978-1285770178 Lecture Note BL ComLaw 1e IM-Ch10 Part 2

CHAPTER 10: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 11

whole or in part.

Employers that make electronic communications systems (such as access to the Internet and e–mail)

available to their employees face some obvious risks. One risk is that e-mail could be used to harass other

employees. Another risk is that employees could subject the employer to liability by reproducing, without

company wins the suit, the legal fees incurred to defend against the claim could be devastating for your

profits.

INFORM YOUR EMPLOYEES OF THE MONITORING AND OBTAIN THEIR CONSENT

clearly understand their rights and duties with respect to the company’s communications system, they are

less offended by the surveillance.

SPELL OUT PERMISSIBLE AND IMPERMISSIBLE INTERNET USES

CHECKLIST FOR THE EMPLOYER

1. Inform employees that their Internet communications will be monitored, why monitoring is necessary or

desirable, and how it will be conducted.

whole or in part.

(not including the government, certain security service firms, and companies making and

distributing controlled substances) except when investigating losses attributable to theft. Exactly

what is prohibited is spelled out in the text.

2. Drug Testing

b. Private Employers

Some state constitutions or statutes may inhibit private employers’ testing. A collective

bargaining agreement may provide protection against testing. Random drug tests and “zero–

tolerance” policies have been upheld, however.

were ordered to complete a standard background check—the National Agency Check with Inquiries (NACI).

Robert Nelson and other Jet Propulsion Laboratory (JPL) private contract employees filed a suit in a federal

district court against NASA, claiming that the NACI violated their privacy rights. The court denied the plaintiffs’

request to enjoin the NACI, but the U.S. Court of Appeals for the Ninth Circuit reversed and issued the

injunction. NASA appealed.

part of a background check.

………………….………….………………………….………….………………………….………………..…………….

Notes and Questions

whole or in part.

Suppose that after the decision in this case, a JPL employee refuses to cooperate in a NACI

background check. What would be the most likely consequences? The contract employees subject to

the background check requirement are those with long-term access to government facilities. Most likely, any

JPL employee with such access who does not complete the NACI process would be denied access to JPL.

QUESTION IN CASE 10.2

The government’s interest in security has weighed more heavily in the balance against individual

rights, particularly the right to privacy, in the twenty-first century than in previous decades. Why? The

terrorist attacks on the World Trade Center and other targets on September 11, 2001, prompted the public

make decisions about hiring, firing, placement, or promotion under the Genetic Information

Nondiscrimination Act of 2008. Using the results to make employment-related insurance decisions

is also banned.

VII. Immigration Law

to work here.

1. I-9 Employment Verification

The U.S. Citizenship and Immigration Services (CIS)—part of the U.S. Department of Homeland

Security—supplies Form I-9, Employment Eligibility Verification, which an employer must complete

whole or in part.

a. Documentation

The employer must declare, under penalty of perjury, that an employee produced documents

establishing his or her identity and legal employability.

2. Enforcement

U.S. Immigration and Customs Enforcement (ICE) officers conduct random audits and act on

written complaints that allege an employer’s violation. A subpoena or warrant is not required. A

determination of a violation is subject to administrative review at an employer’s request. Defenses

include good faith and substantial compliance with documentation requirements.

B. THE IMMIGRATION ACT

Persons who immigrate to the United States to work include those with special skills, or “extraordinary

ability.” To hire such individuals, an employer must petition the CIS. An immigrant employee’s ability to

stay in the United States and to switch jobs here is limited.

2. The H-1B Visa Program

A sponsoring employer may obtain a visa for a person to work in the United States for three to six

years in a “specialty occupation” that requires highly specialized knowledge and a college degree.

The annual quota for this program is filled quickly each year.

4. H-2, O, L, and E Visas

Temporary nonimmigrant visas are also available for agricultural seasonal workers, a company’s

managers and executives, certain investors and entrepreneurs, and performers, athletes, and other

“acclaimed” individuals.

C. STATE IMMIGRATION LEGISLATION

16 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS

whole or in part.

Immigration is generally a federal matter. In Arizona, however, police officers who stop or detain an

individual and reasonably suspect that the person is an alien must determine his or her immigration

status. Immigrants are required to carry appropriate documents.

