Labor & Employment Law

Practice Overview

Labor and Employment Law covers two broad aspects of the employer/employee relationship. “Labor Law” is the part of the Practice Area that applies when two or more employees organize for their mutual benefit in employment (concerted activity) usually involving a labor union, and the interaction between labor unions and employers (collective bargaining, strikes, picketing), and the interaction between labor unions and their members (benefit plans, dues, membership issues). “Employment Law” is the part of the Practice Area covering everything else involved in the employer/employee relationship.

Labor Law

“Labor Law,” at its heart, involves labor unions and their interaction with employers. The National Labor Relations Act (NLRA) regulated the relationship between employers and labor unions. The NLRA generally covers all private sector employers (except those in the railroad and airline industries), and does not cover public sector employees (except the quasi-private United States Post Office). The federal government enforces the NLRA through the National Labor Relations Board (NLRB). The NLRB is governed by a five member Board and a General Counsel, all appointed by the President with the consent of the Senate. The Office of the General Counsel acts as a prosecutor, appearing before administrative law judges in 26 different regions spread throughout the country. The Board has appellate review. Decisions and orders of the NLRB in the form of injunctions can be enforced though the Federal District Courts.

The trigger for coverage of an employer/employee dispute under the NLRA is “concerted activity.” Concerted activity is when two or more employees engage in an effort to promote or protect their terms or conditions of employment. The concerted activity usually addressed by the NLRB in enforcing the NLRA comes in the form of organizing a union, and once there is a union representing the employees in place, comes in the form of addressing disputes between the union and the employer.

Public sector employees generally have limited rights to organize. However, many states and territories have enacted statutes to provide protection to public sector employees who want to organize.
The following are some basic terms and concepts associated with Labor Law and is intended as a very general overview:

1. Organizing (Union Elections)

One of the NLRB’s chief responsibilities is the holding of elections to permit employees to vote on whether they want to be represented by a labor union. Workers also have the ability to “decertify” (vote out) an already recognized or certified union as well, and the NLRB conducts decertification elections.

To obtain an election conducted by the NLRB, the union must file a petition supported by a “showing of interest” from at least thirty percent of the employees in the group that the union proposes to represent (the “bargaining unit”). Generally, a union will seek to represent all of the employees of the company that can be lawfully represented by a union, but sometimes a union will only seek to represent a limited group of employees at the business (for example a truck driver’s union may seek to represent all truck drivers at a large retail chain of stores and not sales staff or other employees of the retail chain). Unions cannot represent certain categories of employees; management employees and security guards are excluded from bargaining units.

Unions typically use authorization cards, individual forms in which a worker states that he or she wishes to be represented by the union, as evidence of the showing of interest. The cards must be signed and dated within six months of the union’s filing the petition to be valid. However, a union may try to persuade the employer to recognize the union directly, by presenting the cards to the employer without filing the petition, and an employer can recognize a union without an NLRB conducted election.

Employers have free speech rights and can campaign against a union before the election. Unions and employees also have free speech rights, even on the employer’s property. However, there are “no solicitation” policies and rules an employer can implement that if done right, will restrict the campaigning that can occur in the workplace.
Although an employer can campaign against the union, it is an unfair labor practice to spy on employees organizing, intimidate employees to try to get them to vote against the union, and to retaliate against supporters of the union. The NLRB strives to ensure that the vote is fair and will delay a vote if there have been unfair labor practices that destroy what are referred to as “laboratory conditions” for the election.

2. Collective Bargaining and Union Contracts

Collective bargaining relates to the process of negotiating the terms and conditions of employment for a company’s employees after the union is certified as the representative of the company’s employees. The negotiations take place between management on behalf of the company, and union representatives on behalf of the company’s employees only; the employer cannot bargain directly with its employees after a union has been certified by the NLRB. The negotiations can determine all of the terms of employment, including pay, benefits, hours, leave, safety policies, ways to balance work and family and more. Generally the negotiations result in the company and the union entering into a formal written contract (the “collective bargaining agreement”). Collective bargaining is a way to solve workplace problems. It is also a way for management to lose control of the workplace. Many subjects of negotiation are mandatory, but not all. A refusal by either the company or the union to negotiate over a mandatory term can result in the filing of an unfair labor practice charge against the other with the NLRB.

The collective bargaining contracts entered into by companies and unions are often multi-year contracts. Five years is a common duration and before the expiration of the contract term, negotiations must begin again for a new contract. The company has as bargaining leverage the control over the company’s finances; an employer cannot be forced to raise pay. The union has the ability to call a strike if the employer will not agree to the union’s demands.

