COMMUNITY OF INTEREST The Commonwealth has fifteen community colleges that comprise the community college system.The college
COMMUNITY OF INTEREST
The Commonwealth has fifteen community colleges that comprise the community college system.The colleges employ full-time as well as part-time employees.Part-time faculty and part-time athletic coaches are seeking to become a part of the full-time teachers bargaining unit.
Part-time faculty fulfill 4 basic needs: 1) teach courses funded by short term grants, 2) teach special disciplines, 3) teach in sections that have student overflow and 4) replace full-timers when they are temporarily unavailable.
The hiring process for part-time faculty is less formal and less protracted than full-time faculty but conducted by the same college administrators.Part-time faculty teach one or two courses a term and receive a lump sum payment for each class.Full-time faculty teach more courses and receive substantially more money per course.Part-time faculty do not receive benefits, do not hold academic rank and are not eligible for tenure or sabbaticals.Part-time faculty do not play role in the governance committees nor are they required to hold office hours with students although they will informally.Part-time faculty teach in the same buildings and when filling in for full-time faculty, they teach the same course to the same students.Part-time faculty have filled full-time position openings when they have become available.
Part-time coaches coach teams in various sports on a seasonal basis.During the season they will work at least two hours a day and work longer on game days.They preside over practice sessions, help improve student performance, attend all games, perform some administrative tasks, recruit athletes for the college and track academic performance of athletes by interacting with faculty.They are paid a lump sum for each sport depending on the length of the season and they receive no benefits.The primary qualifications are knowledge of sport and coaching experience.Students are not required to participate in sports and receive no credit for participating.
QUESTION 1: SHOULD THE PART-TIME FACULTY BE INCLUDED IN THE FULL-TIME FACULTY BARGAINING UNIT?
QUESTION 2: SHOULD THE PART-TIME COACHES BE INCLUDED IN THE FULL-TIME FACULTY BARGAINING UNIT?
Employment and Labor Law
Ninth Edition
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Employment and Labor law
Ninth Edition
PATRICK J. CIHON Law and Public Policy, Management Department,
Whitman School of Management, Syracuse University
JAMES OTTAVIO CASTAGNERA Associate Provost/Legal Counsel, Rider University
Adjunct Professor of Law, Drexel University Managing Director, K&C HR Enterprises
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v
B R I E F C O N T E N T S
Preface « xvii Guide to Briefing Cases « xxiv
Part 1 COMMON-LAW EMPLOYMENT ISSUES « 1 Chapter 1 First the Forest, Then the Trees: An Overview of
Employment and Labor Law 3 Chapter 2 Employment Contracts and Wrongful Discharge 21 Chapter 3 Commonly Committed Workplace Torts 41 Chapter 4 Employee Privacy Rights in the 21st Century 63 Chapter 5 The Global Perspective: International Employment Law
and American Immigration Policy 89
Part 2 EQUAL EMPLOYMENT OPPORTUNITY « 119 Chapter 6 Title VII of the Civil Rights Act and Race
Discrimination 121 Chapter 7 Gender and Family Issues: Title VII and Other
Legislation 153 Chapter 8 Discrimination Based on Religion and National Origin
and Procedures under Title VII 205 Chapter 9 Discrimination Based on Age 255 Chapter 10 Discrimination Based on Disability 279 Chapter 11 Other EEO and Employment Legislation:
Federal and State Laws 313
Part 3 LABOR RELATIONS LAW « 349 Chapter 12 The Rise of Organized Labor and Its Regulatory
