BUSN623 Week 5 forum replies FOR PART TWO: In replies to each other in this Discussion, please pursue a respectful but robust debate on this topic. Do not simply seek out the posts that agree with your view. Rather, engage in the opposite. PART 2 Replies: identify each separately by name in ( ), consisting of 3 separate minimum 100-word replies. Please refer to BUSN623 Week 5 Part 1 Forum for the weeks readings, learning objectives, and general reference notes in order to reply.
BUSN623 Week 5 forum replies
- FOR PART TWO: In replies to each other in this Discussion, please pursue a respectful but robust debate on this topic. Do not simply seek out the posts that agree with your view. Rather, engage in the opposite.
Replies: identify each separately by name in ( ), consisting of 3 separate minimum 100-word replies.
Please refer to BUSN623 Week 5 Part 1 Forum for the weeks readings, learning objectives, and general reference notes in order to reply.
Respond with minimum 100 words, to include 1 direct question.
Affirmative action is a specific precaution taken by a firm or educational institution to eliminate discrimination of the marginalized groups. The policy has been spread around schools globally to upgrade educational opportunities for these groups. It was first introduced by John F Kennedy on March 6, 1961. He directed all government contractors to take affirmative action by guaranteeing employment to all applicants and ensuring proper treatment in the course of employment to everyone disregarding the race, color, or natural background. Education in the United States was explicitly offered to white males only. Affirmative action necessitated the need for equal rights and educational opportunities for all Americans(Webster, 2017). However, not all institutions have implemented this move in their admission process. In most competitive learning institutions, affirmative action has been implemented widely, thereby boosting the level of literacy. Critics of affirmative action have been keen to note that the policy is already outdated and no longer essential. Supporting this argument, they have stated that affirmative action has only led to the marginalization of the majority groups. The adversaries argue that most institutions are now offering more chances to minority groups such as African American students while denying white students equal opportunities despite possessing equal skills. Abigail Fisher went to the Supreme Court to present her case after being denied admission into the University of Texas.Ms. Fisher stated in court that she was denied admission, as she was white. In defense, the University of Texas argued that she was only denied admission due to her academics and not her race, as stated (Webster, 2017). The University of Texas does not guarantee unconditioned admission of its top 10 percent of students of high school classes to state universities, rendering Fisher’s claim invalid. The Supreme Court ruled in favor of upholding affirmative action and against Abigail Fisher. However, the fact that the court took stance did not necessarily mean that institutions should rely on these proceedings for future references. Therefore, it is the institutional responsibility to engage in sustained considerations and reflections on its admission processes. Subsequent implementation of these policies would go a mile in accomplishing the government’s plans. Affirmative action has helped promote further educational studies as more opportunities are discovered upon completion of the courses. Learning in a diversified environment has been beneficial for both the majority and minority students. Notably, having students from different backgrounds has increased the volume of knowledge. Students also find the opportunity to discover and develop their talents and skills. Critics have, however, put up claims stating that the policy is outdated and should not be considered for use in institutions, despite statistics indicating otherwise. Studies from the National Center of Education in 2015 showed that among the 20 million students who signed up, 14% were of black origin, 17% Hispanic, and 55% were white(Webster, 2017). The study has indicated an increased diversification of races, which is an indication of affirmative action. Strategies of affirmative action have steadily increased the number of minority students admitted to universities and colleges worldwide. In states where it is not fully implemented, black and Hispanic students have suffered immensely through denial of admissions. Therefore, implementing these strategies in all institutions would ensure equity and abolish white supremacy in institutions. Critics against affirmative action have always ignored such critical matters and their effects.
Webster, E. S. (2017, August 14). Affirmative action: What it is and how it works. Teen Vogue. Retrieved from https://www.teenvogue.com/story/what-is-affirmative-action-explainer
Respond with minimum 100 words, to include 1 direct question.
In the 1960s, President Kennedy implemented a policy called Affirmative action, which is, “a policy or program providing advantages for people of a minority group who are seen to have traditionally been discriminated against, with the aim of creating a more egalitarian society through preferential access to education, employment, healthcare, social welfare etc. “ (Lumen, 2018) This was a tool to help to rectify the injustice and inequalities for minorities in the United States because it, “ recruited and advanced qualified minorities, women, persons with disabilities and covered veterans” stated the U.S. Dept of Labor. (U.S. Dept of Labor, n.d.) These are actions that protect the rights of those listed above and ensure they will receive a fair shot.