Three key terms that unions look to have in collective bargaining agreements are: (1) a requirement that the company only hire union members during the contract term; (2) that the employer require the employee members to pay union dues; and (3) arbitration of all disputes. The first two key terms are straight forward enough, although in jurisdictions with “right to work” statutes they may not be applicable. Arbitration is a way for parties to resolve their disputes without going to court and if an arbitration clause is present in the contract the company may not be able to go to court for a judicial resolution of a dispute if it wants to (arbitration is generally mandatory once it is agreed to in the collective bargaining agreement). Arbitrations pursuant to collective bargaining agreements are conducted by professional arbitrators who rely on being hired as arbitrators by unions or employers for their living, and as a result, are often expected to be biased either in favor of either the union or the company. Consequently, when a dispute arises in the workplace that is subject to arbitration, the outcome of the dispute will depend on whose turn it is to pick the arbitrator, the company or the union, and not on the merits of the case.

3. Unfair Labor Practices

Much of the Practice Area of Labor Law involves dealing with “unfair labor practices.” An unfair labor practice is the violation of the NLRA and can be committed by either an employer or a union. Examples of unfair labor practices committed by employers include:

  • interfering with two or more employees acting in concert to protect rights provided by the NLRA, whether or not a union represents them;
  • dominating or interfering with the formation of a labor union;
  • discriminating against an employee to prevent them from engaging in concerted activities (or refraining from it);
  • discriminating against an employee for filing charges with the NLRB or taking part in any NLRB proceedings; and
  • refusing to bargain with the union that is the lawful representative of its employees.

Examples of unfair labor practices committed by unions include:

  • restraining or coercing employees in the exercise of their rights in their choice of a bargaining representative;
  • requiring an employer to discriminate against an employee out of favor with the union;
  • refusing to bargain with the employer;
  • engaging in certain types of “secondary boycotts” to coerce a target employer;
  • requiring excessive dues;
  • requiring an employer to pay for unneeded workers;
  • picketing for recognition for more than thirty days without filing a petition for an election; and
  • refusing to handle goods from an non-union employer.

4. Strikes and Picketing

Strikes are generally associated with a failure of an employer and a union to reach an agreement on a contract (called an impasse). If an impasse on contract terms is reached, the employees may go out on strike. If the strike is over economic terms, the employer may be able to permanently replace the striking employees. If the strike is over an unfair labor practice committed by the employer, such as intimidating employees or firing a union supporter to scare the employees not to strike, the employer may be compelled to reinstate all the striking employees that were replaced during the strike and may even have to pay them their back pay.

Work stoppages or slow-downs where the employees show up for work but purposefully do not work or intentionally work slowly, are unlawful forms of striking. Strikes of one company, such as a supplier, intended to pressure a different company, such as a manufacturer who buys critical components from the supplier, to recognize of a union, are generally also unlawful.

Picketing is different from striking and pickets of a company may include people who don’t work for the company they are picketing (anyone can picket). Picketing is an exercise of free speech, but is not completely unrestricted when it involves matters covered by the NLRA. Picketing is usually undertaken by a union for one of two reasons: (1) to try to persuade customers not to patronize a business that does not have a collective bargaining agreement; or (2) to persuade employees of the company not to go to work and to join a strike.

The rules applicable to picketing can be complex, such as on construction sites, where some trades are represented by unions and other trades are not. In such situations two gates (or “dual gates”) may be set up on the construction site, one gate where in front of it picketing is allowed to take place, and one gate where picketing is not allowed. A union picketing in front of the wrong gate can be charged with an unfair labor practice. A trade or employer entering the construction site through the wrong gate can invalidate the dual gates set up and open the entire construction site to picketing. If two unions have an agreement to respect each other’s picket lines the mistake of using the wrong gate can have the effect of shutting down the entire construction site until the dual gates are properly restored.

Labor Law: A Complex and Always Changing Practice Area

The above is a very basic overview. Labor Law is also an area of law in a state of constant change and you should check with an attorney about your particular situation rather than relying on what you find on the Internet. If you have a business, our attorneys can assist you in every aspect of the labor-management relationship, and give you up to date advise, including:

  • Advising on how to interact with shop stewards and union representatives
  • Addressing picketing and work stoppages
  • Negotiating collective bargaining agreements
  • Ensuring the law is followed in union elections
  • Advising on how to avoid unfair labor practice charges
  • Representing parties before the NLRB
  • Representing parties in arbitrations
  • Assisting in campaigning against union recognition before the NLRB conducts the election

Employment Law

Employment Law is a broad area encompassing all aspects of the relationship between employers and employees, except those covered by the NLRA. Typical employment law matters include wage claims and brought under the Fair Labor Standards Act (FLSA) or local minimum wage and hour laws, discrimination investigation and lawsuits covered by Title VII and enforced by the Equal Employment Opportunity Commission (EEOC) as well as other antidiscrimination laws, sexual harassment cases, and wrongful termination lawsuits based on breaches of employment contracts or violations of public policy.

