3. Genetic Testing
Employers are prohibited from using the results of genetic tests of employees and applicants to make
decisions about hiring, firing, placement, or promotion under the Genetic Information Nondiscrimination
1. I-9 Employment Verification
The U.S. Citizenship and Immigration Services (CIS)—part of the U.S. Department of Homeland Security—
2. Enforcement
U.S. Immigration and Customs Enforcement (ICE) officers conduct random audits and act on written
3. Penalties
These include civil fines of up to $11,000 for each unauthorized employee and criminal penalties of
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.
1. I-551 Alien Registration Receipts
An employer may hire a “self–authorized” noncitizen who (a) is a lawful permanent resident (as proved by
2. The H-1B Visa Program
838 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
3. Labor Certification
Before submitting an H-1B application, an employer must obtain a Labor Certification form from the U.S.
4. H-2, O, L, and E Visas
Temporary nonimmigrant visas are also available for agricultural seasonal workers, a company’s managers
1. Norris-LaGuardia Act
The Norris-LaGuardia Act of 1932, which protects peaceful strikes, picketing, and boycotts.
2. National Labor Relations Act
The National Labor Relations Act (NLRA) of 1935, which established employees’ rights to organize, to engage
in collective bargaining, and to strike. The NLRA prohibits employers from engaging in specific unfair labor
practices, including—
• 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.
a. The National Labor Relations Board
The National Labor Relations Board (NLRB) investigates employees’ charges of employers’ unfair labor
practices, and can file a complaint against an employer or issue a cease–and-desist order 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.
b. Workers Protected by the NLRA
An individual must be an employee or a job applicant (or a union organizer).
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 839
ADDITIONAL BACKGROUND—
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 century—
membership in unions affiliated with the American Federation of Labor had been more than twice as much in 1920. In
1933, Congress passed the National Industrial Recovery Act, which provided that “employees shall have the right to
organize and bargain collectively through representatives of their own choosing, and shall be free from the
strength, which was negligible at the time, than to a fear that unorganized workers might go on strikes that would
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), headed by Senator Robert
Wagner, to mediate labor disputes. Employers and the NRA resisted the NLB, which had no enforcement powers.
In April 1934, a new wave of strikes began—auto workers, truck drivers, longshoremen, and textile workers. In
June, with a steel workers’ strike imminent, Congress passed a resolution empowering the president to establish the
National Labor Relations Board (NLRB), an agency independent of the NRA. Three weeks before the NIRA was to
instability and that refusals of employers to bargain collectively lead to strikes. These disturbances impede the flow of
The NLRA gave the NLRB enforcement powers.
Employers viewed the NLRA as a drastic piece of legislation. Those who opposed the act claimed that the
Constitution’s commerce clause (Article I, Section 8, Clause 3) did not grant Congress the power to regulate labor
relations. They argued that labor was subject to state, not federal, law. Those who were willing to admit that labor
regulation did fall under the commerce clause claimed that the NLRA created an undue burden, which therefore
rendered it unconstitutional. The constitutionality of the act was tested in NLRB v. Jones & Laughlin Steel Corporation.
3. Labor-Management Relations Act
The Labor-Management Relations Act (Taft-Hartley Act) of 1947 allows state right-to-work laws, which
makes it illegal to required union membership for continued employment. The act proscribes certain union
practices, including—
4. Labor-Management Reporting and Disclosure Act
The Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act) of 1959, which established an
B. UNION ORGANIZATION
The first step in union organizing is to have the workers sign authorization cards.
1. Union Elections
If a majority of the workers sign the cards, an employer may recognize the union as their representative. If
2. Union Election Campaigns
During an election campaign, the employer can limit campaign activities on company property during
CASE SYNOPSIS—
Case 34.3: Local Joint Executive Board of Las Vegas v. National Labor Relations Board
Aladdin Gaming, LLC, operates a hotel and casino in Las Vegas, Nevada. In 2003, the Local Joint Executive Board of
Las Vegas, the Culinary Workers Unions Local 226, and the Bartenders Unions, Local 165, AFL-CIO began a campaign to
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 841
…………………………………………………………..……………………………………………………………………
Notes and Questions
Why might a union object so strenuously as to pursue litigation on the basis of such a seemingly innocuous, and
arguably truthful, statement as the manager’s comment at the center of this case? The results of the union election
may have been close. There may have been other activity and comments that could not be proved. This may have
been a “test” case to set a certain standard for union election conduct. There may have other circumstances, such as
the personalities involved or the employment or geographic context in which unionization was sought, that influenced
the pursuit of this case.