With policies, there are always pros and cons to go along with them. Affirmative Action helps to ensure fairness and inclusion, helps promote diversity, which is conducive to bring in different perspectives into the work force and promotes positive learning outcomes. Unfortunately, Affirmative Action unintentionally could undermine the benefit of its beneficiaries by subverting the value brought onto the table by ethnic diversity. It is also challenged by opponents who claim it to be unfair and some claim it hinders reconciliation and undermines achievements of those same minorities.
Those are just some of the pros and cons of Affirmative Action. Now the question is, do we still need this policy today? For me I believe it is still a necessary policy at this time. Woman make up the majority of the population tipping the scales with 50.8% but only make up about 5% of Fortune 500 CEOs and only around 7% of top executives in Fortune 100 companies. (Corley & Warner, 2017) There is still a large disparity in this country, and until that is not the status quo, policies like Affirmative Action will need to stay in place.
Affirmative Action. (n.d.) Retrieved from: https://www.dol.gov/general/topic/hiring/affirmative
Corley, C. & Warner, J., (2017), The Woman’s Leadership Gap. Retrieved from: https://safe.menlosecurity.com/doc/docview/viewer/docN45C8D9950C639f57a25360a5e3cfc6ade48f10432b0b500632967a98eb86f4dcd6e80e4f9d56
Learning, L. (2018) Introduction to Sociology. Retrieved from: https://courses.lumenlearning.com/cochise-sociology-os/chapter/affirmative-action/
Respond with minimum 100 words, to include 1 direct question.
The goal of affirmative action is to create opportunity for groups of people who have been historically underrepresented. This came about in the 1964 with the implementation of the Civil Rights Act, which ended segregation and discrimination based upon the race, color, religion, sex, and national origin of an individual (Kenton, 2021). In a perfect scenario, if two candidates with equivalent talent are applying for a job and one is of a minority group, then the employer would select the minority to diversify their staff. There are benefits to affirmative action, such as, to provide aid to disadvantaged groups of people and diversify society. However, the con is that applying this practice in the recruitment process is discriminatory toward the non-minority groups. As Dr. Gary Deel states in the podcast, no situation is ever going to be as perfect as the example provided. There are a multitude of variables that make up a potential employee. They should be judged by their character, and not by their unalterable attributes.
Affirmative action as a legal requirement for employers and universities is a bad idea. The initial implementation served its purpose and integrated minority members into society. It is good practice for companies to diversify, but they should not be forced to meet “quotas” as this can lead to resentment and overall poor work place culture. James DaMore was a Google employee when he wrote Google’s Ideological Echo Chamber in 2017. In this memo, he discusses why there is such a disparity in the tech industry between race and gender. He brings up hiring practices that lower the bar for “diversity” candidates by decreasing the false negative rate. How they waste money on programs, mentorships, and classes only provided to minority groups (DaMore, 2017). He states many other examples of “reverse discrimination” within the company and I recommend reading it for yourself to grasp his full observation. Google believes its practices create a better work environment, but DaMore argues that these practices increase race and gender tensions. He was effectively fired for his statements after the memo was released. This is one example of a company taking affirmative action beyond what it was meant to be, an equal opportunity provider, and pushing the pendulum beyond equilibrium.
Ashar, L & Deel, G (2020) Podcast: The Viability of Affirmative Action in 2020; Politics in the Workplace
DaMore, J (2017, July) Google’s Ideological Echo Chamber.
Kenton, W (2021 Nov 30) Affirmative Action.
Week 5 Part 1 content: Does America Still Need Affirmative Action?
