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CHAPTER 34
EMPLOYMENT, IMMIGRATION,
AND LABOR LAW
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 34.1—QUESTIONS (PAGE 663)
1A. Is it unfair to exempt employees to deprive them of overtime wages? Why or why not? The
general argument supporting the exemptions to the FLSA’s overtime requirements is that exempt
employees typically are paid more than wage earners who qualify for overtime. Additionally, exempt
employees generally receive annual bonuses to compensate them for the extra time and effort that they
put into their jobs. Some workers, though, workers complain that their annual bonuses are not enough
to compensate them for the hours they’ve worked. Also, for many workers the amounts of their
bonuses are not guaranteed. Consider Patty Smith’s situation in this case. The arrangement between
Smith and J & J was that J & J, at its discretion, could award her a bonus. In determining the amount of
the bonus, J & J considered the number of Concerta prescriptions issued in Smith’s territory. The
2A. J&J argued that Smith was exempt under either the administrative employee exemption or the
outside salesperson exemption. The district court found, though, that Smith did not qualify for the
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outside salesperson exemption. What single fact might have made Smith ineligible for the outside sales-
person exemption? The important fact in the district court’s reasoning was that Smith did not actually
CASE 34.2—QUESTIONS (PAGE 666)
THE ETHICAL DIMENSION
Did IBC take unfair advantage of the “letter of the law” by not granting Chalimoniuk a little more leave
time? After all, he was, in fact, dealing with his problem. Explain your answer. We do not have all the
details in this case, but Chalimoniuk had missed a lot of work due to alcoholism, including being drunk
and unable to come to work the days immediately before he sought treatment. Right after he finished
treatment he missed work again. He had missed a lot of work prior to this episode. It is not easy for
employers to scramble and replace workers who do not show up for wok when expected. Given the
costs IBC had incurred previously, the company, and other workers, cannot be expected to deal with the
costs imposed by unreliable workers.
THE LEGAL ENVIRONMENT DIMENSION
Although IBC won this suit, defending the case was costly. How can employers avoid such litigation?
CASE 34.3—QUESTIONS (PAGE 677)
WHAT IF THE FACTS WERE DIFFERENT?
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 em–
ployer’s conduct, under the circumstances, tends to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed” by the National Labor Relations Act. After the administrative law
judge’s ruling in this case, the National Labor Relations Board added, as “indicia of coerciveness” with
respect to an employer’s “surveillance” of employees’ activity, “the duration of the observation” or
interruption. Two incidents would not constitute as lengthy a “duration of observation,” interruption, or
CHAPTER 34: EMPLOYMENT, IMMIGRATION, AND LABOR LAW 295
interference as “two dozen similar incidents.” To reach a conclusion, the court might have considered
whether different employees were involved, the tenor of the exchanges, and other circumstances.”
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THE LEGAL ENVIRONMENT DIMENSION
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 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.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Overtime pay
Over 90 percent of Saldona’s time was spent on sales. As an outside salesperson, Saldona is exempt
from the overtime rules established by the Fair Labor Standards Act. Even under the rules as revised in
2004, Saldona would not qualify for overtime pay.
2A. Medical leave
The Family and Medical Leave Act (FMLA) applied to Saldona’s employer, Aimer Winery, because Aimer
had over fifty employees. Under the FMLA, Saldona would have been entitled to up to twelve weeks of
unpaid medical leave to care for his injured wife..
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE AT
THE END OF THE CHAPTER
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ANSWERS TO QUESTIONS AND CASE PROBLEMS
AT THE END OF THE CHAPTER
34-1A. Unfair labor practices
(Chapter 34—Pages 675–677)
34-2A. QUESTION WITH SAMPLE ANSWER: Wrongful discharge
The Occupational Health and Safety Act (OSHA) requires employers to provide safe working conditions
34-3A. Family and Medical Leave Act
(Chapter 34—Page 664)
To be protected under the Family and Medical Leave Act (FMLA), an employee must inform the
employer of the reason for the leave, which Willis clearly did not do. Although she had called in sick for
34-4A. Unemployment insurance
(Chapter 34—Pages 668–669)
A state intermediate appellate court reversed the DES’s decision (which had been affirmed by the
Missouri Labor and Industrial Relations Commission) and remanded the case. The court noted the state
agencies’ findings that “Kelly, a former employer of Claimant, offered Claimant work as a chemist to
begin [in] March . . . . [B]ecause Claimant had previously worked for Kelly as a chemist, the offered
work was suitable,” but “Claimant did not accept the offered work because it was temporary and
therefore, she failed without good cause to accept suitable work offered by a former employer.” The
34-5A. CASE PROBLEM WITH SAMPLE ANSWER: Immigration
Conviction affirmed. The evidence was sufficient to support the convictions for hiring and harboring
illegal aliens. Given the way the restaurant was run and the differential treatment of employees, it was
34-6A. Immigration work status
(Chapter 34—Pages 673–674)
34-7A. Vesting
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(Chapter 34—Page 668)
The most plausible conclusion is that the benefits offered to a worker who retires at a particular date are
the “same” as those in place for active workers on that date. Thus, applied to the facts in this case,
retiree medical benefits vested on actual retirement, not eligibility, and the workers who retired after
the previous agreement expired were entitled to the benefits that existed when they did retire. Of
34-8A. Unfair labor practices
(Chapter 34—Page 674)
Before invoking a union-security clause against an employee, the union’s obligation, under the NLRA, to
deal fairly with employees requires it to (1) provide the employee with actual notice of the precise
amount due, including the months for which dues are owed; (2) explain how it computed the amount
due; (3) give the employee a reasonable deadline for payment; and, (4) explain to the employee that
failure to pay will result in discharge. Substantial evidence supported the NLRB’s decision that the
34-9A. A QUESTION OF ETHICS: Workers’ compensation law
(a) In reviewing the dispute that originated with Tull’s claim, the court discussed a different
case, in which it was held that a dispute between insurers over their respective liability in a workers’
compensation case should not be part of the injured employee’s proceeding, but should be litigated in a
separate action between the insurers. “These are adversities which a claimant should not be forced to
undergo. While we recognize the right of insurance carriers to be protected in their legal rights and to
engage in litigation when disputes over their respective liabilities arise between them, yet their quarrels
should not be resolved at the expense of an injured workman.”