ANSWER TO “WHAT IF THE FACTS WERE DIFFERENT?” IN CASE 34.3
If management employees had interrupted union-organizing activities twenty-five times rather than just two,
would the outcome of this case have been different? Why or why not? The result might have been different (the court
could have reviewed those circumstances to conclude that the employer, through its representatives, had engaged in
illegal activity). As the court pointed out, the test is whether “the employer’s conduct, under the circumstances, tends
ANSWER TO “THE LEGAL ENVIRONMENT DIMENSION”
QUESTION IN CASE 34.3
An administrative law judge (ALJ) originally ruled that the two brief verbal interventions by the company’s human
resource managers were in violation of the National Labor Relations Act. Why might the ALJ have made this ruling? The
842 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
administrative law judge in this case ruled that the employer’s managers’ interruptions of the employees’ discussion of
union cards violated the National Labor Relations Act because those interruptions interfered with the employees’
“protected union activity” under the previously applicable objective test.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Recent cases concerning conduct during union election campaigns include the following.
• National Labor Relations Board v. Kentucky Tennessee Clay Co., 295 F.3d 436 (4th Cir. 2002) (coercive and
threatening conduct by employees who were apparent agents of the union, during the representation election,
materially affected the election results, so that the National Labor Relations Board abused its discretion in certifying
C. COLLECTIVE BARGAINING
The central legal right of a union is to engage in collective bargaining on the members’ behalf. In collective
bargaining, as in most business negotiations, each side uses its economic power to pressure or persuade the other
side to grant concessions. Both sides must bargain in good faith. Refusing to bargain in good faith without
justification is an unfair labor practice.
D. STRIKES
When collective bargaining results in an impasse, a union may call a strike.
1. The Right to Strike
2. Striker Rights after a Strike Ends
In an economic strike, strikers have no right, however, to return to their jobs (although employers must give
former strikers preferential rights to any new vacancies and also retain their seniority rights). After an
unfair labor practice strike, an employer must give the strikers back their jobs.
TEACHING SUGGESTIONS
1. Students may have a difficult time understanding that the development of effective labor law is fairly modern and
is still going through a growing process. For example, some states have right–to-work laws and some do not. Students
might be asked to discuss the advantages and disadvantages of right-to-work laws. Students may also be asked to
discuss recent developments concerning unions, which seem to be declining in popularity. What has contributed to
this decline? Is management today more responsive to the needs of employees than was management of the
nineteenth and earlier twentieth centuries?
to a union and their experiences with the union. What were their attitudes towards elections, strikes, collective
3. Ask students to discuss with the class their own families’ experiences with immigration and employment. Who
arrived when? What difference did different arrival times make in terms of employment?
4. To discuss the material in this chapter, you might start from the students’ personal perspective. Undoubtedly,
they, or at least many of them, have had jobs. What was their chief concern? The money, the accomplishment, the
respect or friendliness of co–workers, the employer’s praise? If the chief concern was the money, they may also have
5. Society does not stand still, and neither can the law that governs it. The Family and Medical Leave Act of 1993
(FMLA) provides an excellent illustration of how the law can recognize and effect change. The FMLA reflects the
realities of today’s world. Nearly two-thirds of women with children now work, by choice or necessity. Also, about a
FMLA recognizes the changing face of America. From an ethical perspective, the act may be viewed as a choice on the
6. Students may be surprised to learn that their e-mail may not be private, technologically or legally, when it is sent
or received through their workplace. Students might be asked to discuss the advantages and disadvantages of this
circumstance. Would they rather work for an employer who monitors their communications or one who does not?
Why?
844 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
Cyberlaw Link
How might the existence of the Internet affect employees’ attempts to unionize and employers’ attempts to
prevent employees from unionizing? What are the legal questions and complications of monitoring employees’ use of
the Internet during working hours? What are some of the key points of a good policy regarding the use, and monitoring
of the use, of the Internet in the workplace?
DISCUSSION QUESTIONS
1. What are some important provisions of the Fair Labor Standards Act? The Fair Labor Standards Act (FLSA) of 1938,
2. Do federal labor laws cover all workers? No. Although coverage of the federal labor laws is broad and extends to all
3. What state and federal statutes protect employees from the risks and effects of employment-related injury, death, or
disease, and what is that protection? State workers’ compensation statutes establish procedures for compensating employees
4. What protection do employees have from the financial impact of retirement, disability, death, hospitalization, and
unemployment? Federal and state governments participate in insurance programs designed to offer protection in this area.