Background: Affirmative action was first instituted by President John F. Kennedy by an Executive Order signed on March 6, 1961. This initiated a requirement that federally funded contracts and programs actively engage plans for employing minorities. Affirmative action grew over time under subsequent Presidential orders and legislation to include women along with minorities for their active preferential placement in higher education enrollment as well as in employment. The purpose of affirmative action is to level the playing field for applicants by opening opportunity to classes of otherwise qualified individuals subjected to discrimination in hiring and education, due to a social legacy of racial, gender, and ethnic prejudice. Nearly 60 years since JFK’s Executive Order, many now argue that affirmative action has served its purpose and that its cumbersome administrative requirements are a burden that schools and employers no longer need to bear. Others argue that the deep prejudices underlying the purpose of affirmative action continue to plague American society and justify its continuing importance to promote and ensure diversity in society’s critical settings of education and workforce.
LISTEN TO THE FOLLOWING PODCAST FOR PREPARING THIS DISCUSSION:
Podcast: The Viability of Affirmative Action in 2020; Politics in the Workplace with Dr. Linda Ashar and Dr. Gary Deel.
Listen on your mobile device by searching for “APU Politics in the Workplace” on your favorite podcast listening platform OR click to find this episode on Apple Podcasts | Spotify | Google Podcasts | Stitcher.
Here is a PDF of the Podcast Transcript
For your Discussion Essay: Take a Position For or Against Affirmative Action:
ANSWER ALL QUESTIONS!
- Research and summarize the essential requirements of affirmative action. Where, how, and why is it applied?
- Consider the pros and cons of affirmative action based on your review of the required readings and your own research. Include case law in your analysis.
- Take a position either pro or against continuation of affirmative action as a legal requirement of covered employers and universities. Present your position and discuss your reasons for your position. This should be more than just a personal opinion. Support your analysis with examples, which can include objective personal experience and observations.
Week 5: Administrative Agencies and Employment Law
Welcome to Week 5.
Traditionally business firms are organized hierarchically, with production line employees at the bottom and the CEO at the top. Also, the interests of the stockholders are given priority over the interest of the other stakeholders. However, recent literature presents a challenge to these arrangements, especially to underlying classic economic assumptions whereby labor is treated as an analogous to land, capital, and machinery, that is, as replaceable and as a means to profit. Employees primarily want to be treated as persons who are genuine partners in the business enterprise. They want decent salaries and job security, as well as appreciation from supervisors, a sense of accomplishment, and fair opportunities to display their talents. Many employees are also interested in participating in planning the future directions of the company, defining the public responsibilities of the corporation, evaluating the role and quality of management, and-most especially-helping to set the tasks assigned to their jobs. These new developments in labor relations are all to the good, but they must be understood in light of a very different tradition whereby an employee is clearly subordinate to the employer, is legally obligated to obey the employer’s orders, and has few rights except the right to quit.
CO8: Analyze administrative agencies and employment law issues.
The Learning Material section contains the weekly lesson along with required readings, videos, and other material that conveys this week’s topics. Please read all the materials provided. Note that some of the lesson pages contain multiple links/pages. Be sure you click through all material on each page.
Lesson 5: Administrative Agencies and Employment Law
READ THE FOLLOWING CONTENT
Chapters 5, 33, 50, & 51
The following is in addition to the eReserve for this week:
Corporate social responsibility, in Business ethics. Rice Univ. OER.
Justia. (2016). Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).
Ohlheiser, A. (2014, April 22). The Supreme Court rules in favor of Michigan’s affirmative action ban. The Atlantic.
ACLU. (2013). Schuette v. Coalition to Defend Affirmative Action fact sheet.
Liptak, A. (2016, June 23). Supreme Court upholds Affirmative Action program at University of Texas. New York Times.
Yu, C. & Cheung, K. (2017, September – December). Rethinking the Dworkinian forward-looking approach: Is Affirmative Action compatible with
BUSN 623 | LESSON 5: ADMINISTRATIVE AGENCIES AND EMPLOYMENT LAW
Topics to be covered include:
- Administrative agencies
- Employment Law
This lesson covers two important topics in business law—administrative agencies and employment law. Administrative agencies are sometimes called the “fourth branch” of government because they are created by Congress and their rules and regulations have the authority of law. Employment law is important because federal and state law affects many people employed and terminated from employment.
Creating Administrative Agencies
The U.S. Constitution provides the basis for creating federal administrative agencies. Article I Section 1 provides that all legislative powers granted in the document are provided to Congress. Section 8 of Article I provides that Congress shall have the power to make all laws that are necessary and proper for carrying into execution the powers listed in earlier sections as well as all other powers vested by the Constitution in the government or in any department or officer of the government.
