Labor & Employment

Labor law principles under the National Labor Relations Act (NLRA) apply to all American businesses, including aviation and aerospace businesses

EXCEPT for railroads and air carriers (including charter and emergency medical air service operators), which are governed by the Railway Labor Act of 1926 (RLA)

Employment law: law applicable to all employment situations regardless of whether the employees are represented by a union

Labor law: the organization, election, representation, and collective bargaining of labor unions

Employment-at-will: unless a collective bargaining agreement (contract) between the employer and employees’ union is in force, employers have the right to terminate (fire) employees for any reason (or for no apparent reason) and employees have the right to quit their jobs for any reason (or for no apparent reason)

Exceptions: employers have been found liable in civil suits for wrongful discharge where:

the action is in violation of a law prohibiting discrimination or
the action is contrary to public policy e.g. employee has been discharged for
1. missing work because summoned to serve on a jury or
2. in retaliation for refusing to give false testimony to a court or administrative agency or
3. in retaliation for reporting illegal conduct of an employer to law enforcement or administrative agencies (whistleblower protection) or
4. in retaliation for engaging in union activity protected by law or
the employment is deemed not really at will because the company’s personnel policy or oral or written statements promising job tenure, relied upon by the employee in good faith, are found by the court to have created an implied contract of long-term employment

Hiring: employer must comply with federal anti-discrimination laws

Immigration Reform and Control Act (IRCA) – makes it illegal for an employer to hire, recruit, refer for a fee, or continue to employ an alien who the employer knows is not eligible to work in the US – requires employers to verify and maintain records of each new employee’s identity and work eligibility – records kept for 3 years after employment or 1 year after termination (whichever is longer)

Government contracts – Executive Order 11246 – requires contractors to develop affirmative action programs – order administered by Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP)

Vocational Rehabilitation Act of 1973 and Disabilities Act of 1990 – require holders of federal government contracts in excess of $2,500 to develop affirmative action programs to employ and advance individuals with disabilities

The Vietnam Era Veteran Readjustment Assistance Act – requires employers with government contracts of $10,000 or more to take affirmative action to employ and promote qualified and disabled veterans who served during that era

Military Selection Act – mandates that employers reemploy veterans to the position they held before entering the armed forces at the same seniority status and pay

Wages – Hours – Benefits – Working conditions

Occupational Safety and Health Act (OSHA) – requires all employers to provide a safe and healthy workplace – regulations impose stiff fines on employers for violations – employee may refuse to work if a reasonable person would conclude he faced an immediate risk of death or serious injury

Fair Labor Standards Act (FLSA) – outlaws employment of children under age 16 – provides a federal minimum wage (Congress periodically increases) – stipulates certain non-exempt employees must receive overtime pay of 1½ times normal pay rate when they work over 40 hours/week

Time off – compensatory or comp time – cannot be used as a substitute for overtime pay

Exempt employees:

-executive (employee's primary duties must include managing the enterprise or a department or subdivision of the enterprise; regularly directing the work of at least 2 other full-time employees; and having the authority to hire and fire other employees, or the employee's recommendations as to the hiring, firing, advancement, promotion or other change of status of other employees must carry weight)

-administrative (employee's primary duties must include performance of office or non-manual work directly related to the management of general business operations of the employer or the employer's customers; and must include the exercise of discretion and independent judgment with respect to matters of significance)

-professional (learned, employee's primary duty must be the performance of work requiring advanced knowledge in a field of science or learning, knowledge that is customarily acquired by a prolonged course of specialized intellectual instruction; and creative, employee's primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor)

-computer (with an hourly fee of at least $27.63, employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field, employee's primary duty must of the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or functional specifications)

-outside salespeople (employee's primary duty must be making sales, or obtaining orders or contracts for services or for the use of facilities, the employee must be customarily and regularly engaged away from the employer's place of business)

For overtime: workweek is 168 consecutive hours or 7 consecutive days – not calendar week

Compliance with FLSA overtime is complex – employers in restaurant, agricultural, tourist, and medical industries are exempt from FLSA overtime

Department of Labor – good source of FLSA law

Walsh-Healey Act – requires employers with federal contracts over $10,000 to pay overtime anytime an employee works more than 8 hours a day

Davis-Bacon Act – requires employers holding federal construction projects of $2,000 or more to pay the prevailing wage rate for that particular geographic area

Sexual harassment – EEOC declared it a form of sex discrimination by Civil Rights Act – 2 categories – both prohibited if they are unwelcome AND of a sexual nature

1.quid pro quo – “this for that” – involves demands or suggestions of sexual favors in exchange for such benefits as a job or promotion or to avoid adverse actions e.g. firing or laying off

2.hostile work environment – may be created by verbal abuse, sexist remarks, touching, leering or ogling