5. How does the law protect the privacy of employees? The Employee Polygraph Protection Act of 1988 prohibits most
employers from requiring, causing, suggesting, or requesting that employees or applicants take polygraph tests; using,
accepting, referring to, or asking about the results of polygraph tests taken by employees or applicants; and taking or
6. Discuss exceptions to the employment-at-will doctrine. Contract Theory Exceptions. Some courts have held that an
implied employment contract exists between employer and employee under an employer’s handbook, personnel bulletin, or
the like if the document states that workers will be dismissed only for good cause, and an employer who fires a worker contrary
7. Why should immigration be permitted? Currently, immigrants revitalize nations and their economies, as well as
enriching their cultures. In many countries, including the United States, the populations would grow increasingly older, resulting
in, among other things, fewer workers to support those who are retired. Immigrants contribute to economies in other ways,
8. Why should immigration be restricted? Immigration should be restricted in some way because a nation might find
9. Is penalizing employers the best approach to take in attempting to curb illegal immigration? Yes, because employment
is the primary motivation for those who would immigrate illegally. (Why else would anyone voluntarily leave their home to live
where they know nearly no one, likely do not speak the language or understand much of the culture, and would be unable to
participate in the government?) Sanctioning those who would employ illegal immigrants would reduce the employers’
10. What were the purposes behind the adoption of the National Labor Relations Act? The purpose of the NLRA was to
ACTIVITY AND RESEARCH ASSIGNMENTS
1. Invite a spokesperson from a local labor organization and a member of a local management organization to discuss one
3. Assign research into the various waves of immigration that have entered the United States, covering the identities of
the immigrants, their reception, their employment, and subsequent events.
EXPLANATIONS OF SELECTED FOOTNOTES IN THE TEXT
Footnote 2: Rebecca Wendeln, a twenty-one-year-old certified nursing assistant, worked at The Beatrice Manor,
Inc., in Beatrice, Nebraska, as a staffing coordinator. Aides told Wendeln that a patient had been improperly moved and injured.
When Wendeln reported this to the Nebraska Department of Health and Human Services, as required under the state Adult
Protective Services Act (APSA), her supervisor confronted her and ultimately she was fired. She filed a suit in a Nebraska state
court against Beatrice Manor, alleging in part that her discharge was a violation of the state’s public policy. A jury awarded
damages of $79,000. Beatrice Manor appealed. In Wendeln v. The Beatrice Manor, Inc., the Nebraska Supreme Court affirmed.
Under public-policy exceptions to the employment-at-will doctrine, an employer may not discharge an at-will employee for, for
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 847
example, filing a claim under the state workers’ compensation law. Similarly, an employee has a cause of action for retaliatory
discharge when she is fired for reporting nursing-home patient abuse, as state law requires.
To state a cause of action for retaliatory discharge under the public-policy exception recognized in this case, should an
employee be required to show that a report of abuse under the APSA was made in “good faith”? The state supreme court in the
Wendeln case held that a report of abuse under the APSA “must be based upon reasonable cause . . . to believe that a
vulnerable adult has been subjected to abuse or observes such adult being subjected to conditions or circumstances which
reasonably would result in abuse.” The court pointed out that the statute expressly requires this. But “[w]e find no reason to
write . . . an additional requirement [of good faith] into the public policy expressed by the APSA. . . . Such broadly encouraged
reporting [as the APSA requires] simply begins a further investigatory process which may or may not ultimately result in a
conclusion that the abuse actually occurred.”.
Is it fair to sanction an employer for discharging an employee who reports on the employer’s unsafe or illegal actions to
government authorities or others? Discuss. Yes, it is fair, because otherwise the rights of the employee to work in safe
conditions or to obey the law “could simply be circumvented by the employer’s threatening to discharge the employee if hr or
she exercised those rights.” The purpose of any law being violated would also be frustrated in such a circumstance.
Footnote 9: In Starbucks Corp.’s stores, baristas wait on customers and managers oversee customer service, process
paperwork, and develop revenue-enhancing strategies. Kevin Keevican began as a barista, in less than two years became a
manager, and quit three years later. Keevican and other former managers, including Kathleen Mims, filed a suit in a federal
district court against Starbucks, seeking unpaid overtime and other amounts. In Mims v. Starbucks Corp., the court dismissed
the claims. The plaintiffs were exempt from the FLSA’s overtime provisions as executive employees. An employee’s “primary
duty” is “what the employee does that is of principal value to the employer.” The factors are “(1) the relative importance of
managerial duties compared to other duties; (2) the frequency with which the employee makes discretionary decisions; (3) the
What duties qualify as “managerial tasks”? The court in the Mims case noted that under the FLSA regulations
“management” includes such activities as interviewing, selecting, training, and disciplining employees; setting pay rates and
hours of work; directing and assigning employees’ work; handling employees’ complaints; overseeing the budget and inventory;
ensuring workplace safety; and monitoring legal compliance. All of these tasks were responsibilities of Starbucks’ managers. In
the Mims case, the plaintiffs “performed many management tasks, including: interviewing applicants and deciding whom to hire
and promote for certain positions within their authority, training and supervising staff, evaluating staff performance, disciplining
848 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
some infractions, creating weekly work schedules, assigning staff’ s day-to-day tasks, deciding the amount of products to order,
overseeing their stores’ financial performance, controlling costs, and ensuring compliance with Defendant’s policies.” What
might the court have concluded if the store could have operated successfully without the plaintiffs’ performing their
“managerial” functions? In that circumstance, in the plaintiffs’ words, the “sum total of [Plaintiffs’] duties” would have shown
that their primary duty was “that of a barista, not a manager.” The court might then not have considered the plaintiffs to be
managers and could have held them eligible for overtime pay.
