978-1305575080 Chapter 38 Solution Manual Part 2

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FACTS: Striking pilots of Eastern Airlines, Inc., made an unconditional offer to return to work on November

22, 1989. As of that date some 227 new-hire replacement pilots were in training and had not

obtained certificates from the Federal Aviation Administration permitting them to fly revenue flights.

The striking pilots contended that the trainees were not permanent replacement pilots on the date

they offered to go back to work because the trainees could not lawfully fly revenue flights. Eastern

contended that the new-hire pilots were permanent employees and as such should not be

displaced.

ISSUE: Were the trainees permanent replacements who could not be displaced?

REASONING: The pilots positions were not filled by permanent replacements at the time the striking pilots

unconditionally applied to return to work. The new-hire replacement pilots were not qualified to fill

the positions at that time. Giving preference to trainees over returning strikers would discourage

employees from exercising their right to strike.

H. Strike and picketing activities

1. Rights of strikers

2. Picketing (in front of employer’s place of business)

I. Regulation of internal union affairs

1. Democratic standards are required by the Labor-Management Reporting and Disclosure Act – review

2. Regulation of election of officials and financial reporting

III. What are the Benefits in an Employment Relationship and How Are They Regulated?

A. ERISA: fiduciary standards and reporting – must make detailed reports to the Secretary of Labor

B. Vesting required

C. Funding

D. Termination insurance: Pension Benefit Guaranty Corporation – financed by employers

E. Enforcement

IV. What Regulations Exist for Employee Security?

A. Unemployment compensation

1. Eligibility

2. Funding – employers all taxed based on past experience

B. Family and medical leaves of absence

1. Review the Family and Medical Leave Act of 1993 benefits

2. Covers leave for illness or birth in family

C. Family and Medical Leaves (FMLA)

1. Up to 12 weeks of unpaid leave during any 12-month period

2. For birth, adoption of child or care of spouse, parent or child

D. Leaves for military service under USERRA

1. Right to prompt reemployment for returning reservists

2. Protections for those disabled in military duty

CASE BRIEF: Serricchio v. Wachovia Securities, LLC

685 F. 3d 169 (2d Cir. 2011)

FACTS: The plaintiff, Michael Serricchio, was in the Air Force Reserve while working for the

defendant, Wachovia Securities, and after the events of September 11th, plaintiff was called for

active duty. After returning from active duty, plaintiff sought to resume his employment with

defendant in a position with comparable earnings and advancement potential. The reemployment

offer would have reduced his clients from well over 100 to just a handful and a diminished earnings

potential. Plaintiff sued, claiming the employment offer did not satisfy defendants obligation to

reemploy him after deployment and did not comply with the USERRA.

ISSUE: Was the position offered to plaintiff post deployment comparable to the one he held before

his military leave?

REASONING: The court held that the defendant did not offer the plaintiff a position comparable to his previous

employment. The court awarded back pay, liquidated damages, attorney’s fees and costs, and

interest totaling $1.64 million.

E. Social security

V. What Regulations for Protection of Employee Safety Exist?

A. Employee’s health and safety

1. Occupational Safety and Health Act of 1970

2. OSHA has had a stormy past. Have the students conduct some outside research on the reasons behind

3. The Secretary of Labor sets standards under OSHA’s authority

CASE BRIEF:SeaWorld of Florida, LLC v. Perez

748 F. 3d 1202 (D.C. Cir. 2014)

FACTS: On February 24, 2010, a performance was still in progress when Tilikum, a 32 year old

killer whale, seized SeaWorld trainer Dawn Brancheau and pulled her off her platform into the pool

causing her death. The Secretary of Labor issued citations alleging two instances of “willful”

violations of the general duty clause for exposing trainers to recognized hazards of drowning or

injury when working with killer whales during performances. The Secretary of Labor set forth

abatement procedures prohibiting trainers from working with whales unless the trainers are

protected through the use of physical barriers or the use of decking systems. The Secretary

proposed a penalty of $70,000. SeaWorld appealed, contending its training adequately controlled

the risk. And, it asserted that trainers formally accept and control their own exposure to risks like

the risks inherent in much of the sport and entertainment industries.

