not show psychological injury---the hostile work environment alone is actionable. 
Although many types of actions are prohibited under Title VII, to be actionable, the victim must be affected because of membership in a protected class. Behavior could discriminate or create an abusive work atmosphere, but only that behavior based on the victim's membership in a protected class is actionable. For example, a person could be teased about living in a high-rise apartment, having short hair, long hair, a pierced nose, driving a particular type of car, having freckles, or being tall. Even if they are insensitive or designed to humiliate, as long as the court does not find the comments are based on membership in a protected class, they are not actionable under Title VII.
Successful plaintiffs in Title VII cases are entitled to a remedy that would put them in the same position they would have been in if the discrimination had not occurred. This might include some kind of corrective action by employers, posting of notices about sensitivity training, reinstatement, promotion, payment of lost benefits, and attorney fees. If the discrimination is intentional, the plaintiff may recover punitive damages.
The act established the Equal Employment Opportunity Commission (EEOC), which hears complaints alleging violations of this and other laws. Individuals may file the complaints or the EEOC itself may issue charges. If EEOC verifies the charge, it must seek by conference, consolation, and persuasion to stop the violation. If this fails, the EEOC may bring an action in federal court. If the EEOC finds no basis for a violation, the employee may still sue the employer in court; however, the employee has the burden of hiring a lawyer and pursuing the case.
Equal Pay Act
Recognizing that women were frequently discriminated against in the workplace by being paid less than men were paid for the same work, the federal government enacted the Equal Pay Act of 1963. As an amendment to the Fair Labor Standards Act, the law applies to employees covered by that act. The Equal Pay Act measures that requires that employers pay men and women equal pay for equal work. The law prohibits employers from discriminating on the basis of sex by paying employees at a rate less than the rate at which employees of the opposite sex are paid for equal work. To be equal work, the jobs must be performed under similar working conditions and require equivalent skill, effort, and responsibility.
An employer is not required to pay employees at the same rate if the payments are made on the basis of:
In addition to its application to employers, the Equal Pay Act also prohibits labor unions from making or attempting to make employers discriminate against an employee on the basis of sex. Although the law was intended to help women, it is written in such a way that it requires equal pay for equal work and neither men nor women may be preferred.
Age Discrimination in Employment Act
In order to protect persons age 40 or over from employment discrimination, the federal government enacted the Age Discrimination in Employment Act (ADEA). This statute prohibits arbitrary age discrimination by employment agencies, employers, or labor unions against persons aged 40 or above. Employers are prohibited from firing or failing to hire persons in this age group, and they may not limit, segregate, or classify their employees so as to discriminate against persons in this age group solely because of their age. The firing can be an actual termination or a constructive discharge.
The ADEA does not prevent an employer from ever considering an employee's age or age-related criteria. It prohibits arbitrary discrimination, which occurs when age is considered despite its complete irrelevance to the decision being made. The law allows age discrimination when age is a true occupational qualification, such as the rule that commercial pilots cannot be more than 60 years old. In this case the age limit is related to very significant safety considerations affecting the lives of millions of people. Company seniority systems are also permitted even though they may have an impact on employees based on their ages.
An employee who wishes to pursue an ADEA claim must file a claim with the EEOC within 180 days of the occurrence of the adverse employer action. If the EEOC does not find the claim valid, the employee may bring a court action against the employer. A successful employee could recover back pay, lost benefits, future pay (called front pay), and, at the discretion of the court, attorneys fees. In addition, the court could order reinstatement, promotion, or, for an individual denied a job, hiring. If violation of the ADEA was willful, liquidated damages equal to the back pay award is automatically awarded.
This loss excludes from the definition of employee persons elected to state or local office and persons appointed at the policymaking level.
Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA), which applies to employers of 15 or more employees, prohibits employment discrimination against qualified people with disabilities. An employer may not discriminate because of the disability in job application, hiring, advancement, or firing. For the purposes of the ADA, a disability requires two elements:
It is not enough simply to have impairment and be unable to perform one specific job. The impairment must significantly limit a major life activity such as being unable to perform a class or broad range of jobs. A major life activity includes such actions as speaking, seeing, hearing, breathing, caring for oneself, walking, performing manual tasks, working, sitting, lifting, reaching, and standing.
To determine whether other impairments constitute a major life activity, courts consider the type and severity of the impairment, the duration of the impairment, and any permanent or long-term impact of the impairment. Thus, temporary, short-term, or non chronic impairment with no long-term impact are not disabilities. Such impairments include broken bones, flu, sprains, appendicitis, and concussions. In addition, specifically excluded from the definition of a disability are compulsive gambling, kleptomania, pyromania, sexual behavior disorders, and current illegal drug users and alcoholics.
In addition, a person who has a history of an impairment that limits a major life activity, or is thought to have such impairment, is eligible for the benefits of the ADA. Thus an employee can obtain the benefit of the ADA not because of actual impairment, but because the employee is treated by the employer as having a limiting impairment.