Congress has the power to create agencies by passing legislation. The power of Congress to delegate its power to an agency is referred to as the delegation doctrine. The legislation that permits Congress to give power to an agency is called an enabling act. Agencies are specialized bodies because they deal with problems relating to specific subject areas, thus acquiring an abundance of knowledge relating to specific areas and applying this knowledge to accomplish the purposes for which they were created.
The first administrative agencies were the Departments of State, War, the Navy, the Treasury and the office of the Attorney General. By the mid- to late-1800s, the Interior Department, Department of Justice, and Post Office Department were added as agencies. Independent regulatory commissions made their first appearances after the Civil War and into the early 1900s. Their purposes were to assist in establishing order to the growth of industry. The Interstate Commerce Commission was the first of the independent regulatory commissions, and it was established to curb excessive rates the railroad companies were requiring the farmers to pay to ship their products to market.
During the late 1800s and early 1900s, writers began exposing the unsanitary practices in the meat industry and other corruptions in industry and society. These writers, called “muckrakers,” dug up muck (or dirt) and exposed corrupt practices to the public. As a result, additional regulatory commissions such as the Food and Drug Administration (FDA) were established to protect the public from mislabeled drugs and adulterated foods and new food inspection laws were passed.
Changing Role of Administrative Agencies
These men building a road were part of the Works Progress Administration Program (WPA).
The role of administrative agencies changed after the Great Depression with the implementation of the New Deal. President Franklin D. Roosevelt’s New Deal was a program to put people back to work and to kick-start the economy after the devastating effects of the stock market crash and depression.
In 1946 Congress passed the Administrative Procedure Act and set standards for the agencies to use when they exercised their lawmaking power. During the 1960s and early 1970s agencies used their powers to expand their roles in consumer protection. The Occupational Safety and Health Administration (OSHA) was created and the Consumer Product Safety Commission (CPSC) was created.
During the mid- to late 1970s critics of big government and the numerous rules and regulations of agencies helped to cause the government to cut back on the role of agencies. President Ford had agency officials use a cost-benefit analysis in developing regulations and President Carter strengthened White House review of regulations. In the 1980s President Reagan assumed more control over agency rulemaking and used measures to reduce some of the burdens of the regulations. President Clinton permitted the White House to exert control over agency proceedings and President G.W. Bush did the same.
Types of Administrative Agencies
Independent agencies and executive departments (and agencies) are the two types of federal administrative agencies. Their structures and functions are different. Typically, an independent agency is made up of a bipartisan commission or board that has five to seven members who are appointed by the President and serve for a fixed term. They are subject to Senate confirmation and cannot be removed except for good cause. Generally, the rules established by the independent agency may be reviewed only by Congress.
Examples of independent agencies include the following:
- Federal Trade Commission (FTC)
- Federal Communications Commission (FCC)
- Consumer Product Safety Commission(CPSC)
- National Labor Relations Board (NLRB)
An executive agency falls within the departments of the executive branch of government and
has a single director or administrator who is appointed by the President. Its members serve at the pleasure of the President because they have no fixed term of office.
Examples of executive agencies include:
- Occupational Safety and Health Administration (OSHA)
- Veterans Affairs (VA)
- Small Business Administration (SBA)
Functions of Administrative Agencies
Agencies usually have executive, legislative and judicial powers. They make rules and regulations (legislative); investigate businesses and compliance issues (executive); and prosecute and rule on violations (judicial).
Their legislative rulemaking powers can be formal, informal or hybrid.
Formal rulemaking requires the following:
- Notify the public in the Federal Register of a newly proposed regulation
- Hold a public hearing for input on the proposed rule/regulation
- Make findings
- Publish the findings
- Promulgate the regulation if the findings support the new rule
Informal rulemaking requires the following:
- Draft proposed new rule
- Publish the proposed rule in the Federal Register
- Ask for written comments to the proposed rule
- Write a final draft of the new rule
A hybrid rulemaking process includes aspects of both informal and formal rulemaking.