Businesses are liable if sexual harassment done by co-workers, customers vendors and others – even if employer unaware

Discipline – Suspension – Termination

Employers should document every disciplinary action including counseling taken against an employee including reason for discipline in the worker’s personnel file

Insuring against wrongful discharge claims – employers are well advised to purchase employment practices liability insurance

Layoffs and reductions in force

Worker Adjustment and Retraining Notification Act (WARN) aka Plant Closing Act – 1989 – most private sector employers that employ 100 or more full-time employees are required to give employees at least 60 days advance notice of impending closing of a facility or layoff of 50 or more employees in one location

Non Air Carrier Labor Law

National Labor Relations Act (NLRA) aka Wagner Act

Applies to most private sector employers except railroads and air carriers

Gave employees the right to organize without interference by the employer and to bargain collectively through a union of their choice with the employer

Created the National Labor Relations Board (NLRB) to adopt and enforce regulations implementing the act

Taft-Hartley Amendments to NLRA enacted to correct an imbalance in labor’s favor added more provisions

Federal Government Employees

Executive Orders extended collective bargaining rights to most federal government employees

Replaced by Civil Service Reform Act – 1978 – affords federal government employees rights virtually identical to private sector employees covered by NLRA with 2 exceptions:

1. federal government employees do not have the right to strike and

2. all collective bargaining agreements with federal employees must contain a grievance procedure providing for final resolution by binding arbitration

Office of Personnel Management (OPM) – establishes rules regulating federal civilian employment procedures and practices

Federal Labor Relations Authority (FLRA) – oversees unionization and collective bargaining of federal employees

Merit System Protection Board (MSPB) – hears appeals of federal employee grievances e.g. those filed by terminated air traffic controllers

29 CFR PART 1614 - FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

EEOC Management Directive 110

Professional Air Traffic Controllers’ (PATCO) – 1981 – decertified - dissolved

National Air Traffic Controllers Association (NATCA) – affiliate of powerful AFL-CIO

Employment Law Handbook - Arizona

Industrial Commission of Arizona

US Department of Labor - Wage and Hour Division - FLSA

Bureau of Labor Statistics - Aircraft Mechanics

LABOR EMPLOYMENT LAWS.pdf
Adobe Acrobat document [47.6 KB]

Arizona Magazine - January 2022

Equal Employment Opportunity Commission

Federal Equal Employment Opportunity Law - Recent Developments

azattorneymag202201-dl.pdf
Adobe Acrobat document [15.5 MB]

Unlawful workplace harassment: type of discrimination that demeans or threatens one or more employees on the basis of certain characteristics that are protected by law or by your institution's internal policy.

People who are not employees - volunteers, interns, contractors, visitors - can also be victums of harassment.

Your institution has a duty to protect its employees - each of us plays an important role in making sure harassment does not occur and is not tolerated.

Discrimination: happens when someone is treated differently because they are part of a protected group or class.

Someone can be harassed for more than one reason.

Federal law protects members of certain groups.

AGE: Age-based discrimination involves treating someone less favorably because of their age.

The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older, but does not protect younger workers.

Also prohibits employers from imposing a mandatory retirement age.

New York State additionally protects workers 18 years and older from age discrimination.

GENETIC INFORMATION: The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discriminaiton on the basis of genetic information.

This includes information about genetic tests or the manifestation of a disease or disorder in an individual or their family members.

GINA protects individuals against discrimination based on their genetic information in health coverage and in employment. GINA is divided into two sections, or Titles. Title I of GINA prohibits discrimination based on genetic information in health coverage. Title II of GINA prohibits discrimination based on genetic information in employment.

NATIONAL ORIGIN: This includes treating someone unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

This protection also applies to citizenship and immigration status, as well as affiliation with a Native American tribe.

This form of discrimination can also involve treating someone differently because they are married to or associated with an individual of a certain national or ethnic background.

PREGNANCY: Treating a woman unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth is discrimination and is prohibited under the Pregnancy Discrimination Act.

RACE/COLOR: Discrimination occurs when someone is treated unfavorably because of race, characteristics associated with race (such as hair texture or facial features) or skin color/complexion.

This can also involve treating someone differently because that person is married to or associated with an individual of a certain race or color.

RELIGION: Discrimination happens when someone is treated unfavorably because of their religious beliefs.

The law protects members of traditional, organized religions as well as those who have sincerely held religious, ethical, or moral beliefs.

This can also involve treating someone differently because that person is married to or associated with an individual who is a member of a particular religion.

SEX/GENDER: Treating someone unfavorably becasue of that person's sex is discrimination.

Federal protection extends to transgender individuals, gender identity, and gender expression.

Gender identity is an individual's internal sense of gender.

Gender expression is the way an individual expresses themself through behavior or dress.

An individual's gender expression may align with or contradict commonly-accepted gender roles.

