Employee Survival Guide - Part 5

Employee Survival Guide – Part 5

The Law

There are many Federal laws that protect employees, with or without a union contract. They are NOT all listed here. Remember, it is your elected representatives who pass or fail to pass these laws. They have a profound effect on you every time you put on your work clothes.

There are attorneys and consultants who specialize in helping employers legally avoid violating these laws, especially when hiring, disciplining or terminating employees. They are paid ten, twenty even fifty times what you make an hour. At the same time you are being told that they can’t give you a raise. You probably do not have an attorney on retainer to protect your rights.

This guide cannot cover the many possible situations that may violate your rights, but your awareness of the law will help you protect your rights.

You can call or go online to the agency listed on the “Administered By” line and request a brochure explaining the law in more detail. Learning what your rights are is the first step.

Railway Labor Act of 1926 (RLA)

Administered by: National Mediation Board

The RLA gave railway workers the right to join trade unions. It was the first federal law giving workers the right to organized unions. The RLA created the National Mediation Board to reduce labor disputes in the industry. It also required that agreements between unions and employers be in writing.

The RLA was extended in 1936 to include the airline industry.

National Labor Relations Act of 1935 (NLRA)

Administered by: The National Labor Relations Board (NLRB)

The NLRA passed congress on July 5, 1938. The NLRA defines and protects the rights of employees and employers. It created the National Labor Relations Board (NLRB) which administers and enforces the NLRA. The act reasserted the right of employees to collective bargaining, which had previously been struck down by the Supreme Court decision in May of 1935. Employees also gained the right to organize a union with this act.

The NLRB determines proper bargaining units, prevents and remedies unfair labor practices and conducts elections for union representation by secret ballot.

Section 7 of the NLRA gives employees the following rights:

*To form or attempt to form a union

*To join a union whether or not the employer recognizes the union

*To assist a union to organize the fellow employees

*To strike for better working conditions

*To refrain from activity on behalf of a union

The Act prohibits employers from discharging an employee for participating in these activities.

The NLRA also defines unfair labor practices of labor organizations and employers, legal concerted activities of employees and imposes a duty to bargain in good faith on both the union and employer.

Additional information from the U.S. Government Printing Office: A Guide to Basic Law and Procedures under the National Labor Relations Act.

Fair Labor Standards Act of 1938 (FLSA)

Administered by: U.S. Department of Labor, Wage and Hour Division

Passed in 1938 as part of Franklin Delano Roosevelt’s New Deal Legislation, the Fair Labor Standards Act (FLSA) set a minimum wage of 25 cents an hour for workers engaged in interstate commerce. It also included a prohibition on child labor in interstate commerce. This is the also law that requires an employer to pay you time and a half after forty hours of work in a workweek. The Act prohibits discharge of employees who exercise their rights under the Act’s overtime and minimum wage provisions.

Today it covers more than 73 million full-time and part-time workers in the private sector and in Federal, State, and local governments. It is administered and enforced by the Wage and Hour Division of the Department of Labor for private sector employees, and Federal employees of the Library of Congress, U.S. Postal service, and Postal Rate Commission, and the Tennessee Valley Authority. For all other Federal employees, the Office of Personnel Management is responsible.

Some states have laws that set a higher minimum wage than the FLSA.

The FLSA does require (for covered employees):

*A minimum wage of $7.25 an hour as of 2011.

*Overtime pay of not less than 1 ½ times the regular rate of pay after forty hours of work in a workweek.

*Restricted hours for 14 and 15 year olds doing non-farm work

When school is not in session:

Up to 8 hours a day

Up to 40 hours a week

When school is in session:

Up to 3 hours a day

Up to 18 hours a week

No working before 7AM or after 7PM

Evening hours can go to 9PM from Jun 1 through Labor Day

*Fourteen is the minimum age for most non-farm work except that at any age youths may:

*Deliver newspapers

*Perform on radio, television, movie, or theatrical productions

*Work for parents in their solely-owned non-farm business

*Gather evergreens or make evergreen wreaths

*Youths 16 years and older may perform any farm job, whether hazardous or not, for unlimited hours

*Youths 14 or 15 years old may perform nonhazardous farm jobs outside of school hours

*Youths 12 or 13 years old may perform nonhazardous farm jobs outside of school hours with written parental consent

*Minors of any age may be employed by their parents at any time in any occupation on a farm owned or operated by their parents.

*A written statement of what deductions are taken out or your paycheck

*Tipped employees may have tips included as part of wages, up to 40 percent of the minimum wage

*Employers must keep records on wages, hours and other items as specified in Department of Labor record keeping regulations

The FLSA does not require:

*Vacation pay

*Sick pay

*Severance pay

*Holiday pay

*Premium pay for work on holidays or on weekends

*Break periods

*Lunch breaks

*Pay raises

*Medical insurance

*A discharge notice

*Immediate payment of final wages to discharged employees

*Any limit on the number of hours or work in any nonhazardous job for employees 16 or 17 years old

Enforcement provisions:

*Violation of child labor provisions are subject to a civil penalty of up to $1,000 for each violation

*Willful violations may be prosecuted criminally and the violator fined up to #10,000. A second conviction may result in imprisonment.