Framework 351 Chapter 13 The Unionization Process 397 Chapter 14 Unfair Labor Practices by Employers and Unions 427 Chapter 15 Collective Bargaining 479 Chapter 16 Picketing and Strikes 513 Chapter 17 The Enforcement and Administration of
the Collective Agreement 549
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Chapter 18 The Rights of Union Members 583 Chapter 19 Public Sector Labor Relations 613
Part 4 EMPLOYMENT LAW ISSUES « 653 Chapter 20 Occupational Safety and Health 655 Chapter 21 The Employee’s Safety Nets: Unemployment
and Workers’ Compensation, Social Security, and Retirement Plans 691
Chapter 22 The Fair Labor Standards Act 721 Glossary 751 Case Index 756 Subject Index 764
vi Brief Contetns
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vii
Preface « xvii Guide to Briefing Cases « xxiv
Part 1 COMMON-LAW EMPLOYMENT ISSUES « 1 Chapter 1 First the Forest, Then the Trees: An Overview of
Employment and Labor Law 3
1-1 The New Deal and the Rise of the Modern American Union 4 1-2 The Post-War Decline of Organized Labor 6 1-3 The Resurrection of the Arbitration Remedy 7 1-4 Employee Health, Safety, and Welfare 11 Chapter Review 17
Chapter 2 Employment Contracts and Wrongful Discharge 21
2-1 Employment-at-Will and Its Exceptions 21 2-2 Wrongful Discharge Based on Public Policy 22 2-3 Express and Implied Contracts of Employment 27 2-4 Protection for Corporate Whistleblowers 30
2-4a Civil Liability Under SOX 31 Chapter Review 35
Chapter 3 Commonly Committed Workplace Torts 41
3-1 Defamation: Libel and Slander 42 3-2 Tortious Infliction of Emotional Distress 45 3-3 Tortious Interference with Contract 48 3-4 Retaliatory Demotion 52 3-5 Theft of Trade Secrets 52 Chapter Review 57
C O N T E N T S
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Chapter 4 Employee Privacy Rights in the 21st Century 63
4-1 Privacy Rights in the Employment Area 64 4-2 Surveillance and Eavesdropping 65 4-3 Monitoring and Reviewing Computer Information and Use 68 4-4 Requests for Information from Third Parties 70 4-5 Requests for Medical Information 72 4-6 Internal Investigations 75 4-7 False Light Invasion of Privacy 76 4-8 Personnel Files 80 Chapter Review 83
Chapter 5 The Global Perspective: International Employment Law and American Immigration Policy 89
5-1 International Employment Law and Policy 89 5-1a The Alien Tort Claims Act and International Workers’ Rights 92
5-2 Global Labor Unions 97 5-2a Union Network International (UNI) 97
5-3 Immigration Law and Policy 99 5-3a Immigration Reform and Control Act of 1986 100 5-3b Employer Compliance with IRCA 100 5-3c Who Enforces U.S. Immigration Laws? 102 5-3d Anatomy of an ICE Raid 104 5-3e State and Local Involvement with Illegal Immigrants 106 5-3f The Legal Arizona Workers Act 107 5-3g President Obama’s Executive Order 108
Chapter Review 110
Part 2 EQUAL EMPLOYMENT OPPORTUNITY « 119 Chapter 6 Title VII of the Civil Rights Act and Race
Discrimination 121
6-1 Title VII of the Civil Rights Act of 1964 121 6-1a Coverage of Title VII 122 6-1b Administration of Title VII 123 6-1c Discrimination Under Title VII 124 6-1d Bona Fide Occupational Qualifications (BFOQs) 125
6-2 Unintentional Discrimination: Disparate Impact 6-2a Section 703(k) and Disparate Impact Claims 129 6-2b Validating Job Requirements 131
6-3 Seniority and Title VII 135
viii Contents
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Contents ix
6-4 Mixed-Motive Cases Under Title VII 138 6-5 Retaliation Under Title VII 138 6-6 Affirmative Action and Reverse Discrimination 141 6-7 Other Provisions of Title VII 147 Chapter Review 147
Chapter 7 Gender and Family Issues: Title VII and Other Legislation 153
7-1 Gender Discrimination 153 7-1a Dress Codes and Grooming Requirements 153 7-1b Gender as a BFOQ 154 7-1c Gender Stereotyping 157 7-1d “Gender-Plus” Discrimination 160
