Employment Law PDF

Employment Law ○ NOT INDEPENDENT CONTRACTS At will (as opposed to term employee - end date) doctrine employees can be terminated at any time without reason by either party ○ Harsher on employees Harsher on employed with exceptions ○ Contract theory - express (throug...

Employment Law ○ NOT INDEPENDENT CONTRACTS At will (as opposed to term employee - end date) doctrine employees can be terminated at any time without reason by either party ○ Harsher on employees Harsher on employed with exceptions ○ Contract theory - express (through language saying exactly what needs to be done to lose a job) and implied (through terms - employee’s reasonable expectations) ○ Tort theory - employee may file an Action for wrongful discharge if an employer improperly discharges an employee (Fired for parking in the wrong spot ) When discharge is deemed abusive can lead to employees filing a lawsuit International INfliction of Emotional Distress - INjury Defamation - lie Fraud ○ Public Policy - reporting employer's illegal activity or anything that puts the public at risk based on statutes (most common) and common law (correct and proper thing to do based on society) Whistleblowing statutes ADA FMLA OSHA Refusal to commit Unlawful Act Fulfilling a public obligation (jury duty) Exercising a Statutory Right ( Worker compensation when getting injured and they ask you not to report and fire you when you do) Whistleblowing in a state that does not have a whistleblowing statute Fair Labor Standards Act (FLSA) ○ All employers engaged in interstate commerce Child labor, minimum and maximum wages ○ Child Labor Restrictions: Child under 14 years: Only perform certain types of work like newspaper delivery, some ag, entertainment, working for parents Cannot be employed in hazardous jobs or jobs detrimental to health or well-being Working time and Maximum hour restrictions apply Children 14-15 years May work, but cannot be employed in hazardous jobs or jobs detrimental to health or well-being Working time and maximum hour restrictions apply Child 16-18th birthday May work, but cannot be employed in hazardous jobs or jobs detrimental to health or well-being  No restrictions on working times/max hours ○ Minimum wage: Federal: $7.25/hour (maybe higher minimum in states) ○ Overtime Normal working hours 40 hours a week - regular hourly wage Overtime- additional hours (beyond the 40) = 1.5 times the regular hourly wage Usually entitled to overtime ○ Any worker who earns less than $35,568 (including jobs not entitled to overtime) ○ Generally, hourly wage workers Not Usually entitled to overtime ○ If salary exceeds $35, 568 Executive Employees Administrative Employees Professional Employees Computer related employees Outside Sales Employees Overtime Test - for eligible employees: Employees worked overtime but were not paid for the overtime hours The employer knew or should have known employee worked overtime hours IF YOU EARN A SALARY (ON EXAM) GIVES AWAY THAT YOU WON’T EARN OVERTIME ○ The WARN Act Federal Law requires large employers (100+ employees) to provide a 60 DAY NOTICE prior to any: Mass layoff (affect 1.3 of employees) Plant closures that affect 50 or more full-time workers. Notice must be given to BOTH: ○ Worker (or worker’s representative) AND ○ State and local gov’t authorities ○ Layoffs: State laws Many states also have laws that require employers to give notice prior to mass layoffs - some state laws are more strict than the federal WARN act ○ Family and Medical Leave Act (FMLA) Federal Act that allowed employees to take time off from work for family or medical reasons Many states and employers also have private family leave plans. Coverage and applicability:  Employers with 50+ employees must provide up to 12 weeks of unpaid family or medical leave in any 12 month period for any employee who has worked for over 1 year. ○ Written notice for eligibility - notify employer The federal Employee Paid Leave Act (FEPLA), enacted in December 2019, offers many (though not all) FEDERAL EMPLOYEES up to 12 weeks of PAID leave for birth, adoption, or foster care placement of a child Military: ○ 26 weeks of military caregiver leave within a 12-month period if a family member is seriously injured or becomes ill as a result of active military duty. ○ 12 weeks of qualifying exigency leave to take care of non-medical emergencies when a family member is called into active duty ○ Question: 3 years after Robert began working for his current large private employer, Robert’s wife had a baby. Robert took off 8 weeks from work. Must Robert’s employer pay Reobert his regular salary during the time Robert took off? NO - private and paid is incorrect ○ What happens during FMLA Leave Not required to pay wages but must: Continue Health care Coverage After Leave, reinstate the employee to equivalent or better position (unless the employee is a “key employee” - pay fails within top 10% of employers workforce) ○ CEO can’t take 12 weeks off Violations Remedies employer can be required to provide: ○ Damages to compensate employees for lost benefits, compensation, and actual monetary losses ○ Job reinstatement ○ Promotion (if employer denied a promotion) ○ Court Costs and Attorney fees (if the employee wins suit) ○ 2x damage award if the employer engages in bad faith EMPLOYER MUST provide Notice when an absence will count as authorized FMLA Leave - must ask the employer and receive WRITTEN notice by the employer OSHA (Occupational Safety and Health Act) ○ Imposes DUTY on Employers to keep workplace SAFE!!! Establishes safety standards for various industries Hard hats, fire extinguishers, gloves, goggles, no smoking ○ An employer CAN NOT fire or discriminate against an employee who does not work because (s)he believes the workplace is unsafe ○ Reporting Requirements  Employers with 11+ employees must Keep records of every work-related injury or disease Every employer covered by OSHA MUST: Report any work-related death or 3+ hospitalizations within 8 hours of the incident Report any other inpatient hospitalizations, amputations, or loss of an eye within 24 hours. ○ inspections OSHA compliance Officers may inspect ANY establishment covered by OSHA Planned (Scheduled) Unannounced (Just walk right in - pop-in inspections) ○ Gives them no time to “clean up” State workers compensation ○ Laws that establish an administrative procedure for compensation of workers for injuries that arise in the course of employment Where does the money come from Employer may purchase insurance Employer may PAY CLAIMS (a form of self-insurance) ○ High risk - will probably go for state offices will go for OSHA Compensation Benefits: Existence of an Employment Relationship An accidental injury that occurred “on the job” or “in the course of employment,” regardless of fault. ○ Even with disregard for the statement from the employer Prompt Notice by an employee to ○ An employer (30 days) and ○ State (60 days to 2 years) Question: Bobby was hurt while commuting from home to work on Monday morning. Can Bobby claim workers’ compensation benefits for the injuries incurred? ○ No Commutes don’t count towards “time on the job” traveling representatives traveling home to buyer 1 is a commute but buyer 1 to buyer 2 to buyer 3 is on the job so buyer 3 to home is a commute Can only claim workers compensation when traveling between the buyers and not to/from home Question: Anuja was injured on the job. Her injury occurred because her employer and a coworker had been negligent. She has filed a state worker’s compensation claim and has begun receiving benefits but she also wants to file litigation against her employer to obtain additional compensation for her injuries. Will Anuja be permitted to file a lawsuit? ○ No Can only claim or sue, can’t do both  Workers’ Compensation v. Litigation ○ Injury through employer’s negligence If the employee accepts workers’ compensation, the employee MAY NOT sue for injuries caused by the employer’s negligence Conversely, employers may not claim traditional defenses to negligence like claims that the employee assumed the risk or was contributorily negligent Health, safety, income security, and Privacy ○ Federal and/or state insurance programs that help employees (and families) during critical life-changing events: Retirement Disability Death Hospitalization Unemployment Social Security ○ A federal program that provides retirement benefits, survivors’ benefits, and disability insurance Question: Yong is employed by Fickle Corp, Who pays into the social security system to make sure Yong is eligible to receive benefits when he is 67? Both Yong and Fickle Corp ○ Yong both paid in and was 67 years old ○ How is it funded? FICA (Federal Insurance Contributions Act) Mandatory contributions: ○ Both employers and employees must contribute ○ Self-employed persons must also pay the tax Funded: Employees ○ Paycheck is Taxed at 6.2% Maximum taxable earnings cap: $168,600 Wage base for 2024 Employer ○ Matches the tax paid by the employee This means the tax is technical 12.4% but it is just split) Self-Employed ○ Must pay self-employment tax to fund SS ○ 12.4% tax on all earnings up to “wage base” ○ Eligibility: You must earn credits  The number of credits required for eligibility varies with age and type of benefit, but MOST people need 40 credits to qualify for Social Security benefits and be 67 years old As of 2024, every $1,730 in earnings earns one credit. You can earn a maximum of 4 credits per year. Medicare ○ Federal Health Insurance program and need 40 credits and be 65 years old ○ Eligibility: If you or your spouse is eligible to receive Social Securit benefits AND you are 65 years or older OR Under 65 if you have certain disabilities Additional categories (not covered in this class) ○ How is it funded: Both employee and employer must contribute 1.45% and 2.9% if you are self-employed No cap ceiling for wages taxed - your entire modified adjusted gross income (MAGI) is taxed High-income earners must pay an additional tax on all earnings over $200,000 (employer DOES NOT PAY this) ○ Basic Programs Part A: Hospital Insurance Automatic for most people if individual or spouse worked (paid by the medicare taxes) Part B: Medical Insurance: Must pay premium Part C: Medicare Advantage Permits you to opt to receive all your healthcare services through a provider organization You must