Some agencies have the power to license an activity. For example, the Nuclear Regulatory Commission has the power to approve (or not approve) the establishment of a nuclear power plant.
- Compliance Investigations
An agency’s executive authority includes investigating businesses and compliance issues. For example, the FTC investigates unfair acts and deceptive practices. Title 15, Section 45 of the U.S. Code states that unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are unlawful. It also states that the FTC is empowered and directed to prevent persons, partnerships, or corporations (with some exceptions) from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce. An act may be unfair, deceptive, neither unfair nor deceptive, or both unfair and deceptive. The same is true for a practice.
The Federal Deposit Insurance Corporation (FDIC) defines unfairness:
“An act or practice is unfair where it
- causes or is likely to cause substantial injury to consumers;
- cannot be reasonably avoided by consumers; and
- is not outweighed by countervailing benefits to consumers or to competition.
Public policy, as established by statute, regulation, or judicial decisions may be considered with all other evidence in determining whether an act or practice is unfair” (FDIC, 2016).
- Deceptive Acts
Deceptive acts consist of:
“An act or practice is deceptive where
- a representation, omission, or practice misleads or is likely to mislead the consumer;
- a consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances; and
- the misleading representation, omission, or practice is material”(FDIC, 2016).
- VGC Corporation Example
A recent case investigated and prosecuted by the FTC involved VGC Corporation of America, a company that advertised a vacation package it claimed was worth thousands of dollars. Consumers were instructed to call a toll-free number and answer a trivia question. When the consumers were told they had won the prize, they were told they would receive their prize when they paid $400 in fees and taxes. Consumers complained because they did not receive their vacation as the company had promised. The State of Florida’s Attorney General’s Office and the FTC worked together and filed suit against the company, alleging a violation of both federal and state laws. A settlement was reached and the corporation may no longer sell vacation packages and must refund the victims. The FTC is sending more than 50,000 checks to people who paid more than $530,000 collectively to the company for vacations they did not receive (North Carolina Consumers Council, 2017).
If complaints are lodged with the FTC, the commission investigates and requests the violator voluntarily comply with the Commission’s request to stop the practice/act. The compliance request is not an admission of guilt but a promise not to do the act in the future. If the consent order is not signed, then the FTC files a formal complaint. A hearing is held before an administrative law judge. There is no jury. This decision, that includes findings of fact and conclusions of law becomes final unless appealed within a specified time period. The first step in the appellate process is to appeal to the full commission and then, if appealed after the full commission’s decision, the appeal is taken to the federal Circuit Court of Appeal. Courts on appeal do not reweigh facts or determine the credibility of witnesses. If there is an appeal to a court, the legal arguments that may be raised include:
- Whether the ruling was unconstitutional
- Whether the agency violated the constitutional standard
- Whether the agency’s act exceeded the scope of its power
In a case such as the VGC Corporation, the case may be filed in a state court in which the deceptive practice/act has taken place instead of being heard by the administrative agency.
State and Local Administrative Agencies
State legislatures have the power to create agencies and state constitutions provide for legislatures to have that power. There are also state executive agencies. The state agencies are similar to the federal agencies. In many states, the state’s Attorney General’s Office is the agency that handles complaints of unfair acts and deceptive practices.
Local county and municipal governments have administrative agencies, also. Boards that regulate land use (zoning boards) are an example of a municipal/local administrative agency.
LIMITATION OF POWERS
Administrative agencies do not have unlimited powers. The following are sources of limitation:
- Executive Branch
- Appointment authority
- Office of Management and Budget
- Executive Orders
- Legislative Branch
- Oversight power
- Investigative power
- Power to terminate/shut down the agency
- Power to not approve nominations made by the Executive Branch
- Judicial Branch
- Power to reverse the agency’s decision
- Power to modify the agency’s decision
Employment law includes a broad array of topics—from federal regulations, worker’s compensation, unemployment compensation, and immigration law to labor unions and management issues and discriminatory practices.