7-2 Gender Discrimination in Pay 161 7-2a The Equal Pay Act 161 7-2b Defenses Under the Equal Pay Act 164 7-2c Procedures Under the Equal Pay Act 165 7-2d Remedies 167 7-2e Title VII and the Equal Pay Act 167 7-2f Gender-Based Pension Benefits 168
7-3 Pregnancy Discrimination 171 7-3a Pregnancy and Hazardous Working Conditions 172
7-4 The Family and Medical Leave Act 173 7-4a FMLA Coverage 173 7-4b Entitlement to Medical Leave 174 7-4c Military Leave Provisions 175 7-4d Effect of Other Laws on the FMLA 178 7-4e State Legislation 178
7-5 Sexual Harassment 180 7-5a Quid Pro Quo Harassment 182 7-5b Hostile Environment Harassment 182 7-5c Employer Liability for Sexual Harassment 185 7-5d Employer Responses to Sexual Harassment Claims 189 7-5e Same-Sex Harassment 192 7-5f Remedies for Sexual Harassment 193 7-5g Sexual Orientation, Sexual Preference, and Sexual
Identity Discrimination 194 Chapter Review 199
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Chapter 8 Discrimination Based on Religion and National Origin and Procedures Under Title VII 205
8-1 Discrimination on the Basis of Religion 205 8-1a Exceptions for Religious Preference and Religious Employers 206
8-2 Discrimination Based on National Origin 216 8-2a Definition 217 8-2b Disparate Impact 220 8-2c English-Only Rules 221 8-2d The Immigration Reform and Control Act of 1986 and
Discrimination Based on National Origin or Citizenship 223 8-3 Enforcement of Title VII 224
8-3a The Equal Employment Opportunity Commission 224 8-3b Procedures Under Title VII 225 8-3c EEOC Procedure and Its Relation to State Proceedings 226 8-3d EEOC Procedure for Handling Complaints 229
8-4 Burdens of Proof: Establishing a Case 231 8-4a Disparate Treatment Claims 231 8-4b Disparate Impact Claims 235 8-4c Arbitration of Statutory EEO Claims 237 8-4d Private Settlement and Release Agreements 242 8-4e Remedies Under Title VII 242 8-4f Compensatory and Punitive Damages 244 8-4g Remedial Seniority 246 8-4h Legal Fees 246 8-4i Class Actions 247 8-4j Public Employees Under Title VII 247
Chapter Review 249
Chapter 9 Discrimination Based on Age 255
9-1 The Age Discrimination in Employment Act 255 9-1a Coverage 255 9-1b Provisions 256 9-1c Procedures Under the ADEA 271 9-1d Remedies Under the ADEA 273
Chapter Review 274
Chapter 10 Discrimination Based on Disability 279
10-1 The Americans with Disabilities Act 279 10-1a Coverage 279 10-1b Provisions 280
10-2 Qualified Individual with a Disability 281
x Contents
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10-3 Definition of Disability 281 10-3a The ADA Amendments Act of 2008 281
10-4 Medical Exams and Tests 286 10-5 Reasonable Accommodation 286
10-5a Undue Hardship 290 10-6 Defenses Under the ADA 291
10-6a Direct Threat to Safety or Health of Others 291 10-6b Job-Related Criteria 292 10-6c Food Handler Defense 292 10-6d Religious Entities 292
10-7 Enforcement of the ADA 294 10-8 The Rehabilitation Act 294
10-8a Provisions 294 10-8b AIDS and the Disability Discrimination Legislation 297 10-8c State Disability Discrimination Legislation 298 10-8d Drug Abuse and Drug Testing 298
Chapter Review 306
Chapter 11 Other EEO and Employment Legislation: Federal and State Laws 313
11-1 The Civil Rights Acts of 1866 and 1870 313 11-1a Section 1981 313 11-1b Section 1983 314 11-1c Section 1985(c) 315 11-1d Procedure Under Sections 1981 and 1983 315
11-2 Executive Order No. 11246 316 11-2a Equal Employment Requirements 316 11-2b Affirmative Action Requirements 317 11-2c Procedure Under Executive Order No. 11246 317
11-3 Employment Discrimination Because of Military Service: The Uniformed Services Employment and Reemployment Rights Act 319 11-3a The Uniformed Services Employment and Reemployment Rights Act 319 11-3b Military Family Rights Under the FMLA 323