*It is a violation of the FLSA to fire or in any other manner discriminate against an employee for filing a complaint or for participation in a legal proceeding under the FLSA.

Labor-Management Relations Act of 1947 (LMRA)

Administered by: National Labor Relations Board

The Labor-Management Relations Act is better known as the Taft-Hartley Act. This act limited certain union activities. After the NLRA was passed in 1935, workers prospered by successfully organizing unions. The percent of organized workers rose from 13.2% in 1935 to over 35% in 1945. The American middle class was established. Working people were getting their share of the corporate profits that their labor created.

The LMRA was vetoed by democratic president, Harry S. Truman. The republican congress overrode his veto, a huge loss from which working people have yet to recover. In 1992 unions represented only 15.8% of the American labor force, down from 34.*% in 1945. In 2011 Unions represented less than 12% of the working Americans. Union employees still earn more than the unrepresented majority of employees. They also enjoy working conditions far better than average. Many employees work for near minimum wage in part-time jobs with poor benefits. Without the benefit of union representation there is little hope for change.

The LMRA weakened workers rights by:

*Allowing employers to replace striking workers (Remember President Reagan replacing the air traffic controllers in ).

*Banning closed shops and secondary boycotts

* Limiting a union’s abilities to strike

* Exempting certain employees from joining a union

* It also had a provision prohibiting union contributions to political campaigns, which was later overturned in court because it infringed on worker’s constitutional right to free expression.

*Right to work

Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)

Administered by: National Labor Relations Board

The LMRDA amends the Labor-Management Relations Act of 1947. Its purpose is to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants and their officers or representatives. It has five sections.

Title I is a “bill of rights” for union members

Title II requires disclosure of information

Title III protects trusteeships from abuse

Title IV establishes standards for democratic union elections

Title V protects union finances from mishandling

Equal Pay Act of 1963

Administered by: Equal Employment Opportunity Commission (EEOC)

An amendment of the FLSA of 1938 which prohibits discrimination based on sex those results in unequal pay for equal work.

Title VII of the Civil Rights Act of 1964

Administered by: Equal Employment Opportunity Commission (EEOC)

Title VII prohibits job discrimination based on race, color, religion, sex, or national origin. The act prohibits discharge of employees who exercise their rights under Title VII.

Age Discrimination in Employment Act of 1967 (ADEA)

Administered by: EEOC

Protects individuals over 40 from age based discipline or discharge.

Occupational Safety and Health Act of 1970 (OSHA)

Administered by: The Occupational Safety and Health Administration

Working Safe Is Not a Gift, It Is Your Right

In 1970 congress passed the Occupational Safety and Health Act of 1970 (OSHA) which protects working people from unsafe working conditions. The law was long overdue and is one of the most significant laws because it protects workers from unsafe and unhealthy working conditions.

In 1970, 14,000 workers died on the job, two and a half million workers were disabled and occupational diseases increased by 300,000. Since the passage of OSHA, there has been improvement, but many employees are still unaware of their rights and consequently work under conditions that they could possibly improve with a phone call to OSHA.

Working safe is the responsibility of both the employer and employees. However, because of OSHA, management has a legal obligation to provide a workplace free from recognized hazards, even if no OSHA standard applies to the particular hazard.

Safety is an area where employees and management can agree to work as a team. This is an area where cooperation should benefit everyone. Management can cut costs by avoiding on the job illnesses and injuries. Employees can protect themselves by learning safe ways to do their jobs.

As an employee, you have the right under Section 11 (c) of the OSHA Act to seek a safe and healthy working environment without fear of punishment or discrimination. This blanket of legal protection includes:

*Complaining to an employer, union, OSHA or any government agency about on the job safety and health problems. (Your union representative may file a complaint on your behalf and keep your name out of it)

*Filing safety or health grievances

*Participating in OSHA inspections, conferences, hearings, or other OSHA related activities.

If you do complain, your employer is prohibited from:

*Firing you

*Demoting you

*Taking away your seniority or benefits

*Transferring you to an undesirable job or shift

*Threatening or harassing you if you complain about unsafe or unhealthy working conditions

However OSHA is not as effective as it could be.

OSHA’s purpose is to provide a safe and healthy work environment. Yet, in 23 years the law has not been significantly updated. OSHA reform legislation could provide for safety and health programs, joint management-employee health and safety committees, worker training, and strengthened enforcement not contained in the current law. This improvement would h3lp all working men and women. Yet when these changes were proposed in 1994, they failed to move through congress because the business community does not support it and working people are not effectively organized.

You deserve a better law. The current law allows for up to six months in jail for an employer in a work related death of an employee, if the employer is found to have willfully violated OSHA standards. The penalty for harassing burros on Federal land is one year in jail. Sound fair to you?

By the end of 1993, the savings and loan bailout had cost taxpayers $87 billion. Yet, in 1993, OSHA was funded at only $289 million. OSHA does not do routine inspections because of inadequate funding. If OSHA inspectors planned to inspect every work location covered by the law, it would take them over 80 years. Not a likely scenario.