Once a job applicant or employee has been identified as disabled according to the law, it must be determined if the individual with a disability is otherwise qualified for a particular job. If qualified, employers are required by the ADA to make reasonable accommodations to allow the disabled person to perform the essential functions of the job. The reasonable accommodation might include rescheduling employees, raising the height of desks to accommodate wheelchairs, acquiring equipment, or hiring a reader or sign language interpreter. An employer does not have to accommodate a disabled person if the accommodation would impose an undue hardship on the business. Violation of the ADA allows a qualified employee to recovery, such as reinstatement, back pay, compensatory damages, punitive damages, and attorney's fees.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, PGS. 343-349*
end
|
Sunday, February 23, 2020
Business Law (part 28)
Employer and Employee Relations
(part C)
by
Charles Lamson
Liabilities of the Employer to Third Parties
An employer has liability under certain circumstances for injuries that employees cause to third parties. The theory of respondeat superior imposes liability on an employer for torts (wrongful acts or infringement of rights leading to civil legal liability) caused by employees. The employer is liable for personal injury as well as property damage.
 |
To be liable, the employee must have committed the injury in the course of employment. An employee, who, without any direction from the employer, injures a third party and causes injury not as a result of the employment, has personal liability, but the employer does not. The employer has liability, however, if it ordered the act that caused the injury or had knowledge of the act and assented to it. The employer also has liability for the torts of employees caused by the employer's negligence and not enforcing safe working procedures; not providing safe equipment, such as trucks; or not employing competent employees. In rare cases the employer is liable for intentional torts when the conduct constitutes a risk attributable to the employer's business.
Employees Duties to the Employer
The employee owes certain duties to the employer. Failure to comply with these duties may result in discharge. An employee's duties include:
Job Performance
The duties required by the job must be performed faithfully and honestly and to advance the employer's interests. In skilled positions, the worker must perform the task with ordinary skill.
Business Confidentiality
An employee has a duty of confidentiality regarding certain business matters. Trade secrets or other confidential business information must not be revealed.
Inventions
In the absence of an express or implied agreement to the contrary, inventions belong to the employee who devised them, even though the time and property of the employer were used in their discovery, provided that the employee was not employed for the express purpose of inventing the things or the processes that were discovered.
If the invention is discovered during working hours and with the employer's material and equipment, the employer has the right to use the invention without charge in the operation of the business. If the employee has obtained the patent for the invention, the employer must be granted a non-exclusive license to use the invention without the payment of royalty. This shop right of the employer does not give the right to make and sell machines that embody the employees invention; it only entitles the employer to use the invention in the operation of the plant.
When an employer employs a person to secure certain results from experiments to be conducted by that employee, the courts hold that the inventions equitably belong to the employer. Courts base this result on a trust relation or an implied agreement to make an assignment.
In any case, an employee may expressly agree that inventions made during employment will be the property of the employer. Such contracts must be clear and specific, or else courts normally rule against the employer. The employee may also agree to assign to the employer inventions made after the term of employment.
Federal Social Security Act
The federal Social Security Act has four major provisions:
Old Age and Survivors' Insurance
The Social Security Act provides payments to the dependents of covered workers who died before the age of retirement. This part constitutes the survivors' benefits. If workers live to a specified age and retire, they and their spouses draw retirement benefits. This part constitutes the old-age benefits. Both parts are called insurance because they constitute risks that could be insured against by life insurance companies. The survivors' insurance covers the risk of the breadwinner's dying and leaving dependents without a source of income. Old age benefits cover the risk of outliving one's savings after retirement.
Who is Covered? The old-age and survivors insurance provisions of the Social Security Act cover practically everyone. Employees in state and local governments, including public school teachers, may be brought under the coverage of the act by means of agreements between the state and the federal government.
This provision of the act also covers farmers, professional people such as lawyers, and self-employed business people. The act does not cover certain types of work of close relatives, such as a parent for a child, work by a child under 21 for parents, and employment of a spouse by a spouse.
Eligibility for Retirement Benefits. To be eligible for retirement benefits, one must meet these requirements:
Eligibility for Survivors Benefits. The family of a worker who dies while fully insured or currently insured at the time of death has a right to survivors benefits. Currently insured means the person had worked at least six quarters in the 13-quarter period. ending with death.
Assistance to Persons in Financial Need
People over 65 who have financial need may be eligible for federal supplemental security income payments. These monthly payments go to blind or disabled people in financial need. No one contributes specifically to this system based only on need.
Unemployment Compensation
In handling unemployment compensation, the federal government cooperates with the state, which set up their own rules, approved by the federal government, for the payment of unemployment benefits. The states, not the federal government, make payments of unemployment compensation.
The unemployment compensation laws of the various states differ, although they tend to follow a common pattern. They all provide for raising funds by Levies upon employers. The federal government pays the cost of running the programs.
State unemployment compensation laws apply in general to workers in commerce and industry. Agricultural workers, domestic servants, government employees, and employees of nonprofit organizations formed and operated exclusively for religious, charitable, literary, educational, scientific, or humane purposes may not be included.
To be eligible for benefits, a worker is generally must meet the following requirements:
Disability and Medicare Benefits
The government makes monthly cash benefits, called disability insurance benefits, to disabled persons under the age of 65 and their families. A disabled person is someone unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment expected to end in death or that has lasted or will last continually for 12 months.
Medicare is insurance designed to help pay a large portion of personal health care costs. Virtually everyone age 65 and over may be covered by this contributory hospital and medical insurance plan. The program covers only specified services.
Taxation to Finance the Plan
To pay this life insurance and the annuity insurances benefits of the Social Security Act, both the employer and the employee pay a payroll tax (FICA) equal percentage of all income earned in any one year up to a specified maximum. The maximum income and the rate may be changed at any session of Congress. A payroll tax finances the unemployment compensation part of the act. In most states the employer bears this entire tax. The assistance to persons in need is paid for by general taxation. No specific tax is levied to meet these payments. Disability and Medicare benefits are funded from a combination of four sources: FICA, a Medicare tax on people who are not covered by the old age and survivors insurance, premiums paid by the people covered, and the general federal revenue.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, J.D., PGS. 336-342*
end
|
Subscribe to:
Posts (Atom)
-
Measurement Methods by Charles Lamson There are two major measurement methods: counting and judging. While counting is preferre...
-
Product Life Cycles by Charles Lamson Marketers theorize that just as humans pass through stages in life from infancy to death,...