11-4 The National Labor Relations Act 324 11-5 Constitutional Prohibitions Against Discrimination 324
11-5a Due Process and Equal Protection 324 11-5b Affirmative Action and the Constitution 325 11-5c Other Constitutional Issues 327
11-6 State EEO and Employment Laws 329 11-6a Gender Discrimination 330 11-6b Sexual Orientation Discrimination 330 11-6c Family Friendly Legislation 332
Contents xi
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11-7 Other Employment Legislation 333 11-7a Whistleblower Laws 333 11-7b Criminal Record 335 11-7c Polygraph Testing 336 11-7d Honesty Testing 339 11-7e Off-Duty Conduct 339 11-7f Guns at Work Laws 342
Chapter Review 343
Part 3 LABOR RELATIONS LAW « 349 Chapter 12 The Rise of Organized Labor
and Its Regulatory Framework 351
12-1 Labor Development in America 351 12-1a The Post–Civil War Period 353 12-1b Recent Trends in the Labor Movement 355
12-2 Legal Responses to the Labor Movement 356 12-2a Injunctions 356 12-2b Yellow-Dog Contracts 357 12-2c Antitrust Laws 357
12-3 The Development of the National Labor Relations Act 359 12-3a The Norris–La Guardia Act 359 12-3b The Railway Labor Act 362 12-3c The National Industrial Recovery Act 363 12-3d The National Labor Board 364 12-3e The “Old” National Labor Relations Board 365
12-4 The National Labor Relations Act 366 12-4a Overview of the National Labor Relations Act 366
12-5 The National Labor Relations Board 368 12-5a Organization 368 12-5b Jurisdiction 376 12-5c Preemption and the NRLA 389
Chapter Review 392
Chapter 13 The Unionization Process 397
13-1 Exclusive Bargaining Representative 397 13-1a Employees’ Choice of Bargaining Agent 397 13-1b Rules That Bar Holding an Election 404 13-1c Defining the Appropriate Bargaining Unit 405 13-1d Voter Eligibility 412
13-2 Representation Elections 413 13-2a Decertification of the Bargaining Agent 416
xii Contents
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13-2b Acquiring Representation Rights Through Unfair Labor Practice Proceedings 417
Chapter Review 421
Chapter 14 Unfair Labor Practices by Employers and Unions 427
14-1 Section 7: Rights of Employees 428 14-2 Sections 8(a)(1) and 8(b)(1): Violation of Employee Rights by Employers
or Unions 432 14-2a Antiunion Remarks by Employer 433 14-2b Employer Limitations on Soliciting and Organizing 434 14-2c Other Section 8(a)(1) Violations 442 14-2d Union Coercion of Employees and Employers 446 14-2e Section 8(a)(2): Employer Domination of Labor Unions 448 14-2f Sections 8(a)(3) and 8(b)(2): Discrimination in Terms or Conditions
of Employment 453 14-2g Discrimination in Employment to Encourage Union Membership and Union
Security Agreements 455 14-2h Discrimination in Employment to Discourage Union Membership 458 14-2i Strikes as Protected Activity 458
14-3 Other Unfair Labor Practices 466 14-3a Employer Reprisals Against Employees 466 14-3b Excessive Union Dues or Membership Fees 467 14-3c Featherbedding 467 14-3d Remedies for Unfair Labor Practices 468 14-3e Reinstatement 469 14-3f Back Pay 471 14-3g Extraordinary Remedies 472 14-3h Delay Problems in NLRB Remedies 473
Chapter Review 473
Chapter 15 Collective Bargaining 479
15-1 The Duty to Bargain 479 15-1a Bargaining in Good Faith 480
15-2 The Nature of the Duty to Bargain in Good Faith 488 15-3 Subject Matter of Bargaining 490
15-3a Mandatory Bargaining Subjects 490 15-3b Permissive Bargaining Subjects 496 15-3c Prohibited Bargaining Subjects 497 15-3d Modification of Collective Agreements 497
15-4 Antitrust Aspects of Collective Bargaining 504 Chapter Review 506
Contents xiii
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Chapter 16 Picketing and Strikes 513
16-1 Pressure Tactics 513 16-1a Strikes in the Health-Care Industry 514
16-2 The Legal Protection of Strikes 514 16-2a The Norris-La Guardia Act 515 16-2b The National Labor Relations Act 517 16-2c Picketing Under the NLRA 520 16-2d Remedies for Secondary Activity 538
