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Hotel, Restaurant, and Travel Law

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Unformatted text preview: EMPLOYMENT LAW - outline EMPLOYMENT Employment *Term employment – contracted for a specified duration. Firing or quitting before that time, without good cause, would be a breach of contract. *At­will employment – no specified duration: . *An employee at will can quit or be fired for a good reason or no reason at all, but not for some reasons, i.e. discrimination retaliatory or other violation of law. *Without a contract, a worker is an employee at will. Wrongful Discharge *Wrongful discharge prohibits an employer from firing a worker for a bad reason. *The public policy rule prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities, such as: *Refusing to Violate the Law *Exercising a Legal Right *Performing a Legal Duty (like jury duty) *Varies from state to state (Federal) Fair Labor Standards Act *The Fair Labor Standards Act (FLSA) regulates wages *It sets a Federal minimum wage. *Also sets the standard workweek allows for overtime pay. *Regulates child labor by regulating when, how much and in what types of jobs minors can work. Family and Medical Leave Act (FMLA) *In 1993, Congress passed the Family and Medical Leave Act (FMLA), which guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or medical emergencies for themselves or a parent, child or spouse. Financial Protection *Social Security (Federal) *Currently, the Social Security system pays benefits to wage­earners who are retired at the statutory age, disabled (permanently and fully), or to the spouses and children of disabled or deceased workers – benefits last until death or until eligibility ends. ends. *TDI (RI) Pays benefits to a wage­earner who has paid into the system, who is disabled and cannot do their job – benefits last till eligibility ends or benefits run out, whichever comes first. *Workers’ Compensation (governed by state law) *Workers’ compensation statutes ensure that employees receive payment for no­fault injuries incurred at work. Employers must obtain their own insurance for their employees and this act as a substitute for a negligence case. *Unemployment Compensation *An employee shall receive benefits when they become unemployed, if they are eligible: *Worked enough prior to the claim; *Are employable; and *Are seeking employment. *Benefits payable if: *Terminated without good cause? YES *Terminated for good cause? NO *Voluntary leave (quit) without good cause? NO *Voluntary leave (quit) for good cause? Varies US IMIGRATION LAWS *An employer must verify the employee eligibility status of every potential employee prior to hiring. *Must use the proper forms. *Must obtain the required supporting documentation / identification. *Citizens, Permanent Resident Aliens, and those with Work Visas can generally work. Employment Discrimination *Under the Equal Pay Act (part of the Federal Fair Labor Standards Act), an employee may not be paid a lesser rate (for equal work) than opposite sex employees. *Title VII of the Civil Rights Act of 1964 *Prohibits employers from discriminating in hiring, firing, promoting, training, benefits, etc. on the basis of: race or color (most suspect), religion, national origin or gender. *Employers must make reasonable accommodation for a worker’s religious beliefs unless the request for a worker’s religious beliefs unless the request would cause undue hardship for the business. *Affirmative action is not required by Title VII, nor is it prohibited. Reverse discrimination is prohibited. *Pregnancy *An employer may not fire or refuse to hire a woman just because she is pregnant. Why? Proof of Discrimination *Plaintiffs in Title VII cases can prove discrimination in one of two ways: *Disparate Treatment – the plaintiff must show that they were actually treated differently because of her sex, race, color, religion or national origin. Intentional discrimination. *Disparate Impact – the plaintiff must show that a rule, although not discriminatory in itself, has an impact in practice that excludes too many people. Neutral conduct that has a discriminatory effect. Defenses to Charges of Discrimination *There are three possible defenses for a charge of discrimination: *1. Merit – There was no discrimination. *2. Seniority ­ There was no discrimination. *3(a). Bona Fide Occupational Qualification: The name of the defense to Disparate Treatment discrimination. *3(b). Business Necessity: The name of the defense to Disparate Impact discrimination. Sexual Harassment *Involves unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. *Quid Pro Quo *From a Latin phrase that means “this for that” – means that an aspect of job is dependent on sexual activity (promotion in exchange for sex) *Hostile Work Environment *A claim of sexual harassment might be valid if sexual innuendo is so pervasive that it interferes with an employee’s ability to do her (or his!) job. The conduct creates a hostile workplace. *Who actually harasses, who is the defendant in this type of case and when are they liable? *Quid Pro Quo *Liability occurs even if there is only one instance of harassment. Foreseeability is not necessary. *Hostile Work Environment *Liability if: *The employer knew or should have known of the conduct (it was foreseeable); and *The employer did not take prompt action to try to remedy the problem. Age Discrimination *The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against employees or job applicants who are at least 40 years old. *Forced retirement at a certain age is prohibited except for police and top­level corporate executives. *Can defend with BFOQ or “Business Necessity”. Americans with Disabilities Act Americans *A person with a disability is someone with a physical or mental impairment that substantially limits a major life activity, or someone who is regarded as having such an impairment. *An employer may not disqualify a job applicant or employee because of disability as long as she can, with reasonable accommodation (would not create undue hardship) perform the essential functions of the job. ­ So “business necessity” or BFOQ are defenses here too. National Labor Relations Act *NLRA (or the Wagner Act): *Created the National Labor Relations Board to enforce labor laws, *Prohibits employers from penalizing workers who engage in union activity (for example, joining a preexisting union or forming a new one); and *Requires employers to “bargain in good faith” with unions. *The idea is one worker does not have equal bargaining power to management. COBRA *The Consolidated Omnibus Budget Reconciliation Act (COBRA) provides that former employees of companies with 20 or more employees must be allowed to continue their health insurance for 18 months after leaving their job. *The catch is that employees must pay for it themselves, up to 102 percent of the cost. (The extra 2 percent covers administrative expenses.) Workplace Safety *In 1970, Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions. *Sets specific health and safety standards. *Obliges employers to keep workplace “free from recognized hazards.” *Requires records of all injuries and accidents. *Allows inspection of workplaces and fines for unsafe conditions. Contract Law *Truth in Hiring *Oral promises made during the hiring process can be enforceable – subject to the Statute of Frauds. enforceable – subject to the Statute of Frauds. *Employers may be liable for promises that they cannot keep or for failure to disclose important information in the hiring process. *An employee handbook creates a contract and all of the terms become of the contract. *Covenant of Good Faith & Fair Dealing *In some cases, courts will imply a covenant of good faith and fair dealing in an at­will employment contract. In fact, “good faith and fair dealing” are generally considered a duty of any contracting party Employee Privacy *In many places, off­duty conduct cannot be regulated by the employer. *Alcohol and drug testing is allowed by private businesses, but generally only if done as part of the hiring process, yearly physical or if there is a reasonable suspicion of on­the­job use; government employers may test if signs of use are seen or if job safety is an issue. *Employers may not require or even suggest the use of lie detector tests, except in investigations of crimes. *Employee does not have a right of privacy on employer systems, but does have a right of privacy (webmail passwords, etc.) in outside websites accessed from work. *Employee can be fired for acting against their employer’s interest in Fb, but not for comments made as a public citizen (freedom of speech protection). Electronic Monitoring of the Workplace *The Electronic Communications Privacy Act of 1986 (ECPA) permits employers to monitor workers’ telephone calls, e­mail messages, and even “instant messages” if: *the employee consents, or *the monitoring occurs in the ordinary course of business, or *in the case of e­mail, the employer provides the e­ mail (or possibly the internet access) system (the most common situation). ...
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