Chapter 17: Employment,
Immigration, and Labor Law
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Introduction
 Historically, employment law was
governed by the common law doctrine
of “employment at will.”
 Today employment law is heavily
regulated by state and federal statutes.
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Employment at Will
 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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Employment at Will
 Exceptions to the Employment At Will
Doctrine:
• Based on Contract Theory: is there an
implied employment agreement? What
about oral promises from employer?
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Employment at Will
 Exceptions to At Will (cont’d):
• Based on Tort Theory: termination may
give rise to wrongful discharge claims.
• Based on Public Policy:
• Requirements: Must be clearly stated in
statutes governing that jurisdiction.
• Whistleblowing and Public Policy. 
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Employment at Will
 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-Hour Laws
 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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Wage-Hour Laws
 Child Labor.
• FLSA prohibits oppressive child labor
practices.
 Minimum Wage Requirements.
• 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 and Hour Laws
 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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Wage and Hour Laws
 Overtime Provisions and Exemptions.
• Exemptions: FLSA overtime exemptions
do not apply to manual laborers, nurses,
police, firefighters, and other public
safety workers. ‘blue collar’ workers.
• CASE 17.1 SMITH V. JOHNSON AND JOHNSON
(2010). What factors did the court use to
determine Smith’s status?
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Layoffs
 Worker Adjustment and Retraining
Notification Act: 60 day notice before a
‘mass layoff’ during 30 day period, which
results in workforce 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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Layoffs
 Worker Adjustment and Retraining
Notification Act (continued).
• Notification Requirements.
• Remedies for Violations.
 State Laws May Also Require Layoff
Notices.
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Family and Medical Leave
 Coverage and Application: FMLA
requires employers with over 50
employees to provide 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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Family and Medical Leave
 Benefits and Protections:
• Employer must continue worker’s health
care on same terms. Worker must be
restored to position upon return to work
(unless it’s a “key” employee).
 Violations of the FMLA.
• Damages.
• Job reinstatement, and
• Promotion (if lost).
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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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Worker Health and Safety
 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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Income Security
 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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Income Security
 Private Pension Plans.
• ERISA does not require employers to setup
pension plans, but provides rules on
management and investment.
• Vesting.
 Unemployment Compensation.
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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
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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Employee Privacy Rights
 Electronic Monitoring in Workplace.
• Employee Privacy Protection: is there an
employee expectation of privacy?
• ECPA: “business-extension exception”
allows employer to monitor.
• Stored Communications.
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Employee Privacy Rights
 Other Types of Monitoring.
• Lie-Detector Tests: Employee Polygraph
Protection Act exempts government,
security, and controlled substance firms.
• CASE 17.2 NASA V. NELSON (2011). What
privacy law did Nelson claim NASA was
violating?
• Drug Testing.
• Genetic Testing.
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Immigration Law
 Immigration Reform and Control Act.
• IRCA makes it illegal to hire, recruit, or
refer for a fee, someone not authorized
to work in the U.S.
• I-9 Verification: for new hires.
• Enforcement: by I.C.E.
• Penalties. 
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Immigration Law
 Immigration Reform and Control Act.
• Penalties.
• Criminal Actions: ICE can seek criminal
punishments.
• Penalties for employers.
• Mitigation or Aggravated 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.
Labor Certification.
H-2, O, L, and E Visas.
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Labor Unions
 Federal Labor Laws.
• Norris-LaGuardia Act: protects peaceful
strikes by limiting the injunction powers
of federal courts.
• National Labor Relations Act: established
the right of workers to strike and
engage in collective bargaining.
• Established NLRB.
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Labor Unions
 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,
secondary boycotts.
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Labor Unions
 Union Organization.
• Preliminary Organizing.
• Workers sign authorization cards.
• Cards can justify an election.
• Union Elections.
• Must represent an “Appropriate Bargaining
Unit”: mutuality of interest among all
represented workers, job similarity.
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Labor Unions
 Union Organization.
• Union Election Campaigns.
• An election can be held only if it can be
shown that at least 30% of the workers
will be represented.
• Key Restraint on management is
nondiscrimination rule (cannot
selectively prohibit union solicitation).
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Labor Unions
 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. 
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Labor Unions
 Union Election Campaigns.
• CASE 17.3 LOCAL JOINT EXECUTIVE BOARD
OF LAS VEGAS V. NLRB (2008). Were the
activities of Ms. Sapien and Ms. Briand
‘illegal surveillance’ that violated the
National Labor Relations Act?
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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.
• 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
 Collective Bargaining.
• Terms and Conditions of Employment:
• Pay, Safety conditions, Insurance, Pensions.
• Closing or Relocating a Plant: Severance
Pay.
• Management must bargain over the
economic consequences of moving.
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Labor Unions
 Strikes: two forms.
• Economic Strikes.
• These are strikes over wages.
• Workers can be replaced by permanent
replacements.
• Unfair Labor Practice Strikes.
• Alleging the employer has committed an
unfair labor practice.
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Labor Unions
 Strikes.
• Right to Strike: guaranteed by NRLA.
• Illegal Strikes.
• Secondary Boycotts.
• Common Situs Picketing.
• Hot-Cargo Agreements.
• Wildcat Strikes.
• Strikes that Threaten National Health or
Safety.
• Strikes that Contravene No-Strike Clauses.
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Labor Unions
 Strikes.
• Rights of Strikers After Strike Ends.
• Generally, an employer has the right to
permanent replacements (striking workers
are not guaranteed a job).
• But if the employer has not hired
replacements, then it must rehire the strikers
to replace open positions.
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Labor Unions
 Lockouts.
• Occurs when the employer shuts down to
prevent employees from working.
• When an employer believes a strike is
imminent.
• Lockouts may be a legal employer
response.
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Labor Unions
 Unfair Labor Practices.
• Employer’s Refusal to Recognize Union
and Negotiate.
• Presumption of Employee Support.
• Questions of Majority Support.
• Employer’s Interference in Union
Activities.
• No threats, or even asking employees about
their views.
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Labor Unions
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