16-3 National Emergencies 539 Chapter Review 540
Chapter 17 The Enforcement and Administration of the Collective Agreement 549
17-1 Arbitration 549 17-1a Interest Arbitration Versus Rights Arbitration 550 17-1b Rights Arbitration and the Grievance Process 550
17-2 The Courts and Arbitration 552 17-2a Judicial Enforcement of No-Strike Clauses 557 17-2b The NLRB and Arbitration 560
17-3 Changes in the Status of Employers 561 17-3a Successor Employers 561
17-4 Bankruptcy and the Collective Agreement 567 17-4a Bankruptcy and Retiree Benefits 575
Chapter Review 577
Chapter 18 The Rights of Union Members 583
18-1 Protection of the Rights of Union Members 583 18-1a The Union’s Duty of Fair Representation 583
18-2 Rights of Union Members 596 18-2a Union Discipline of Members 596 18-2b Union Members’ Bill of Rights 597 18-2c Other Restrictions on Unions 602
Chapter Review 604
Chapter 19 Public Sector Labor Relations 613
19-1 Government as Employer 613 19-2 Federal Government Labor Relations 616
19-2a Historical Background 616 19-2b The Federal Service Labor–Management Relations Act 617 19-2c Judicial Review of FLRA Decisions 625
xiv Contents
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19-2d The Hatch Act 626 19-2e Union Security Provisions 627 19-2f Federal Labor Relations and National Security 629
19-3 State Public Sector Labor Relations Legislation 634 19-3a Coverage of State Laws 634 19-3b Representation Issues 635 19-3c Bargaining and Open-Meeting Laws 639
19-4 Public Employees and First Amendment Free Speech Rights 642 Chapter Review 646
Part 4 EMPLOYMENT LAW ISSUES « 653 Chapter 20 Occupational Safety and Health 655
20-1 Policy and Processes of the Occupational Safety and Health Act 658 20-1a Administration and Enforcement 658 20-1b Employee Rights 666 20-1c Inspections, Investigations, and Record Keeping 673
20-2 Citations, Penalties, Abatement, and Appeal 677 20-2a Workplace Violence 679
Chapter Review 684
Chapter 21 The Employee’s Safety Nets: Unemployment and Workers’ Compensation, Social Security, and Retirement Plans 691
21-1 Unemployment Compensation 693 21-1a Litigating Unemployment Claims 695
21-2 Workers’ Compensation 699 21-2a Federal Preemption of Workers’ Compensation Claims 702
21-3 Social Security 703 21-3a Retirement Insurance Benefits 703 21-3b Medicare, Medicaid, and the Affordable Care Act 704 21-3c Disability 707
21-4 Employee Retirement Income Security Act (ERISA) 710 21-4a Preemption 711 21-4b Fiduciary Responsibility 714
Chapter Review 716
Contents xv
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Chapter 22 The Fair Labor Standards Act 721
22-1 Background of the FLSA 721 22-2 Origin and Purpose of the Fair Labor Standards Act 723
22-2a Coverage 724 22-2b Minimum Wages 728 22-2c Overtime Pay 735 22-2d Exemptions from Overtime and Minimum Wage
Provisions 736 22-2e Limitations on Child Labor 740 22-2f Enforcement and Remedies Under the FLSA 744
Chapter Review 747 Glossary 751 Case Index 756 Subject Index 764
xvi Contents
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xvii
P R E FA C E
Nearly 30 years ago, when we first undertook the writing of an employment and labor law textbook, we had no notion that our creative effort would carve itself such a long-lasting niche in higher education. Clearly, however, the release of this ninth edition, as well as accolades like those below, confirm that Employment and Labor Law is now firmly established. Lest this sound as if we were resting on our laurels, allow us to hastily add that this new edition has been significantly revised and updated. A source of particular pride is Part One, expressly intended to bring our “old standard” firmly into the employment and labor firmament of the 21st century. Three issues of critical importance in the new millennium—privacy, globalization, and immigration—are treated specifically and in-depth. Additionally, numer- ous new cases, case problems, hypotheticals, and The Working Law features ensure that every chapter of this new volume is on the cutting edge of the topic it covers.