ISSUE: Did SeaWorld expose its employees to conditions that would constitute a “recognized

hazard” under OSHA?

REASONING: The evidence showed that the killer whales pose a hazard despite safety measures taken by

SeaWorld. The court refused to recognize assumption of the risk as a defense.

DISCUSSION POINTS: Thinking Things Through

Taking Chances or Shortcuts in Violation of OSHA Standards Is Bad Management

OSHA’s power is another example of Congress’ use of the commerce clause. Since most everything manufactured

today in the U.S. has some interstate implication, Congress is entitled to regulate any aspect of the trade between the

states. As the enacting statute states, OSHA is designed to “preserve the country’s human resources.” Leaving the

human aspect aside, a uniform national law regulating safety in the workplace serves to prevent one state from

granting an economic advantage to its manufacturers by having weak safety laws. These weak safety laws confer a

benefit to employers whose price is ultimately paid by the maimed and killed workers of that state.

In the Whirlpool v. Marshall case, if the only work scheduled and available for the two employees on the shift in

question was that of maintenance work on the screens, and the employees refused this work, the employer would not

appear to have discriminated against the employees by sending them home. This would be especially so if the

company could show a practice of sending employees home when no work existed. However, the employees may be

entitled to a minimum number of hours of pay under the collective bargaining agreement.

If there was sufficient work available for the two men to occupy their time for their regular shift, other than the

disputed work, it would appear that the employer discriminated against the two men by sending them home without

work and pay. That is, if other employees in the plant in their work classification received eight hours’ pay for eight

hours’ work, and eight hours’ work other than the disputed work was available for the two men, then these two men

were treated less favorably than their fellow employees. The usual remedy for discrimination is to “make whole” the

individual for the loss suffered. In this case, it would be six hours’ pay for each of the two employees.

11. State right-to-know legislation

VI. What are the Compensations for Employees’ Workplace Injuries?

A. Compensation for employee’s injuries

1. Common law status of employer

a. Duties

b. Defenses

2. Workers’ compensation systems

CASE BRIEF: Bryant v. Wal-Mart Stores, Inc.

417 S.E. 2d 688 (Ga. App. 1992)

FACTS: The deceased was employed on a night restocking crew at Wal-Mart and suffered a stroke.

Medical personnel arrived in six minutes, but could not enter the store because all the doors were

locked, and no manager was present to open a door. By the time the medical crew entered, they

were unable to revive her, and she died fifteen minutes later. Bryant is the administrator of the

deceased. The state contends that false imprisonment occurred between the time the deceased

became ill and the time the medical team was able to enter the store. Wal-Mart contends that

workers’ compensation is the exclusive remedy. Judgment was for Wal-Mart. Bryant appealed.

ISSUE: Is worker’s compensation the exclusive remedy for the estate of a person who was prevented from

getting immediate medical attention?

HOLDING: Yes. Workers’ compensation is the employee’s sole and exclusive remedy for injury or

REASONING: Worker’s compensation is a form of strict liability in which the employer bears the cost of an

on-the-job injury in much the same way he would bear the cost of repairing a broken machine – it is

simply a cost of doing business. With this in mind, worker’s compensation is a way of passing on

the costs of such injuries in a predictable manner (i.e., it can be estimated and included as an

expense in a balance sheet). The alternative to worker’s compensation is to have each on-the-job

injury result in litigation, with all its unpredictable outcomes.

In most jurisdictions, worker’s compensation is limited to either work-related accidents or to injuries

that arise out of or in the course of employment. The result in Bryant depends on this latter, more

expansive, coverage since Bryant’s inability to receive medical attention arose out of her course of

employment.

