Unit 7 Discussion 7

CHAPTER 19

MANAGEMENT OF EMPLOYEE WELFARE

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LECTURE OUTLINE

Use opening CONSIDER 19.1 to pique students' interest.

See Exhibit 19.1 and PowerPoint Slide 19-1 to summarize existing federal laws on employee welfare.

19-1 Wages and Hours Protection

19-1a The Fair Labor Standards Act (FLSA) (See PowerPoint Slides 19-2, 19-3, and 19-4)

· Often Called “The Minimum Wage Law”

· Coverage

· Businesses engaged in interstate commerce

· Businesses engaged in production of goods to be shipped in interstate commerce

· Businesses engaged in interstate shipping

· Expanded to cover business enterprises with gross income of $362,500 or more

· Exemptions

· Independent contractors

· Agriculture, fishing, and domestic service

· White‑collar management

· Executive, administrative, and professional people

· FLSA minimum wage and overtime regulations

· Graduate increases in minimum wages

· Time-and-one-half pay for overtime (over 40 hours)

· White collar, professional, administrative employees are exempt

· New rules have created a great deal of ambiguity

· Under new Department of Labor regulations, applies to employees who work 40 hours/week and earns $47,476/year or less

FOR THE MANAGER'S DESK – HOW UBER, LYFT, HOME HEALTH CARE, AND NEW BUSINESS MODELS ARE CHANGING EMPLOYMENT LAW: Discuss IRS standards and the types of factors that influence independent contractor status and multiple-employer situations.

· FLSA and Child Labor Provisions (See PowerPoint Slide 19-5)

· Age 18 and over – any jobs

· 16‑17 – any nonhazardous job (hazardous – mining, logging, roofing, excavation)

· 14‑15 – any nonhazardous, nonmanufacturing, and nonmining job during nonschool hours; limits on hours

· Recordkeeping – employers must keep records of hours and wages; fines for not doing so

· Child actors are subject to strict Screen Actors Guild rules

FOR THE MANAGER'S DESK – MANAGING AND PAYING INTERNS: Discuss with the students the various holdings and combine the discussion with the ethical issues. Some questions to ask on these two features:

Why do internships exist?

What are the benefits for the company?

For the students?

What about internships for academic credit?

What about the long hours?

What effect will the litigation have on internships going forward?

· Enforcement of FLSA (See PowerPoint Slide 19-6)

· Can begin by complaint filed with U.S. Labor Department

· Employer can seek interpretation from Department of Labor

· Labor Department can initiate its own investigation

· Penalties for FLSA Violation (See PowerPoint Slide 19-7)

· Fines – $10,000 first conviction

· $10,000 and/or six months for second violation

· Employees can't be fired for reporting violations

· Liability for FLSA Violation

· Corporation is liable

· Officers can be held individually liable

See PowerPoint Slide 19-8.

CASE BRIEF 19.1

Chao v. Hotel Oasis, Inc.

493 F.3d 26 (1st Cir. 2007)

FACTS: Hotel Oasis, Inc. operates a hotel and restaurant in southwestern Puerto Rico. Dr. Lionel Lugo-Rodríguez (Lugo) is the president of the corporation, runs the hotel, and manages its employees. Oasis's records show that between October 3, 1990 and June 30, 1993, employees were paid less than minimum wage, were not paid for training time or meetings held during non-working hours, were paid in cash “off the books,” and were not paid correctly for overtime. Oasis also maintained two sets of payroll records for the same employees, covering the same time periods, one showing fewer hours at a higher rate, and the other showing more hours at a sub-minimum wage rate. Lugo maintains that the two sets of books were necessary, one for temporary employees and one for permanent employees.

On April 5, 1994, the Secretary of Labor (the “Secretary”) filed a complaint in the United States District Court for the District of Puerto Rico against Oasis and Lugo (“Defendants”), alleging violations of the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act (“FLSA”). The Secretary also sought liquidated damages.

