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:

1. the action is in violation of a law prohibiting discrimination or
2. 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
3. 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

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)

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

The Age Discrimination in Employment Act (ADEA) – prohibits employment discrimination against individuals over age 40 – also prohibits employers from imposing a mandatory retirement age

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

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 facilitiies, 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

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

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

Employment Law Handbook - Arizona

Employee rights - AZ Gov

Industrial Commission of Arizona

US Department of Labor - Wage and Hour Division - FLSA - Jan 2009

Bureau of Labor Statistics - Aircraft Mechanics - 2016

Sarah Nilsson, J.D., Ph.D., MAS

602 561 8665

sarah@sarahnilsson.org

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Legal Disclaimer

The information on this website is for EDUCATIONAL purposes only and DOES NOT constitute legal advice. 

While the author of this website is an attorney, she is not YOUR attorney, nor are you her client, until you enter into a written agreement with Nilsson Law, PLLC to provide legal services.

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