VII. What are the Rights of Employees in the Workplace?

A. Privacy

1. Bill of Rights and 14th Amendment

2. But, employers often notify of waiver as a precondition of employment

3. Telephone conversation monitoring

4. E-mail monitoring

5. Text messages

a. They are electronic communication services

6. Property searches

a. Public employers permitted to search work areas

7. Drug and alcohol testing

a. Needed for public safety in many circumstances

VIII. What are the Laws on Employees and Immigration?

A. Governed by Immigration Reform Act

C. Employer must:

1. Verify citizenship or green card status

a. Acceptable document – three lists

2. Fill out Form I-9

D. No discrimination; only verification

ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. Unemployment compensation. Judgment for Evjen. To obtain unemployment benefits, an unemployed individual

must prove, among other things, that she or he is “available for work” and is unable to obtain suitable work. A

student’s unavailability for work during school hours is contrary to the concept of “available for work,” which

2. Employee privacy. Employers have wide latitude for monitoring e-mail messages. The federal statute makes an

3. Public policy exception to employment-at-will doctrine. Judgment for Hauck. Employment for an indefinite term

may be terminated at will and without cause. Public policy, as expressed in the criminal laws of the state and the

4. Right of employer to use inventions. Judgment for the defendant. An employer has a shop right or an

irrevocable license to use an employee’s invention or idea if the employee, in developing the invention or idea,

5. Discrimination for union activity. Section 8(a)(3) of the NLRA prohibits discrimination against employees

because of their union activity. The company violated this section when it fired the six workers in question. The

Students might be asked whether the employer has the right of free speech to say that “the last thing it needs is

union baloney.” The NLRB, under § 8(c) of the act, allows employer free speech, so long as the language

6. Discrimination for union activity. Job applicants, as well as employees, are protected from antiunion

discrimination. Because Wyman-Gordon officials were aware of Stark’s union activity, suspicion of discrimination

is justified. The questions regarding unions in the interview and Peevler’s evaluation referring to “third party

7. Improperly withheld wages and commissions. Employees have a right to compensation according to the terms

agreed upon by the parties. Under an at-will employment relationship, the employer can alter the terms of

Lowry’s approach in this case led to the loss of two national account managers. The mid-level manager deemed

some of the reductions taken from the commissions owed as ridiculous. In the long run, it is difficult to build a

successful organization treating employees unfairly. The best employees will leave and the remaining employees

A company often takes on the demeanor of its executives. Managers who find a way to cut corners on their

employees’ pay may set a tone for their employees to cut corners in their dealings with management and

8. Discipline for union activity; discipline for filing charges with OSHA. The evidence indicated that the layoff of

Richards for lack of work was a pretext. There was no reduction of work, but simply the substitution of two new

machines for the crane. The facts did not indicate that there was economic justification for the new machines,

which were not new technology. To the contrary, two employees would be required to do the work formerly done

Finally, the current collective bargaining agreement provided that no employee should be disciplined or

In the alternative, if the layoff was considered discipline by the employer, just cause did not exist. Richards would

9. OSHA protection against discrimination. OSHA inspectors cannot be present around the clock in every workplace

to enforce the act. Thus, each worker has the power to make a good-faith decision that there is danger. In the

10. Rights of economic strikers. The permanent replacement nurses have the right to remain in the jobs they held

during the strike; senior strikers have no right to displace them. Moreover, the replacement nurses have no

The use of the terms “junior” and “senior” refers to the relative standing of employees on the hospital’s seniority

11. Negligence and assumption of risks under the Federal Employer’s Liability Act. Judgment for Buffo. The Federal

Employer’s Liability Act allows recovery only when the employer is negligent. Here, the railroad was negligent in

12. Duration and termination of employment contract. Judgment for Phipps. The common law doctrine of

employment at will is subject to public policy exceptions. Clark contended that public policy exceptions should be

13. Employee privacy. No, the federal wiretap law was not violated because most courts have held that e-mail does

not belong to the employee. The e-mail system and all messages by employees belong to the employer. It is not

14. Workers’ compensation. The motion to dismiss the complaint was granted. The common law liability of the

employer cannot be stretched to include accidental injuries caused by the gross, wanton, or willful acts of the

LAWFLIX

The Molly Mcguires (1970) (PG)

Sean Connery plays a coal miner who is a leader in the union movement in the coal mines of Pennsylvania and West

Virginia.

management system for classroom use.