opt-in, and most plans require you to PAY Part D: Prescription Drug Coverage You must opt-in; plans are paid for by monthly premiums Total Contributions by each for Social Security tax and Medicare ○ Employee Contribution is Basic: 7.65% PLUS additional tax on all income above $200,00 wage base ○ Employer Contribution is Basic: 7.65% ○ Self-Employed Pays: 15.3% for basic plus additional tax on all income above $200,000 wage base ( 12.4% for ss and 2.9$ for medicare and the additional tax on earnings above $200,000) Medicaid ○ State program (rule vary) ○ Eligibility: generally for low-income individuals (below the poverty line) Question: True or False: All employers are required to provide retirement plans  ○ False Private Retirement Plans ○ Employers are NOT required to establish private retirement plans (like pension plans, 401 (k) plans, etc.) but if an employer establishes a private retirement plan, the plan must comply with a federal act (law) called ERISA (Employee Retirement Income Security Act) ○ ERISA = Management standards for private retirement plans Record keeping Investment fo funds Vesting (most common rules are below) Employee contributions vest immediately Employer contributions vest after 5 years Pension Benefit Guaranty Corporation Private Pension Plans ○ Pension Benefit Guaranty Corporation (PBGC) Independent federal agency created through ERISA legislation Goal: to provide “timely and uninterrupted” payment of private pension plan benefits HOW? PBGC collects annual insurance premiums paid by the pension plans Insurance pays benefits IF the plan becomes unable to pay Unemployment insurance ○ Is a system created by the FUTA (Federal Unemployment Tax Act) administered by the states ○ Benefits, eligibility requirements, and length of time during which you can collect benefits vary by state ○ Generally who is eligible Those who have lost jobs due to no fault of their own Loay offs, office closure, termination of your position Must meet requirements for wages earned or time worked during the one-year period Must claim benefits within x months of loss of job Must remain willing, able, and available to work You must actively search for work or pursue education or training Resumes, Linkedin, actively in search ○ Where does that insurance money come from? Employers that are covered are taxed To pay the tax, your employer will deduct a portion of the tax from your paycheck Self-employed individuals are usually not entitled to unemployment benefits unless their business paid employment taxes ○ COBRA Entitles employee who have lost jobs to continue health care coverage under the employer’s health plan for up to 18 months  The employee is eligible if he is fired OR if he quits UNLESS the employee is fired for “gross misconduct” Employees must pay ALAL health plan premiums Use to pay half and employer pay half - now you pay full Employer-sponsored group Health plans and HIPAA (Health Insurance Portability and Accountability ACT) ○ Establishes administrative requirements employer health care plans must meet ○ Mandatory policies and procedures to protect the privacy and security of employee's private health information ○ Employer failure to comply with HIPAA Civil penalties: up to $25,000/year Criminal Penalties: Up to $250,000 in fines Imprisonment for up to 10 years Employee Privacy Rights ○ More than 50% of all employers engage in employee surveillance ○ Reasonable Expectations of Privacy: Balancing Test On one end Employer’s Interest in Monitoring and Employee’s Reasonable Expectation of Privacy on the other ○ EPCA (Electronic Communications Privacy At) Prohibits interception and disclosure of wire, oral, or electronic communications without employee CONSENT Bust the Business Extension Exception to the ECPA states that the act Does not apply to any communications through devices owned or provided to the employee for business use Notice required (not consent) ○ An employer may monitor communications through employer-owned/provided devices without employee consent as long as employer notifies the employee of monitoring First amendment free speech protection - only applies to government employees Other types of monitoring Lie detector tests Drugs tests ○ Lie detector tests (Employee Polygraph Protection Act (EPPA) Most Private employers with 2+ employees and $500,000 in business: Not permitted to require or request that employee or applicant take a lie detector tests Private companies exempt: Security companies Manufacture and contribute controlled substances Investigating threats (including embezzlement and theft of trade secrets)  All public employers are exempt from EPPA and my require lie detector tests ○ Drug testing Private employers Is governed by state law Generally, testing must simply be “reasonable” random tests are ok Public Employers: Fourth amendment to the US constitution applies and prohibits “unreasonable searches”, so drug testing is limited By federal statute, drug test ing is permitted in limited circumstances including: ○ Transportation industris ○ If drug use in a particular job may threaten public safety ○ If there is a “reasonable basis” to suspect the government employee is using drugs