2. The Future of State Legislation

A. FEDERAL LABOR LAWS

Labor legislation outlined briefly in the text includes—

1. Norris-LaGuardia Act

• Interference with employees’ efforts to form, join, or assist labor organizations or to engage in

concerted activities for their mutual aid or protection.

• Domination of a labor organization or contribution of financial or other support.

• Discrimination in hiring or awarding of tenure to employees based on union affiliation.

investigates employees’ charges of employers’ unfair labor practices, and can file a complaint

against an employer or issue a cease-and-desist order.

ANSWERS TO BUSINESS QUESTIONS IN THE FEATURE

2. If your company instituted a policy stating stated that employees should “think carefully about

‘friending’ co–workers,” would that policy be lawful? Why or why not? Probably not. Why? Because this

CHAPTER 10: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 17

whole or in part.

policy would be considered overbroad and it would discourage communications among co–workers. If

b. Good Faith Bargaining

A party’s refusal to bargain in good faith over a mandatory subject can be an unfair labor

practice that may be reported to the NLRB.

National Labor Relations Act

When Franklin Roosevelt took the oath of president of the United States in the depths of the Great

Depression, less than 10 percent of the industrial work force was unionized. This was the lowest figure in this

General Hugh Johnson, Administrator of the National Recovery Administration (NRA), proved to be more

sympathetic to management than labor. By the second half of 1933, more than two-thirds of the largest

manufacturing companies had established company unions, and unorganized labor responded with the

greatest wave of strikes since 1919. Roosevelt responded by establishing the National Labor Board (NLB),

which had no enforcement powers.

weeks before the NIRA was to expire, it was declared unconstitutional by the United States Supreme Court in

Schechter Poultry Corp. v. United States 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).

In July 1935, Congress passed the National Labor Relations Act (NLRA), which was sponsored by

Senator Wagner. The NLRA states that unequal bargaining power between employees and employers leads

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burden, which therefore rendered it unconstitutional. The constitutionality of the act was tested in NLRB v.

Jones & Laughlin Steel Corporation. [301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937)]. In its decision, the

United States Supreme Court held that the act and its application were constitutionally valid.

• A union’s refusal to bargain with an employer.

• Certain types of picketing.

• Featherbedding (hiring more employees than necessary).

4. Labor-Management Reporting and Disclosure Act

CASE SYNOPSIS—

Case 10.3: Services Employees International Union v.

National Union of Healthcare Workers

breach of fiduciary duties. The court entered a judgment in SEIU’s favor. The defendants appealed.

The U.S. Court of Appeals for the Ninth Circuit affirmed. Section 501 of the Labor-Management Reporting

and Disclosure Act creates a fiduciary duty owed by union officials to the union as an organization, not only

the union’s rank–and-file members. Officials who divert union resources to establish a new competing union

If the defendants in this case had only expressed their opinions against the SEIU’s imposition of

trusteeship and charter of a new union, could they have been held liable for a breach of fiduciary

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workers from three separate unions, including UHW, into a new union chartered by SEIU. And the UHW

officials could voice their opposition. Neither of these choices would have breached the officials’ standard,

under Section 501 of the Labor Management Reporting and Disclosure Act, of responsibility and ethical

conduct in administering the affairs of the union.

QUESTIONS AT THE END OF CASE 10.3

1. What standard was at the core of the dispute in this case? Under Section 501 of the Labor

Management Reporting and Disclosure Act, officers of labor unions are held to a high standard of

responsibility and ethical conduct in administering the affairs of the union. This standard was at the core of the

2. To whom was this standard owed, according to the United Health Workers (the defendants)? As

noted in the answer to the previous question, under the Labor Management Reporting and Disclosure Act,

union officers are held to the highest standards of responsibility and ethical conduct in administering their

union’s affairs. According to the defendants in the Services case (the United Health Workers or UHW

officials), union officials owe this standard or duty to only the rank–and-file members of their union.

court? According to the court in the Services case, the defendants—the United Health Workers (UHW)

officials—could disagree with their affiliated union, the Services Employees International Union (SEIU)

regarding the SEIU’s proposal to move long-term care workers from three separate unions, including UHW,

into a new union chartered by SEIU. And the UHW officials could voice their opposition. “What they may not

do under the law,” stated the U.S. Court of Appeals for the Ninth Circuit, “is use their union’s resources to

defendants.