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In this case, the board faced “precisely the circumstances that led to [this] rule . . . : the mere
tail of insurance coverage disputes wagging the dog of the rights of an injured worker.” The board
stated, “No one disputed [Tull’s] need for treatment or the causal connection between her symptoms
and her work activities. Rather, it was merely a fight as between two companies that had contractual
obligations to insure Atchison for workers compensation claims and their desire to avoid that liability,
effectively delaying treatment with the obvious goal of depositing the liability on the subsequent car-
rier’s doorstep. . . . The obvious motivation for the carriers’ positions was the fact that every
November, coverage would change. And at that point, claimant-and hopefully her claim-would become
another carrier’s problem.”
The court cited other cases in which a “claimant’s last injurious exposure to repetitive or
cumulative trauma is when he or she leaves work. But when the claimant does not leave work or leaves
work for a reason other than the injury, then the last injurious exposure is when the claimant’s
restrictions are implemented and/or the job changes or job accommodations are made by the employer
to prevent further injury.” Here, Tull “suffered a series of injuries to her upper extremities each time she
returned to the same job (with Atchison) she had performed before her various treatments and
surgeries. Because claimant continued to aggravate her condition after each surgery, the last day
worked rule is applicable.”
The court added that “Tull’s employment tasks [for] Berger were less demanding and less
stressful; thus, her last day of work for Atchison was indeed the last day the claimant performed the
[injurious] work tasks.”
Atchison and its last insurer appealed this holding to a Kansas state court. The appellants argued
that the board should have determined the individual liability of each of the insurers. The court affirmed
the determination of the board. The court recognized that “joint and several liability may create some
initial inequities and require separate litigation between carriers that may not be the most efficient.”
The court reasoned, however, that disputes among insurers with respect to their liability “must not be
allowed to vex the speedy and efficient mechanism for the treatment and payment of the claims of
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injured workers provided by our Workers Compensation Act. Perhaps the prospect of joint and several
liability may serve as an incentive to multiple carriers to resolve coverage disputes in a manner that will
not delay treatment of an injured worker or otherwise impede the paramount objective of the [state]
Workers Compensation Act.”
type of advertising that Laura asked Ray to produce, and if Ray could prove that he was fired for
not producing the ad, he could claim that he was wrongfully discharged in violation of public
policy. Ray would have to prove that a clear public policy existed against this type of misleading
advertising, which may be difficult if the ad was not illegal but only slightly misleading (as are
refusal to produce this ad as a factor in his termination. This would be difficult in Ray’s case
ANSWER TO VIDEO QUESTION NO. 34–10
Employment at Will
(a) In the video, Laura asserts that she can fire Ray “For any reason. For no reason.” Is
this true? Explain your answer. Under the employment-at-will doctrine, either party may
terminate an employment contract at any time and for any reason, unless a contract specifies
otherwise or the termination would violate a federal or state statute, such as a statute
prohibiting employment discrimination. The employment-at-will doctrine still applies to the
majority of workers in the United States. Therefore, Laura is right. Generally, as a private em–
ployer, she can fire Ray for no reason and for (almost) any reason so long as her action does not
violate a federal or state statute.
(b) What exceptions to the employment–at-will doctrine are discussed in the chapter?
Does Ray’s situation fit into any of these exceptions? Three main exceptions to the employment-
at-will doctrine are discussed in the chapter. Courts sometimes make exceptions based on
contract theory, such as when an employer’s manual, a personnel bulletin, or the employer
(verbally) states a policy that the employee will be fired only for good cause. Other exceptions
are based on tort theory, such as when the employer makes false promises to an employee who
relies on these promises to her or his detriment. Exceptions may also be based on public policy,
such as when the employer fires a worker for reasons that violate a fundamental public policy of
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because obviously an advertising firm is justified in considering what type of ads an employee
will produce in its decision as to whether to hire or fire a particular employee.
(c) Would Ray be protected from wrongful discharge under whistleblowing statutes?
Why or why not? Whistleblowing statutes are typically aimed at protecting whistleblowers from
employer retaliation. A whistleblower is an employee who tells a government official, upper-
management authority, or the press that her or his employer is engaging in some unsafe or illegal
activity. That is not the situation in the video. Ray has not “blown the whistle” on Laura’s ad–
vertising firm by telling anyone else about the advertisements that he considers to be false and
misleading. Therefore, most states’ whistleblowing statutes would not apply.
(d) Assume that you are the employer in this scenario. What arguments can you make
that Ray should not be able to sue for wrongful discharge in this situation? An employer faced
with this situation can argue that the employee was terminated because he refused to do what
he was hired to do—produce advertisements. There was no discrimination or retaliation
industry, and employers should have the right to make the strategic decisions controlling the ads
they produce.