Some states may also protect marital status.

VETERANS: Treating someone unfavorably because of their status as a military veteran is discrimination.

SEXUAL ORIENTATION: The Supreme Court has ruled that sexual orientation is covered under federal sex discrimination law.

DISABILITY: A physical or mental disability is a protected characteristic.

Discrimination occurs when a qualified individual with a disability is treated unfavorably because of that disability.

This also covers those with a history of a disability (such as a disease that is controlled or in remission) and m,ay include short-term physical or mental impairment.

Some states may protect current medical conditions.

The law requires the employer to provide reasonable accomodations to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense.

Many states and localities go beyond federal law and safeguard additional groups.

Common state protections include:

- marital status

- political views

Employers may also protect additional groups under its policy.

Here in Arizona, the following cities offer LGBTQ+ protection:

Avondale

Chandler

Flagstaff

Gilbert

Glendale

Mesa

Peoria

Phoenix

Scottsdale

Tempe

Tucson

The actual codes are in the slide shows below, starting with the State laws or ARS:

Civil Rights Act of 1964: amended by Equal Employment Opportunities Act of 1972

Prohibits employers from discriminating in employment and compensation against any individual because of the person’s race, color, religion, sex, or national origin (protected classes)

On June 15, 2020, the Supreme Court of the United States issued its landmark decision in the case Bostock v. Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against an individual on the basis of sexual orientation or transgender status.

In Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex. The Court reached its holding by focusing on the plain text of Title VII. As the Court explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” For example, if an employer fires an employee because she is a woman who is married to a woman, but would not do the same to a man married to a woman, the employer is taking an action because of the employee’s sex because the action would not have taken place but for the employee being a woman. Similarly, if an employer fires an employee because that person was identified as male at birth but uses feminine pronouns and identifies as a female, the employer is taking action against the individual because of sex since the action would not have been taken but for the fact the employee was originally identified as male.

The Court also noted that its decision did not address various religious liberty issues, such as the First Amendment, Religious Freedom Restoration Act, and exemptions Title VII provides for religious employers.

In July 2022, a federal district court preliminarily enjoined the EEOC from implementing this document as to plaintiffs in Tennessee. et al. v. U.S. Dep’t of Educ. et al., Case No. 3:21-cv-308 (E.D. Tenn.).

In October 2022, a federal district court vacated this document in Texas v. EEOC et al., 2:21-CV-194-Z (N.D. Tex.).

Title VII: requires both the company and the union to assure that any collective bargaining agreement provides for fair representation and equal opportunity for employees regardless of race, color, religion, sex or national origin

Equal Employment Opportunity Commission (EEOC)

Federal administrative agency primarily responsible for enforcing compliance with these laws

1991 – Civil Rights Act amended to allow victims of unlawful discrimination to recover compensatory and punitive damages up to $300,000 each in addition to job reinstatement and back pay

Equal Pay Act: administered by EEOC – prohibits employers from paying different rates of pay for the same job based on gender or race

Americans with Disabilities Act (ADA) – applies to public and private employers having more than 15 employees – prohibits employment discrimination against qualified individuals with disabilities

Disability: if he or she has a physical or mental impairment that substantially limits one or more major life activities – e.g. caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working

Disabled person is protected by ADA only if otherwise qualified for the job

Qualified individual: one who can accomplish the essential functions of the job with or without reasonable accommodation

Essential functions: generally those included in a written job description

ADA requires employer to provide accommodations within reason – at least a good faith best effort – does not require the employer to do the impossible or suffer an undue hardship

Factors to determine whether proposed accommodations would impose undue hardship on employer:

- nature and cost of accommodation

- size and resources of the facility affected

- size and financial resources of employer overall

- type of operation, composition, and structure of work force (non-financial)

- impact of accommodation on operation

If employee’s disability is obvious, the employer has an affirmative duty to provide reasonable accommodations even if employee has not requested it

If employer believes individual with disability cannot perform the job without creating a direct threat to his own safety or the safety of others the employer is not required to hire the person

Wrongful acts: For discrimination to occur, there must generally be some type of wrongful act based on a protected category.

Common situations include:

- firing or demotion

- denying a raise, promotion, or benefits

- unequal pay

- denying leadership opportunities

- denying access to training, educational programs, or professional development

- preventing someone from using institution facilities or services

- failure to hirea job applicant

- failure to make reasonable accomodations

- different treatment based on pregnancy

- policies or practices with disparate impact (such as requiring female facilities employees to pass a physical agility test)

If someone is discriminated against, they may be entitled to legal remedies including:

- reinstatement

- front pay, back pay, or other expenses

- emotional and punitive damages

- legal fees

Harassment: As a group, non-employees are also protected.

This could include contractors, parents, students, volunteers, and even visitors; basically anyone who is not empployed by your institution.