After years of litigation, On June 21, 2005, the district court ordered Oasis to pay $141,270.64 in back wages and an equal amount in liquidated damages to 282 current and former employees. The court also found Lugo personally liable for the back wages and penalties. Lugo and Oasis appealed.

ISSUE ON APPEAL: Was a finding of an FLAS violation correct? Can an officer be held liable for such violations?

DECISION: Yes. Oasis and Lugo are both liable. The violation was willful, as evidenced by the two sets of books. Also, Lugo was in a position of control. He was an owner and did much of the managing. Under those circumstances he would be personally liable. Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” The First Circuit has followed the Supreme Court's lead in interpreting this definition pursuant to an “economic reality” analysis. Accordingly, there may be multiple “employers” who are simultaneously liable for compliance with the FLSA.

19-1b The Equal Pay Act of 1963 (See PowerPoint Slide 19-9)

· Illegal to pay different wages to men and women doing the same jobs

· Equal Pay Act is not a comparable worth statute

· Comparable worth requires equal pay for jobs that require equal skill, effort, and responsibility

· Test case came from Washington when a licensed practical nurse discovered she earned less than the groundskeeper at a state hospital and less than men doing similar jobs in the prisons; trial judge found discrimination and ordered back pay but decision was later reversed

· Presently, federal standards do not require comparable worth

· Merit and seniority systems are exceptions

19-2 Workplace Safety

19-2a The Occupational Safety and Health Act (See PowerPoint Slide 19-10)

· Passed to ensure workplace safety precautions

· OSHA was agency created to enforce it

· OSHA coverage and duties (See PowerPoint Slide 19-11)

· Employers covered – all with one or more employees

· Basic responsibilities

· Know and follow OSHA's rules

· Inspect for hazards and correct them

· Post employee rights

· Keep records of injuries

· Post OSHA citations

19-2b OSHA Responsibilities (See PowerPoint Slide 19-12)

· Promulgating rules and safety standards

· Can award variances for certain employers

· Inspections

· Have targeted industries (roofing, lumber)

· Also have random inspections

· Cannot retaliate against employee who notifies OSHA and requests an inspection

· OSHA search warrant requirement

· Either voluntary or require warrant

· Surprise element still preserved even with warrant

· Employees can accompany an OSHA inspector

· Employees can file complaints

· Right to notice if employer applies for variance

· OSHA penalties

· See Exhibit 19.2 and PowerPoint Slides 19-13 and 19-14 – fine and imprisonment escalate with seriousness of violation

· Citation is first step

· Many employers negotiate a consent decree after a citation

· If no consent decree, there is a hearing before an administrative law judge (ALJ)

· ALJ makes recommendations and OSHRC decides

· Can then appeal to a court

· State OSHA programs (See PowerPoint Slide 19-15)

· States share responsibility for safety with feds

· Secretary of Labor must approve state’s plan

19-2c Employment Impairment and Testing Issues (See PowerPoint Slide 19-16)

If safety is an issue, U.S. Supreme Court has authorized testing

19-3 Employee Pensions, Retirement, and Social Security

19-3a Social Security

· Social Security Act of 1935 (See PowerPoint Slide 19-17)

· Every employee, who is not an independent contractor, contributes to Federal Insurance Contributions Act (FICA)

· Benefits under Social Security depend on work and salary range

FOR THE MANAGER'S DESK – THE GIG ECONOMY START-UPS: PUMPING THE BRAKES ON INDEPENDENT CONTRACTORS AND MOVING TO EMPLOYEES: Discuss the trade-offs in the piece – higher compensation, but no benefits and no FICA paid in. Less regulation, more control over your income; deductibility of expenses – less stability; termination is easier. Flexibility for employees is higher. It is difficult to impose the old business regulatory model on what has become a very different business and economic structure.