I have practiced labor and employment law for over twenty years and I think this is the best text for a basic labor and employment law class…. It’s simple to read and straightforward. I tell my students to keep the book and not sell it because it is quite helpful for the basic questions they will be asked in the work world.
Maris Stella (Star) Swift Grand Valley State University
The text is well laid-out, and is written in language that is appropriate for the stu- dents; there is no reason for the students to not read the text. The questions that follow the edited cases help to focus the student’s analysis of the case in question, its relevance to the topic, and introduce the student to legal concepts and outcomes they tend to neglect or may not fully understand….
Curt M. Weber University of Wisconsin—Whitewater
[Employment and Labor Law has an] excellent balance of in-depth case-law read- ings, related ethical considerations, Internet resources and foundational materials for the non-lawyer audience.
Susan F. Alevas New York University
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Hallmark Features In the constantly changing, often controversial areas of employment and labor law, the ninth edition of Employment and Labor Law provides current information in a way that highlights critical thinking, ethical decision-making, and relevance to the business world. The unique hallmark features of this text that have been retained include the following.
Current and Balanced Coverage This text offers a comprehensive balance of both employment law and labor law topics and includes up-to-date information. This edition specifically examines the revolutionary changes being wrought by the Obama administration with regard to who is an employee under the National Labor Relations Act (NCAA Division I athletes) and the Fair Labor Standards Act, and by the United States Supreme Court (a corporation can hold religious beliefs that trump the Affordable Care Act per the First Amendment). Expanded employee rights under Obamacare, the Family and Medical Leave Act, and the Supreme Court’s same-sex-marriage decisions are fully delineated, while the EEOC’s challenge to corporate wellness programs is also described.
Readability In no other area of the law are nonlawyer professionals exposed to such legal regulation, and in no other area do they experience the need for “lawyer-like” skills to the extent that human resources directors and industrial relations specialists do. This book is therefore written to help business and management students, not necessarily lawyers. The straightforward writ- ing style clarifies complex concepts, while pedagogical features help readers develop the legal reasoning and analysis skills that are vital for success in the business world.
The Working Law Connecting legal concepts and cases to our everyday environment, The Working Law fea- tures highlight the relevancy of the law while sparking student interest and bringing con- cepts to life. Cutting-edge topics like emotional distress via social networking websites and increasing age discrimination claims in today’s tough economy, as well as controversial dis- cussions about sweatshops and the landmark Affordable Care Act, are just a few of those considered in this edition.
Ethical Dilemma What is the extent of global corporate social responsibility? Can employers use genetic in- formation in hiring decisions? What are the boundaries …
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