Unemployment Laws that Affect Employees
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- Unemployment Compensation
Employees who have been terminated from jobs through no fault of their own, may apply for unemployment compensation. Each state has its own laws and requirements for eligibility and administers its program through a department called Workforce Development or something similar. The purpose of this compensation is to provide workers income for a given period of time or until they find a new job, whichever occurs first. Employees must make a minimum required amount and may not be a self-employed contractor to collect benefits. Also, the employee must have been in the workforce for a certain number of months—usually six—in order to qualify. Not all reasons for leaving a place of employment will qualify a person for unemployment compensation. Downsizing and layoffs usually qualify a person for unemployment compensation. In some instances, even if an employee is fired, he or she may collect unemployment compensation. However, quitting a job may disqualify a person from obtaining benefits. The former employee must also be actively seeking work during the time he or she has applied for and is receiving benefits.
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- Fair Labor Standards Act
The Wage and Hour Division of the Department oversees the Fair Labor Standards Act (1938), which applies to federal employees. Under the FLSA, there is a minimum pay rate for employees who are subject to the Act. Employees who work more than 40 hours per week are to be awarded overtime pay, which is based at one and a half times the employee’s regular pay rate. Most states also have laws relating to wages and hours and some states have a higher minimum wage than the rate under federal law.
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- Consolidated Omnibus Budget Reconciliation Act (COBRA)
This Act was passed in 1985 to provide employees continuity in health insurance when a “qualifying event” occurs. A qualifying event is an event that causes an employee to lose health insurance coverage. The amount of time for extended coverage varies. Events that trigger COBRA coverage include:
- Most reasons for termination of employment
- Reduced work hours
Spouses are also subject to the qualifying events and may be eligible for COBRA insurance coverage.
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- Worker’s Compensation
These laws cover injuries that occur on the job. They are state laws and are based on a “no fault” concept. They are another form of strict liability because if an employee is injured in the scope of his or her employment, he or she is entitled to benefits. Benefits include medical and related expenses, lost wages, and disability benefits. The amount of benefits an employee may receive must be identified, as in a negligence case, and after the amount of disability that an employee has is determined, a “schedule” of injuries/rates is used to determine disability benefits. As in other types of strict liability cases, the employer in worker’s compensation cases is strictly liable because he or she is in a better position to make the workplace safe and he or she is the person with the “deep pocket” who is in a better position to pay for the injuries of the employee. The payments to the employee are not made directly from the employer to the employee but are paid from the funds the employer pays into the business’s worker’s compensation insurance account.
Workman’s Compensation Claims
If a person is injured in the course of his or her employment, the employee files a claim with the workers’ compensation board. If the claim is denied, the injured employee may have a hearing before a hearing officer. If the claim is denied by the hearing officer, the employee may have the case heard before an administrative law judge. If the claim is again denied, the claimant may ask the entire board to hear the case. Once all of the employee’s administrative remedies have been exhausted, the claimant may appeal to the state court of appeals and obtain a judicial review. The following is a case that was appealed by the insurance company representing the claimant’s company to the state appellate court because the claimant had prevailed at each level of the administrative process. The issue was the meaning of the term “in the course of employment” because the spouse of a decedent was awarded worker’s compensation benefits for her husband’s death.
In Manous, LLC v. Manousogianakis (2005), a widow brought a worker’s compensation claim against defendant employer, seeking benefits arising from the murder of her husband while he was at work. The Worker’s Compensation Board of Indiana affirmed the decision of a Single Hearing Member which found that the husband was murdered in the course of his employment, that his death arose out of his employment, and that the widow was entitled to benefits. The employer appealed. The facts of the case were that the husband was the president of the corporate employer and worked at a restaurant operated by the employer. The husband was shot to death at the restaurant. On appeal, the appellate court found that the murder could not be explained, and so it was classified as a neutral risk, one that was neither personal to the claimant nor distinctly associated with the employment and that it was a fair inference that the husband was engaged in business-related activities when he was murdered. There was no evidence that any other activity was conducted on the premises and there was a rebuttable presumption that the injury arose out of the employment. The appellate court held the burden was on the employer to show that the injury was the result of a cause personal to the claimant and that the Board properly found that the employer failed to overcome the presumption that the husband’s murder arose out of his employment.
Other Employment Laws
FAMILY AND MEDICAL LEAVE ACT OF 1993
This federal law applies to companies with 50 or more employees. Leave is up to 12 weeks within a 12-month period and covers illnesses, birth, adoption, and placement of foster children. If an employer violates the Act, he/she/the company is subject to damages, the payment of attorney fees, costs of the proceeding, and if the violation is done with bad faith, the employer may be liable for treble damages.
OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)
OSHA sets standards for workplace safety, enforces those standards, and presents educational programs to assist companies/employers in complying with safety standards in their places of employment. Its mission is to prevent workplace injuries, illness and deaths. The Department of Labor administers OSHA but there are regional and area offices as well as states acting in partnership with the federal agency. State plans for workplace safety must be at the least as effective as the federal program.
Employees have right of privacy in the workplace, but employers have the right to monitor employee actions. The facts relating to situations vary, and whether or not the employer has violated an employee’s privacy rights will depend upon what acts have taken place, whether a company policy is required, whether a policy that is in place violates the law, and the purposes of the employer’s actions. The main issues in employee privacy rights relate to the use of telephones and emails during working hours, employee drug testing, and other testing such as skills tests and medical tests for job safety and performance.
There are many sources of immigration law — the U.S. Constitution, Congressional legislation, and agency regulations and adjudications. The State Department issues visas for aliens to enter the United States. A visa does not guarantee entry into the United States. U.S. Customs makes that determination at the point of entry where the alien is asking permission to enter the country. Visas that are issued by the State Department may be for permanent or temporary entry. “Green card” holders are those who have applied for permanent visas. Some visas are granted for employment purposes. An H-1B visa is for a professional or specialty occupation and is limited to a specific number. An employment-based visa, such as an EB-1 visa, is regulated by specific requirements for each occupational group.
The Department of Labor is involved with investigation and enforcement of workforce laws relating to immigration. The Department of Justice is involved in employer compliance with immigration laws. Immigration and Customs Enforcement (ICE) is the federal agency responsible for workplace enforcement, audits, and arrests of employers who violate immigration-related workplace laws.
Visa laws change, and employers must be aware of the current law when they want to employ aliens.
Labor unions are an important part of the American workforce. In order to understand the functioning of the National Labor Relations Board (NLRB) it is important to have a basic understanding of the following laws relating to labor unions:
- The Wagner Act (1935)
- The Taft Hartley Act (1947)
- The Landrum-Griffin Act (1959)
The Wagner Act (1935) was the first major law addressing the formation of labor unions. It provided for collective bargaining in order to negotiate labor disputes, disputes about wages and hours and disputes about conditions of employment. The purpose of the law was to have peaceful settlement of those issues.
The Taft Hartley Act (1947), which was passed after the end of World War II when veterans were returning to the workforce in large numbers, accomplished four goals:
- Barred unions from engaging in specified unfair labor practices and provided remedies when they did engage in those practices;
- Allowed employees to refrain from engaging in collective activity;
- Made bargaining agreements enforceable in federal District Courts; and
- Provided damages as a remedy for employees who were injured by prohibited union activities.
The Landrum-Griffin Act (1959)
- Governed the internal operations of labor unions;
- Gave employees protections against union activities;
- Required unions to provide financial disclosures; and
- Provided penalties for unions that participated in financial abuses.
The National Labor Relations Board
The National Labor Relations Board (NLRB) is an administrative agency that enforces and interprets the Wagner Act and subsequent labor laws that are part of the 1935 National Labor Relations Act (NLRA). It monitors the conduct of employers during elections being held to determine whether workers want to be represented by a union. The board also monitors elections to prevent and remedy any unfair labor practices of the employer or the union.
The NLRB has jurisdiction over any business that “affects” commerce, with a few specific exceptions such as federal and state governments, employees in the transportation industry, independent contractors, agricultural workers, and household domestics. If there is an allegation of an unfair labor practice, the procedure involved in filing a complaint, obtaining a hearing, and having a decision rendered is similar to the procedure in other administrative agency cases. Before a court can hear a case involving an unfair labor practice, the alleged injured party must “exhaust administrative remedies,” which means pursuing each step of the administrative process before asking a court to render a decision on the issue.
The Collective Bargaining Process
The collective bargaining process begins after the workers have voted to have a union represent them and the union has been certified. A certain procedure must be followed in the process and the process must take place in good faith. However, the collective bargaining process does not require that an agreement be reached. Subjects of mandatory collective bargaining include:
- Pay rates
- Hours of employment
- Other terms and conditions of employment
All other subjects are permissible topics for collective bargaining.