Anyone can be a harasser: supervisors, co-workers, other employees, or a non-employee who has a business relationship with the institution.

Sexual harassment: a form of gender discrimination and typically includes unwelcome advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

While frequently directed at women by men, sexual harassment can include women harassing men, men harassing other men, or women harassing other women.

Hostile environment: The most common type of harassment is a hostile environment.

There are 4 requirements for a hostile environment to exist.

The conduct must:

1. Be based on a protected category

A category protected by federal, state, or local law, or your institution's harassment policy.

2. Be unwelcome

If someone gives clues that comments or behaviors are unwelcome, then people should be sensitive to them

3. Be severe or pervasive

One or two minor incidents generally do not create a hostile environment.

But a continuing pattern of comments or emails that indicate bias and insensitivity could.

Some actions are so severe, they would immediately create a hostile environment.

4. Create a hostile environent, according to a reasonable person in the same position

In deciding whether conduct is offensive, we look not at what the complainant believes but rather what a reasonable person in the position of the complainant would believe, considering al the circumstances.

QUID PRO QUO: Exclusive to sexual harassment.

It's a latin term that means "this for that"

Commonly used when a person has to provide something to receive something from someone else.

Although now seen infrequently, quid pro quo sexual harassment occurs when an employee must provide sexual favors to receive a job benefit or to avoid some type of punishment.

Harassment can happen anywhere - does not need to take place in the actual workplace or even during work hours to exist - can occur away from the office, whether at off-site events, business trips, or retreats.

ELECTRONIC HARASSMENT: From email and social media to memes and even emojis, each year seemingly brings new ways for people to behave badly!

As continuing advances in technology and the COVID-19 pandemic have made clear, we spend a lot more time online than we once did.

Though just like there are rules governing behavior in the office, there are also rules about what's acceptable online.

Many people believe they have total privacy, but the reality is that anything posted or sent electronically can create a permanent record that can never truly be deleted.

Forwarding off-color jokes or showing racially or sexually offensive images are a sure way to create a hostile work environment.

It is also important to consider your tone in any online communications.

Others can sometimes take something you write or post the wrong way.

It's easy to be too casual, sending jokes or memes that some might find offensive.

It's important to remain as professional as you would in an in-person situation.

It's simple, never send anything that you would be embarassed t osee on the news or on your social media account.

WORKPLACE BULLYING: Bad or abusive behavior directed toward a co-worker regardless of whether they are a member of a protected group.

While generally not illegal, bullying has a negative effect on victims, co-workers, and your institution as a whole.

It can stress victims and impact their health.

Repercussions for your institution can include employee turnover and low morale.

RETALIATION: Any action that could deter a reasonable person from making a harassment complaint - or from supporting a co-worker who made a complaint. Employees who bring harassment complaints or act in support of others, such as being a witness, are protected from retaliation.

Some examples of unlawful retaliation that can occur when an employee files a harassment complaint:

- Demotion

- Limiting opportunity for promotion

- Limiting access to training

- Less favorable work assignments

- Cuts in pay

- Limiting future salary increases

If you think you are being retaliated against, immediately report it to the person designated by your institution to receive harassment complaints.

If you're not able to find a contact person, report the situation to human resources, or a senior administrator.

If you're not sure if an action is retaliation, go ahead and report it anyway.

The only way you can get in trouble is if you make up accusations of retaliation that you know are untrue.

One way to confront harassment is to go straight to the source.

Calmly tell that person their actions are not acceptable.

This approach often works.

Many times, the harasser does not realize their conduct is offensive.

Although it's ideal to begin by telling the offending person to stop, it is not a requirement.

Sometimes, a situation needs to be handled at a higher level.

When a co-worker tells you some type of behavior is inappropriate, that's a clear message to stop.

Continuing will put you at risk of serious discipline.

You should also avoid taking any kind of action that could be considered retaliation.

If you think the other person is being unreasonable, discuss the situation with human resources or your supervisor.

As a responsible member of your campus community, you should report any cases where you experience harassment, or witness or learn of someone else being harassed.

Each institution has designated people that handle harassment complaints.

If you're not sure who to contact, consult your employee handbook or policy or check with HR or a senior administrator.

You can also contact the Equal Employment Opportunity Commission or the appropriate agency in your state.

Bringing a complaint internally allows the institution to investigate the issue and resoplve the problem.

Once you've reported an incident of harassment, the institution cannot keep your complaint confidential and is legally obligated to investigate.

However, the institution can be discreet and ensure that information about the issue is shared only on a need-to-know basis.

Your institution will conduct an investigation according to its policy, and may take remedial measures against the harasser.

You should be prepared to cooperate with this investigation.

For anyone on the receiving end, harassment is an unpleasant and often bewildering situation.

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