The business community has actively opposed strengthening the OSHA act. They want to weaken it. If you want a safer work environment, write your senator and congressman and tell them that you are important too. Ask them to support working people and vote for legislation that makes your job safer.

What is your “Right to Know”?

Did you know that one in every four workers are exposed to known health hazards on the job or that up to 40% of cancer cases in the United States are caused by exposure to substances in the workplace?

Do you know if you are one of these workers? You should!

Under the OSHA act, you have the right to know.

The OSHA act requires your employer to keep you informed of hazards in your workplace. Written into Title 29 of the Code of Federal Regulations are standards that give you the right to know about certain safety and health conditions at your workplace.

To meet OSHA’s requirements an employer must establish a written hazard communications program. Among other things, the program must include employee training, a list of hazardous chemical in the workplace, information on each chemical on a material safety data sheet, container labeling, and identification of staff responsible for this ongoing program.

OSHA requires that employers display in a prominent place the official poster that describes rights and responsibilities under OSHA’s law.

Log 200-Record of Injuries and Illnesses

29 CFR 1904.2

Access to Exposure and Medical Records

29 CFR 1910.20

Hazard Communication

29 CFR 1910.1200

Material Safety Data Sheets

29 CFR 1910.1200(g)

Training

29 CFR 1910.1200(i)

The Rehabilitation Act of 1973 (REHAB ACT)

Administered by U.S. Department of Labor, Office of Federal Contract Compliance Programs

This act requires government contractors and subcontractors to take affirmative action to employ qualified handicapped individuals. The act prohibits discrimination against handicapped workers. (See The Americans with Disabilities Act of 1990).

Employee Retirement Income Security Act of 1974 (ERISA)

Administered by: U.S. Department of Labor, Pension and Welfare Benefits Administration

The Employee Retirement Income Security Act protects the interests of participants and beneficiaries in private pension and other benefit plans. This law requires disclosure and reporting of plan and financial information. It also establishes and enforces fiduciary standards for these plans.

The Federal Pension Benefit Guaranty Corporation insures the pension plans of participating companies.

Employee Polygraph Protection Act of 1988

Administered By: Department of Labor, Wage and Hour Division

This Act prohibits most private sector employers from using lie detectors for either pre-employment screening or on current employees. The Act prohibits an employer from discharging, disciplining, or discriminating against an employee or prospective employee who refuses to take a polygraph test or who exercises their rights under the Act.

The Act does allow polygraph tests to be used with jobs in security or jobs that include drug handling. They may also be used to investigate a theft or other suspected employee related crime that results in economic loss to the employer. An employee must be given at least a 48 hour written notice stating that they are a suspect prior to being required to take the polygraph test. The notice should include:

*How your job might be affected

*A copy of the test questions

*Explanation of your right to sue if the test is improperly given

*How the test information will be used

Federal, state and municipal employees are exempt from the Act.

Worker Adjustment and Retraining Notification Act of 1988 (WARN)

Administered By: United States District Courts

This Act requires employers with 100 or more full-time employees to provide a 60 day notice of plant closings and covered lay-offs.

Americans with Disabilities Act of 1990 (ADA)

Administered By: Equal Employment Opportunity Commission

The ADA bans discrimination against people with disabilities in employment, public accommodations, public and private transportation, public services and telecommunications. It applies to all employers with 15 or more employees as defined under Title VII of the Civil Rights Act of 1964.

This includes:

*Private employers

*Employment agencies

*State and local governments

*Labor organizations

*Joint labor-management committees

Not included:

*The United States government

*A corporation wholly owned by the U. S. government

*An Indian tribe

*A bona fide private membership club as described under section 501(c) of the internal revenue code. (Other than labor organizations)

Family Medical Leave Act of 1993 (FMLA)

Administrated By: Department of labor, Wage and Hour Division

The FMLA allows employees of companies with 50 or more employees within 75 miles to have up to 12 weeks unpaid leave in a 12 month period for:

*The birth, adoption or placement of a foster child

*The serious illness of a child, spouse or parent

*The serious illness of the employee

Employees in private and public sectors must have been employed for one year and worked at least 1,250 hours.

At the employer’s or employee’s option certain kinds of paid leave may be substituted for unpaid leave. An employee may be required to provide a 30 day advance notice when leave is “foreseeable”. An employer may require medical certification of a serious health condition.

The employer must maintain the employee’s health coverage under any group health plan. Upon return from the leave most employees must be returned to their original or equivalent position with equivalent pay and benefits. The employee will not pose any employment benefit that accrued prior to the start of the employee’s leave.

It is unlawful for the employer to interfere with or deny the exercise of any right provided by the FMLA. The employee may not be discharged or discriminated against for exercising rights under the FMLA.

Consumer Credit Protection Act

Administrated By: U. S. Department of Labor, Wage and Hour Division

This Act prohibits the discharge of an employee for wage garnishment, for indebtedness, in some circumstances.

This is not a complete list of the Laws that protect workers. It is a start. The next section of the Employee Survival Guide - Part 6 is about you and how you can take action to protect yourself and your co-workers.