1. FLSA and Local Wage & Hour Laws

The FLSA is a Federal law that establishes a minimum wage, sets overtime pay for hours worked beyond 40 in one week, requires certain recordkeeping (like keeping timecards), and prohibits child labor. The FLSA is enforced by the United States Department of Labor (DOL) and has provisions that allow for private rights of action by employees. The FLSA applies to full-time and part-time workers in the private sector provided “jurisdictional requirements” involving the impact of the business or the position on interstate commerce are met. The FLSA also applies to Federal, State, and local governments (but the FLSA has limited application in the Commonwealth of the Northern Mariana Islands).

In short, most, but not all employees, are covered by the FLSA. Employees who are not covered (“exempt” employees) may be completely exempt, exempt from only the overtime pay requirements, or partially exempt from the overtime pay requirements. Determining if an exemption applies can be complicated. Incorrectly treating an employee as exempt when they are not can result in significant liability for the company. For example, if the company is found to not have been paying overtime because the company mistakenly believed the employee was exempt, the company can be required to pay all of the unpaid wages going back up to three years plus an equal amount as liquidated damages and even the attorney’s fees of the employee if the employee sues. A “civil monetary penalty” can also be imposed by the DOL under certain circumstances.

State and local minimum wage and overtime laws are often more stringent that the FLSA (as an example the FLSA only requires overtime pay for hours worked in excess of 40 in a week but some states require overtime pay for hours worked in excess of 8 in a day). State and local laws are also not subject to the “effecting interstate commerce” requirement of the FLSA before they apply. The FLSA does not limit the time or days when an employee can work, or require that employees be given certain holidays, but state and local laws often do. An employer needs to know what laws apply to their business and failing to comply with the correct law can be costly.

2. Title VII and Related Anti-Discrimination Laws

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against a person in their employment on the basis of sex, race, color, national origin, or religion. The law also makes it illegal to retaliate against a person who complains about discrimination, files a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Title VII applies to current employees and those who apply for employment. Title VII generally applies to employers with 15 or more employees.

Title VII is enforced by the EEOC. The EEOC also enforces a collection of similar anti-discrimination laws. These include the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Discrimination Act.

The Age Discrimination in Employment Act basically prohibits decimation based on age over 40. Pregnancy discrimination is prohibited as a form of discrimination based on sex under Title VII. A spate law, the Family and Medical Leave Act of 1993, requires employers to accommodate parents when there is a pregnancy, as well as other family medical issues under certain circumstances. In general, an employer must provide up to 90 days of unpaid leave to either the father or mother related to a pregnancy (state and local laws can require a greater amount of accommodation). Another law, the Americans with Disabilities Act of 1990, requires that employers reasonably accommodate an employee’s medical condition. Title VII also requires the accommodation of an employee’s sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

Title VII and all of the other Acts enforced by the EEOC are somewhat complex and nuanced. Employers can be held liable for the actions of their managers under certain circumstances, and damage awards to employees can include the employee’s emotional distress with limitations, as well as back and front pay. There is plenty of educational material available for employers to study through the EEOC and through associations that assist employers, like the Society of Human Resource Management (SHRM). Employers should also consider attorneys who practice Employment Law a resource, and consult with an attorney whenever concerns arise over possible discrimination in the workplace.

In the broadest sense, “discrimination” in employment is treating one employee or a group of employees differently from another. Employers should consult with an attorney familiar with Employment Law whenever there is any concern over an employment matter that may involve discrimination.

3. Sexual Harassment

Sexual harassment is a form of sex discrimination prohibited under Title VII. The EEOC has primary or initial jurisdiction to investigate sexual harassment claims but it is not uncommon for the EEOC to issue what is called a “right to sue letter” to employees claiming sexual harassment so that the employees can themselves sue their employers directly.