19-3b Private Retirement Plans (See PowerPoint Slides 19-18 and 19-19)

· Employment Retirement Income Security Act (ERISA)

· Coverage of ERISA: applies to employers in interstate commerce

· Applies to medical, retirement, or deferred income plan

· Requirements under ERISA

· Must give employees an annual report

· Must disclose loans made from the fund

· ERISA does not require pension plans; it only regulates employers who offer them; levels of responsibility have caused some employers to drop the plans

· Employee rights under ERISA: get vesting rights in their pensions

· FASB 106, Retirees and Pensions – Requires corporation to expense cost of benefits for retired employees

· Pension Protection Act of 2006 (See PowerPoint Slide 19-20)

· Imposes new funding requirements

· New disclosure requirements

19-3c Unemployment Compensation (See PowerPoint Slide 19-21)

· Benefits provided

· States determine amount

· States’ rules on minimum and maximum

· States’ rule on length

· Qualifying for benefits

· Must have been involuntarily terminated

· Must be able and available for work

· Must be seeking employment

19-4 Workers’ Compensation Laws

· Compensation for Work‑Related Injuries

· Principles of Workers’ Compensation (See PowerPoint Slides 19-22 and 19-23)

· Employees injured in scope of employment are covered

· Fault is immaterial

· Independent contractors are not covered

· Benefits include expenses, lost wages, and injury compensation

· Employees do not have right of common law suit

· Third parties can be sued to indemnify employers

· Administrative agency handles program

· Every employer must carry insurance or be self‑insured

19-4a Employee Injuries (See PowerPoint Slide 19-24)

· Primarily accidental injuries covered

· Definition has been expanded

· Back problems from lifting

· Medical problems – heart attacks and nervous breakdowns

· Stress

· Co-worker injury

· Covered if arises in scope of employment

· Issue of rape is a problem; employer can be sued for the failure to screen employees adequately

19-4b Causation and Worker's Compensation

19-4c Fault is Immaterial

In workers’ comp fault is immaterial (employee can even disobey instructions and be compensated)

19-4d Employees versus Independent Contractors

Independent contractors are not covered

19-4e Benefits (See PowerPoint Slide 19-25)

· Lost wages

· Medical expenses

· Disability benefits

· Partial disability – listed on schedule by rate

Example: 50 percent of wages

· Total disability – generally 2/3 of salary

· Unscheduled injuries are determined by board

· Death benefits paid to family

19-4f Forfeiture of the Right to Suit

Benefits in lieu of suing employer

19-4g Third-Party Suits (See PowerPoint Slide 19-26)

Can sue product manufacturers, other third parties, but recovery must first go to reimburse employer

19-4h Administrative Agency

Each state has an administrative agency for administration of benefits and insurance

19-4i Insurance

· Employers must have some form

· Self-insurance

· Private insurance

· State fund insurance

See PowerPoint Slide 19-27.

CASE BRIEF 19.2

Hopkins v. Uninsured Employers' Fund

251 P.3d 118 (Mont. 2011)

FACTS: Great Bear Adventures (the Park), is located near West Glacier, Montana. Visitors to the Park enjoy a drive-thru experience of bears in their natural habitat. Russell Kilpatrick owns the Park and lives on adjacent property. Brock Hopkins began working there in 2002, doing various tasks, including maintenance and feeding the bears. In the past, some workers have been known to smoke marijuana on the premises. Although Kilpatrick professed to not condone marijuana use by workers, testimony established that he had smoked marijuana at the Park in the past, and on occasion had done so with Hopkins.

On November 2, 2007, Hopkins smoked marijuana on his way into work. When he arrived, Kilpatrick told Hopkins to raise the boards on the Park's front gates so they would not freeze to the ground. Hopkins asked Kilpatrick if he should feed the bears as well. Testimony regarding Kilpatrick's answer conflicted. However, the Workers’ Compensation Commission (WCC) ultimately found that Kilpatrick never told Hopkins not to feed the bears.