How have managers of retail outlets fared in other cases in which their exemption from overtime requirements was at
issue? According to the court in the Mims case, “with managers of retail establishments—who often perform managerial and
non-managerial tasks concurrently and perform non–exempt tasks to ‘teach by example’—the case law is replete with decisions
holding them to be exempt, notwithstanding the fact that they spent the majority of their time performing non-exempt tasks or
their need to obey corporate policies and/or follow the orders of their corporate superiors.” In issuing the new overtime
regulations, the U.S. Department of Labor (DOL) noted that “[f]ederal courts have found many employees exempt who spent
ANSWERS TO ESSAY QUESTIONS IN
STUDY GUIDE TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
BY HOLLOWELL & MILLER
1. What is the employment-at-will doctrine? What are its exceptions? Under the employment-at-will doctrine, either
employer or employee may terminate an employment contract at any time and for any reason, unless the contract specifies a
particular time period. In some states, statutes prohibit employers from discharging employees for whistleblowing. Federal
statutes may provide protection for whistleblowers, as well. Some courts have held that an implied employment contract exists
between employer and employee under an employer’s handbook, personnel bulletin, or the like if the document states that
2. What are important federal laws concerning labor unions? What specifically does each law provide? Norris-LaGuardia
Act. The Norris-LaGuardia Act (1932) protects peaceful strikes, picketing, and boycotts, and restricts federal courts enjoining
unions engaged in peaceful strikes. National Labor Relations Act. The National Labor Relations Act (1935) (NLRA) established
employees’ rights to organize, to engage in collective bargaining through representatives of their own choosing, and to engage
in concerted activities. The NLRA created the National Labor Relations Board (NLRB) to oversee union elections and to prevent
employers from engaging in unfair labor practices, which include: (1) interfering with employees’ efforts to form, join, or assist
labor organizations or to engage in concerted activities; (2) dominating a labor organization or contributing support; (3) dis-
REVIEWING—
EMPLOYMENT, IMMIGRATION, AND LABOR LAW
Rick Saldona began working as a traveling salesperson for Aimer Winery in 1977. Sales constituted 90 percent of
Saldona’s work time. Saldona worked an average of fifty hours per week but received no overtime pay. In June 2007,
Saldona’s new supervisor, Caesar Braxton, claimed that Saldona had been inflating his reported sales calls and required
Saldona to submit to a polygraph test. Saldona reported Braxton to the U.S. Department of Labor, which prohibited
Aimer from requiring Saldona to take a polygraph test for this purpose. In August 2007, Saldona’s wife, Venita, fell from
1. Would Saldona have been legally entitled to receive overtime pay at a higher rate? Why or why not?? Over 90
2. What is the maximum length of time Saldona would have been allowed to take leave to care for his injured
850 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
spouse? The Family and Medical Leave Act (FMLA) applied to Saldona’s employer, Aimer Winery, because Aimer had
leave to care for his injured wife.
3. Under what circumstances would Aimer have been allowed to require an employee to take a polygraph test? The
4. Would Aimer likely be able to avoid reinstating Saldona under the key employee exception? Why or why not? It is
unlikely Saldona was a “key employee” defined as those in the top ten percent of an organization. He had a sales
territory and reported to a sales supervisor. Hence, he was covered by the FMLA and his position would be protected.
DEBATE THIS:
The U.S. labor market is highly competitive, so state and federal laws that require overtime pay are unnecessary
and should be abolished. In a competitive market, arrangements for overtime pay would be dictated by the forces of
supply and demand for labor. There is no need for the government to step in to regulate this market.
Most employees have little bargaining power in the labor market. Consequently, without government regulations
with respect to overtime pay, employers would exploit the weakest employees, the ones that cannot seek alternative
employment.