Strikes, Boycotts and Picketing
Strikes are the temporary, concerted withdrawal of labor. There are lawful strikes and unlawful strikes. Lawful strikes may be economic strikes or unfair labor practice strikes. The two are distinguishable based on the following differences:
An economic strike is:
- a non-violent work stoppage for better terms and conditions of employment
- a non-violent work stoppage in protest against an employer committing an unfair labor practice
- sit-down strikes
- partial strikes
- wildcat strikes
- jurisdictional strikes
- secondary strikes
- strikes with violence or blockading
A boycott is a refusal to deal with, purchase goods from, or work for a business. Boycotts are classified as primary and secondary. Primary boycotts are legal because they involve the refusal of employees to purchase goods and/or services of their employers. Secondary boycotts are illegal because they involve attempts to induce a third party to refuse to deal with the employer.
Picketing is the protesting of workers and/or others outside the place of employment or other location where an event is taking place. In the labor situation, the purpose of the picket is to inform those passing by that there is a labor dispute.
The Fourteenth Amendment to the U.S. Constitution prohibits discrimination against race, ancestry, and ethnicity. Statutes, both state and federal, also prohibit employment discrimination.
The Equal Pay Act of 1963 prohibits wage discrimination on the basis of sex. It defines “equal work” and “extra duties” and provides exceptions to those doctrines. Legal justification for work that is not “equal” may be due to statutory exceptions, seniority systems, merit system, and factors other than sex.
The Civil Rights Acts of 1964 and 1991 prohibit discrimination based on race, color, religion, sex, and national origin. These acts apply to companies with more than 15 employees that affect interstate commerce. In 1994, the U.S. government was added as an employer that could not discriminate on the groups identified earlier. Title VII set forth the list of protected classes and for that reason, those protected may be referred to as the protected classes within Title VII.
In order to prove discrimination of a protected class there must be disparate treatment, a disparate impact or harassment.
Disparate treatment is where one employee is treated less favorably than others due to his or her race, color, religion, sex, or national origin. Disparate impact involves situations where one employee appears to be treated neutrally but an employment policy has a discriminatory impact on the person because he or she is within a protected class. Harassment may occur as the result of the actions of an employer or co-worker. It may be sexual harassment, same-sex harassment, or result because the person doing the harassing has created a hostile work environment.
If a person believes he or she is being discriminated against, a claim is usually filed with the state agency, which is often called the Equal Employment Opportunity Commission (EEOC). If there is no state agency, the claim may be filed with the federal agency. The respondent has a time period within which to respond, and if the discriminatory practice is not eliminated voluntarily by the respondent, the EEOC may file a lawsuit against the respondent. If the respondent is not sued by the Commission, the claimant may file a private cause of action.
Age Discrimination in Employment Act of 1967
A person who is 40 years old, or older, may not be discriminated against in companies in industries that affect interstate commerce, if the company has 20 or more employees, or other companies identified in the statute. The Act does not apply to state employers.
Three elements are required to be proven in order to establish age discrimination. They are:
- Age itself (being in the age group of 40+) because age is a statutorily protected class
- Being qualified for the position he or she held
- Being terminated under circumstances giving rise to the inference of discrimination
An employer may have statutory defenses and a claimant may seek EEOC or private action.
THE REHABILITATION ACT OF 1973
This Act applies to the federal government or to employers who have government contracts and was enacted to prevent discrimination against handicapped persons.
THE AMERICANS WITH DISABILITIES ACT (1990)
This Act was also passed to prevent discrimination against handicapped persons. “Handicap” is defined broadly and includes a variety of impairments. It is applicable to employers with more than 15 employees. There are certain questions that may not be asked during interviews and employers must make reasonable accommodations to employees with known physical or mental disabilities unless making those accommodations would cause undue burden on the employer.
Employers sometimes take affirmative action to create a balanced workplace. However, issues arise because some argue this is reverse discrimination. If it is reverse discrimination, then there is a violation of the Fourteenth Amendment’s Equal Protection Clause.
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