After completing work on the gates, Hopkins returned to Kilpatrick's house. Kilpatrick was asleep inside. Hopkins mixed food for the bears and used Kilpatrick's truck to drive into the Park. He entered the bears' pen and began to place food out. At some point while Hopkins was working, the largest bear, Red, attacked him. The bear knocked Hopkins to the ground, sat on him, and bit his leg, knee and rear-end. While this was occurring, another bear, Brodie, came up from behind, and bit Red. In response, Red moved off of Hopkins momentarily, and Hopkins escaped by crawling under one of the electrified wires surrounding the pen. Kilpatrick eventually found Hopkins, and he was transported to the hospital by helicopter. He suffered severe injuries.

Kilpatrick did not carry workers' compensation insurance. Hopkins petitioned the WCC for workers' compensation benefits from the Uninsured Employers' Fund. Both the Uninsured Employers' Fund and Kilpatrick opposed Hopkins' petition.

DECISION BELOW: The WCC found for Hopkins, concluding that (1) Hopkins was employed by Kilpatrick at the time of Hopkins' injuries, (2) Hopkins was in the course and scope of his employment at the time of his injuries, (3) marijuana use was not the major contributing cause of Hopkins' injuries, and (4) Hopkins was not performing services in return for aid or sustenance only. Kilpatrick appealed.

ISSUES ON APPEAL: (1) Whether Hopkins was employed by Kilpatrick at the time of Hopkins' injuries, (2) whether Hopkins was in the course and scope of his employment at the time of his injuries, (3) whether marijuana use was not the major contributing cause of Hopkins' injuries, and (4) whether Hopkins was not performing services in return for aid or sustenance only. Affirmed.

19-4j Problems in Workers’ Compensation Systems (See PowerPoint Slide 19-28)

· Extent of injuries covered

· Fraud

· Nature of injuries changing from manufacturing injuries to stress, heart disease, and repetitive motion

· Long-term hazards

· Relationship between Americans with Disability Act and workers’ compensation

19-5 Statutory Protections of Employees Through Labor Unions

History and Development of Labor Legislation (See PowerPoint Slide 19-29)

19-5a Norris‑LaGuardia Act of 1932 (Anti‑Injunction Act) (See PowerPoint Slide 19-30)

· Stopped federal courts from issuing injunctions to stop union strikes

· Some exceptions:

· Violence

· Lack of control – harm to public

19-5b The Wagner Act

· National Labor Relations Act (NLRA) of 1935

· Gave employees the right to unionize

· Prohibited employers from firing or discriminating against union members

· Established NLRB

· Created to conduct union election

· Created to remedy unfair labor practices

19-5c The Taft‑Hartley Act: The Labor-Management Relations Act of 1947 (See PowerPoint Slide 19-31)

· Lists unfair labor practices for unions

· Addresses secondary boycotts

· Provides president with authority to have prestrike cooling‑off period when public health and safety are at issue; has been used in coal and transportation strikes

19-5d The Landrum‑Griffin Act: The Labor Management Reporting and Disclosure Act of 1959 (See PowerPoint Slide 19-32)

· Regulates union officials

· Gives union members a bill of rights

· Establishes penalties for misconduct

19-5e Union Organizing Efforts and Social Media

19-5f Employers are Accountable for Employee Electronic Content (See PowerPoint Slide 19-33)

· Employers are responsible for what employees post – privacy and harassment issues arise

· What employees write can be used to build a case against the company on issues – as with Standard & Poor’s problems with analysts and ratings

19-5g Employer Monitoring: What is Legal?

· Electronic Communications Privacy Act of 1986 (See PowerPoint Slide 19-34)

· Prohibits unauthorized access of “live” communications

· Question is whether e-mail would be stored communication and not live communications

· Stored Communication Act

· Prohibits the unauthorized interception of electronic communications – generally means stored information

· Does not cover ongoing communication – Tweeting, etc.

· Courts have consistently held that employees give consent to monitoring by their employers

See PowerPoint Slide 19-35.