Sexual harassment falls into two basic categories: quid pro quo and hostile environment claims. The basic quid pro quo claim is that sex was required by the employer as a condition of employment (for example to get a raise or receive more favorable hours the employee had to give in to a supervisor’s sexual advances). Quid pro quo is the most offensive form of sexual harassment. The hostile environment claim is that the employer allowed an environment to exist in the workplace that was overtly sexual and demeaning and that made the work environment intolerable for the employee. Examples of a hostile work environment include a workplace where comments are made about an employee’s body, dirty jokes are made, or pornographic images are displayed. Employees have the right to work in an environment that is not sexually hostile.

If sexual harassment is ongoing in the workplace, the liability for the company can be significant. Companies therefore need to make sure their supervisors are aware of what is sexual harassment and that they take affirmative steps to prevent it. Companies also have to put in place procedures to properly and compassionately address a complaint of sexual harassment should, despite the best efforts of the company to prevent it from happening, it does occur.

4. Wrongful Termination

A ‘”wrongful termination” lawsuit is just what it sounds like: a lawsuit alleging that it was “wrong” to fire the particular former employee involved.

Wrongful termination lawsuits are often based on employment contracts. Employment contracts can define “cause” for termination, and can provide for a procedure for discipline. If the employer breaches the contract be terminating the employee for something that is not cause, or if the employer fails to follow the contractual disciplinary procedure, a wrongful termination action based on breach of contract may be filed.

Most employees are not employed pursuant to written contracts and their employment is “at will.” What this is usually said to mean is that the employee can be fired at any time, for any reason, or for no reason, but not an unlawful reason. When an employee is fired for an unlawful reason a wrongful termination lawsuit may follow. An example of firing an at will employee for an unlawful reason is where the employee is fired for failing to help the employer violate the law by not recording all sales so the company could cheat on taxes. Also, if an employee who reports their employer for unlawful activity (a “whistle blower”) is fired that former employee can sue for wrongful termination even if they did not have a written employment contract. An example is an employee being fired for reporting the employer for workplace safety violations to OSHA. Such firings are considered violations of public policy and enable the at will employee to sue.

Wrongful termination lawsuits are often filed along with the filing of a claim of a statutory violation like a violation of Title VII. Wrongful termination lawsuits can provide for greater damages for the former employee than most statutory actions. As an example, punitive damages to punish the employer and emotional distress damages are capped under Title VII based on the size of the employer, but there is generally no statutory cap on these forms of damages in a wrongful termination lawsuit, and in a wrongful termination case it could end up with a jury deciding how much to award a sympathetic former employee as emotional distress damages.

5. Other Issues (OSHA, Worker’s Compensation, Immigration Law Compliance)

There are other aspects of the employer/employee relationship that are regulated by law, and are thus part of the Practice Area of Employment Law. For example, there are laws that protect the safety of employees in the workplace that are enforced by the Occupational Safety and Health Administrations (OSHA). Most jurisdictions require employers to have special insurance in place to cover employees for on the job injuries, referred to as “workers compensation insurance,” and it can be surprisingly complicated determining if an injury is work related and sorting out the benefits for the employee involved. And, laws requiring employers to verify the ability of the employee to legally work as a matter of the employee’s immigration status can result in significant liability for the employer if not followed. Attorneys who practice Employment Law deal with these and many other issues.

Acting Proactively for Employers (An ounce of prevention…)

Waiting for problems to arise in the workplace and then addressing them when they do, is not good business. There is a lot an attorney who practices Employment Law can do to help a company avoid problems. If you have a business our attorneys who practice in the area of Employment Law can assist you in all aspects of the employee/employer relationship, including:

  • Developing proactive employment practices and policies such as through an employee handbook;
  • Advising on and ensuring compliance with wage and hour and other employment laws before an employee complains or an investigation starts;
  • Reviewing policies designed to prevent sexual harassment and meeting with supervisors to help train them on dealing with sexual harassment complaints; and
  • Assisting with the resolution of disputes, internally, before they go to court or to an administrative agency, by assisting the Human Resources Manager.

Representing Employees

Law firms that practice in the area of Employment Law often become wedded to either representing employers or employees. Some of the Members of Pacific Lawyers do both (represent both employers and employees but not in the same case of course). A special concern that often arises in jurisdictions covered by Pacific Lawyers when representing the employee is the loss of the employee’s immigration status while the matter is pending. Also, representing the employee is generally done on a contingent fee basis, but in employment law, there are often statutes that can shift the burden of legal fees onto the employer if the employee prevails. Whether you are an employer or an employee, feel free to contact the Member Firm of Pacific Lawyers in the jurisdiction where you live to consult about your situation.

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