• What is the employment-at-will
doctrine? When and why are exceptions
to this doctrine made?
• What federal statute governs working
hours and wages?
• Under the Family and Medical Leave Act
of 1993, in what circumstances may an
employee take family or medical leave?
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• What are the two most important
federal statutes governing immigration
and employment today?
• What federal statute gave employees
the right to organize unions and engage
in collective bargaining?
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• Historically, employment law was
governed by the common law doctrine
of “employment at will” where either
employer or employee could terminate
the relationship at any time, for any
reason.
• Today employment law is heavily
regulated by state and federal statutes.
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• Employment relationships have been
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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• Exceptions to the Employment At Will
Doctrine:
–Contract Theory: is there an implied
employment agreement? What about
oral promises from employer?
• CASE 29.1 Ellis v. BlueSky Charter School
(2010). Why did Ellis believe his
employment was based on an
employment contract, and not at-will? 
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• Exceptions to the Employment At
Will Doctrine (cont’d):
–Tort Theory: termination may give rise
to wrongful discharge claims.
–Public Policy:
• Requirements: Must be clearly stated in
statutes governing that jurisdiction.
• Whistleblowing and Public Policy.
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• 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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• Introduction.
–Davis-Bacon Act -- the prevailing wage
act.
–Walsh-Healey Act -- the beginning of
minimum wages.
–Fair Labor Standards Act (FLSA) -- an
extension of wage and hour
regulation to workers in interstate
commerce. 
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• Child Labor.
–FLSA prohibits oppressive child labor
practices.
• 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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• 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.
–Exemptions: certain employees, e.g.,
executive or professional, are exempt
from FLSA overtime requirements.
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• Overtime Provisions and Exemptions.
–Exemptions (cont’d).
• Exemptions from FLSA overtime do not
apply to manual laborers, nurses, police,
firefighters, and other public safety
workers. ‘blue collar’ workers.
• CASE 29.2 Smith v. Johnson and Johnson
(2010). Is it unfair to exempt some
employees from overtime, regardless of
what the parties negotiate?
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• Worker Adjustment and Retraining
Notification Act (WARN): requires 60
days notice before a ‘mass layoff’ which
means during a 30 day period, a
reduction in force that results in 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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• Worker Adjustment and Retraining
Notification Act (WARN) (cont’d).
–Notification Requirements.
–Remedies for Violations.
• State Laws May Also Require Layoff
Notices.
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• 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.
–Serious injuries or military duty can
take up to 26 weeks. 
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• Benefits and Protections:
– Employer must continue worker’s health care
on same terms. Employee must be restored
to position upon return to work (unless it’s a
“key” employee).
• Violations of the FMLA.
– Damages, lost benefits & compensation, and
actual losses up to the equivalent of 12 weeks
(26 weeks military), job reinstatement, and
promotion, if denied.
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• 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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• State Workers’ Compensation Laws.
Establish an administrative procedure for
compensating workers injured on the
job. Instead of suing for injuries, a worker
is compensated.
– Requirements.
– Workers’ Compensation Versus Litigation.
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• Social Security: portion of income
(whether paycheck or self-employed)
goes to FICA (Federal Insurance
Contributions Act).
• Medicare: federal government healthinsurance program for people 65 years of
age, and for those under 65 who are
disabled.
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• Private Pension Plans.
–ERISA does not require employers to
setup pension plans, but provides rules
on management and investment.
–Vesting.
• Unemployment Insurance.
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• 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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• Employer-Sponsored Group Health
Plans.
–HIPAA: does not require health insurance
but it does establish requirements for health
plans.
• Strictly limits employer’s ability to exclude preexisting conditions.
• Plus, restricts manner of disseminating patient
information.
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• Electronic Monitoring In the
Workplace: more than 2/3 employers
use some sort of electronic monitoring of
employees.
–Employee Privacy Rights Under
Constitutional and Tort Law: is there an
employee expectation of privacy? 
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• Electronic Monitoring (cont’d).
–ECPA: “business-extension exception”
allows employer to monitor.
–Stored Communications.
• Other Types of Monitoring.
–Lie-Detector Tests.
–Drug Testing.
–Genetic Testing.
–Screening Procedures.
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• Immigration Reform and Control Act:
makes 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.
–Enforcement: by I.C.E.
–Penalties.
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• 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.
–Labor Certification.
–H-2, O, L, and E Visas.
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• Federal Labor Laws.
–Norris-LaGuardia Act: protects peaceful
strikes by limiting the injunction powers of
federal courts.
–National Labor Relations Act: establishes
the right of workers to strike and engage in
collective bargaining. Establishing NLRB.
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• Federal Labor Laws (cont’d).
–Labor Management Relations Act:
prohibits certain unfair union practices such
as closed shops. Allowed individual states to
pass right-to-work laws.
– Labor-Management Reporting and
Disclosure Act: hot cargo-agreements, and
secondary boycotts.
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• 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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• Union Organization (cont’d).
–Union Election Campaigns: NLRB regulates
the rights and obligations of employers and workers
in the election process. Each side can pursue their
objectives, but cannot interfere, beyond certain
limits, in the other’s activities.
– CASE 29.3 Local Joint Executive Board of
Las Vegas v. NLRB (2008). What if the
managers had videotaped the meetings?
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• 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.
– Both labor and management must bargain in
good faith, but the law does not require that
they reach an agreement.
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• Strikes. There are two basic forms of
strikes:
–Economic Strikes: strikes over wages.
Workers can be replaced by permanent
replacements.
–Unfair Labor Practice Strikes: strikes
alleging that the employer has committed
an unfair labor practice.
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