BUSINESS PLANNING TIP (Social Media Policies): Go over the tips on what employers should know about social media policies.

19-5h Employers’ Right of Access to Employee E-Mails (See PowerPoint Slides 19-36 and 19-37)

· Employers can monitor

· Generally employees are required to sign a statement acknowledging employer right of access

· Covers e-mails marked private, etc.

· Covers use of personal devices for work e-mail

19-5i E-Mail and NLRA Issues

19-5j The Unionization Process

· Right to unionize

· Selecting a union (See PowerPoint Slide 19-38)

· Once selected, union represents all employees

· Collective bargaining unit determined

· Can be a plant

· Can be workers doing same job in a company

· NLRB decides based on:

· Type of union

· Duties, wages, and skills of employees

· Relationship to employer

· Wishes of employees

· Petition, cards, and vote

· Petition for union representation filed

· Must be supported by signed, dated authorization cards from 30 percent of unit

· Cards must be signed willingly

· Election: NLRB monitors

· Restrictions on what employer can do just prior to election and during campaign

· Unions are subject to reasonable employer rules

See PowerPoint Slide 19-39.

CASE BRIEF 19.4

United Food and Commercial Workers Union Local 24 v. NLRB

506 F.3d 1078 (D.C. Cir. 2007)

FACTS: In March, 1999, United Food and Commercial Workers’ Union (UFCW) attempted to organize a Smithfield Foods meatpacking plant in Wilson, North Carolina. After a three-month campaign, the union lost the election.

The union filed a series of unfair labor practice charges against Smithfield, alleging that the company’s antiunion campaign had tainted the election. An administrative law judge (ALJ) found that Smithfield executives violated NLRA section 8(a)(1) by threatening to close the company’s Wilson plant if workers unionized.

DECISION BELOW: On review, the NLRB found for Smithfield on the issues of threatened plant closure. The union appealed the NLRB’s dismissal of the unfair labor practice charges.

ISSUE: Were the statements made by Smithfield an unfair labor practice?

DECISION: The court held that the statements were not untrue or unfair and were within the scope of management’s ability to respond to proposed unionization.

19-5k Union Contract Negotiations (See PowerPoint Slides 19-41 and 19-42)

· Try to get employer contract – collective bargaining agreement

· Good faith bargaining required – 8(d) of NLRA

· Subject matter of good-faith bargaining

· Mandatory or compulsory subject matters

· Wages

· Hours

· Overtime

· Vacation

· Leaves

· Pay days

· Insurance

· Pensions

· Seniority

· Two‑tier wage structure has been an issue in sports and air pilots’ negotiations

See Exhibit 19.3 and PowerPoint Slide 19-43 for list of usual topics in collective bargaining.

· Permissive subjects for collective bargaining

· Strike roles

· Not unfair to refuse to bargain it

· Cannot bargain away statutory rights

Example: Cannot agree to have a closed shop (refusing to hire nonunion people)

· Failure to bargain in good faith

· Constitutes an unfair labor practice

· Can be the basis of a charge and complaint

· Cover e-commerce and the use of e-mail for organizing

19-5l Protected Concerted Activities (See PowerPoint Slide 19-44)

· Union Economic Pressure

· NLRA gives union right to engage in concerted activities

· Public advertisements – permitted

· Picketing – legal

· The strike – legal economic weapon

· The shareholders

· Unions have contacted shareholders for clout

· Allowed shareholders to bring public attention to the issues

19-5m Unfair Employee Practices (See PowerPoint Slide 19-45)

· Slowdown

· Not a strike or stoppage

· Employees refuse to do certain work or use certain equipment

· Featherbedding

· Payment for work not actually done

· Unfair labor practice

19-5n Employer Rights (See PowerPoint Slide 19-46)

Freedom of speech: can explain their position to employees (See Exhibit 19.4 and PowerPoint Slides 19-47 and 19-48, “Management Do’s and Don’ts”, to explain what can and cannot be done)

19-5o Right‑to‑Work Laws

· Prohibit closed shops

· Shops requiring union membership

19-5p Economic Weapons of Employers (See PowerPoint Slides 19-49 and 19-50)

· Plant and business closings

· Congress has passed a plant closing law

· Many state and local governments have them as well

· Laws require notice and time frame before plant is closed

· Designed to eliminate shock to local economy

· Federal law is the Worker Adjustment and Retraining Notification Act of 1988

· Applies to employers with 100 or more workers

· Must give 60 days advance notice of closing that will affect 50 or more workers

· Must give 60 days notice of layoff that will affect 1/3 or more of work force for six months or more

· Some exceptions such as unforeseeable circumstances and seasonal businesses and construction

· Penalties include back pay and benefits and fines of $500 per day for each day notice not given

· Cannot use temporary closing or send work away (runaway shops)

· Plant flight – legal if there are economic reasons for transferring work

· Lockout – legal for economic reasons; legal to prevent strike but not to prevent union certification

· Conferring benefits – a violation if done temporarily

· Bankruptcy – legal

See Exhibit 19.5 and PowerPoint Slides 19-51 and 19-52 to summarize weapons and rights of employers and employees.

19-6 International Issues in Labor

19-6a Immigration Laws (See PowerPoint Slide 19-53)

· Immigration and Naturalization Act

· Immigration Reform and Control Act of 1986

· Illegal Immigration Reform and Immigrant Responsibility Act of 1996

· Antiterrorism and Effective Death Penalty Act

· Increased types and numbers of crimes that were grounds for deportation

· Decreased defense to deportation

· Department of Homeland Security has reported an increase in deportation

· Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) (See PowerPoint Slide 19-54)

· Homeland Security Act of 2002

· Created Department of Homeland Security

· Immigration controlled here

· Toughened security checks

· Require more employer vigilance on I-9s and hiring immigrants

· American Competitiveness in the Twenty-First Century Act of 2000

· Restrictions on laying off U.S. workers

· 90-days after hiring immigrants

FOR THE MANAGER’S DESK − THE HIGH COST OF THE FAILURE TO COMPLY WITH U.S. IMMIGRATION LAWS: Discuss with the students the costs to the company of not following immigration law and taking action to make sure their employees’ documentation was in order. Discuss the economic issues behind the managers’ decisions and actions. Discuss how criminal liability for the managers is possible.

· American Competitive and Workforce Investment Act of 1998

· American Competitiveness in the Twenty-First Century Act of 2000

19-6b Working Conditions and International Labor Law (See PowerPoint Slide 19-55)

· Moving to arbitration – Labor Management Cooperation Act – mediation as an alternative

· Moving to international plants to avoid labor problems

· Teams approach by companies has effect of mixing labor and management; breaks down union segregation

· Foreign wage competition has moved jobs to Mexico

19-6c Sample International Standards

· International Covenant on Economic, Social, and Cultural Rights

· International Labour Organization (ILO)

· National Labor Committee (NLC)

19-6d The Risks of International Suppliers

· Quality of goods produced

· Safety issues in production plants

· Wage issues in production plants

19-6e New Trends in Managing International Wage and Safety Standards

· The issues of sweatshops, Nike, and the new code of labor standards

· Discuss with students the imposition of ethical standards of retailers onto sellers through pressure from customers (who perhaps don’t want to pay more). The image-sensitive retailers are held captive to an agenda and forced to change.

· Discuss the proposed code

· Discuss U.S. Department of Labor standards

BIOGRAPHY: KILLER WHALES, WORKPLACE SAFETY, AND UNENDING LITIGATION

Have the students make a list of all the types of suits SeaWorld has faced and have them think about the costs of those suits. Discuss their views on whales in captivity. Discuss the issue of the release of the video tape that showed the death of the trainer. Did public pressure cause SeaWorld to change its business model?

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