Some Unique Aspects of Employment and Labor

Law

Learning Objectives

• Debunk some mythology• Be able to spot issues• Avoid traps for the unwary

Fact or Fiction?

Right to Work

Right to Work• Section 14b of Taft Hartley and ARS 23-1301

–Union security clauses illegal in Arizona• E-Verify “right to work”

–Eligibility to work in US + identity• Covenants not to compete

–Can be enforceable if geographically and temporally reasonable

Employment at Will

• Codified in Arizona at ARS 23-1501 as the Arizona Employment ProtectionAct (AEPA)

• Employer can terminate employment for good reason or no reason but not a bad reason

• Employee can terminate employment for any reason

Fact or Fiction?

Independent Contractor

Independent Contractor or Employee?

• All taxing agencies presume worker = employee• Right to control test

– Restatement of Contracts and IRS– Control of work methods used; not just outcome

• Economic realities test– LAWA and Minimum Wage laws– Is worker in business?

• Hybrid – ARS 23-902D• Totality of the Circumstances

Fact or Fiction?

Mandatory Mealor Lunch Breaks

Meal and Work Breaks

• No Arizona law requires breaks• Work breaks paid if less than 20 minutes under

federal law• Meal breaks paid if less than 30 minutes under

federal law– To prove true break, employee must clock in and out– To be unpaid, worker must be relieved of duties

• New nursing mother break under FLSA

Fact or Fiction?

Employers CanProhibit TalkingAbout Wages

Protected Concerted Activities

• Section 7 of National Labor Relations Act• Protected activities – discussing wages, hours

and working conditions• Concerted activities – done by more than one

employee or on behalf of more than one employee

• Unfair labor practice to prohibit discussion of wages by employees

Fact or Fiction?

You Cannot Be Fired if You AreSick or Hurt At

Work

Termination of Injured/Ill Employees

• No AZ law requiring job protection for injured workers– BUT wrongful termination if discharged for filing or

pursuing worker comp claim• Does federal FMLA apply?• Does employee have paid time off?• Does employer have other job-protected leave

policy?• Does Americans with Disabilities Act apply?

Preemption and Exclusive Remedies

National Labor Relations Act

•Section 301 (29 USC 185)–Union Duty of Fair Representation–Arbitration sole remedy for unit employee

•Exceptions •US Sup Ct 2009 14 Penn Plaza case

•What about non-union mandatory arbitration?–US Sup Ct 2001 Circuit City v. Adams case–Can attack agreement as unconscionable?

Employee Retirement Income Security Act (ERISA)

• Employer-provided –Group insurance plans–Pension plans–Severance plans

• No state bad faith actions against insurers• No punitive damages• Anti-retaliation statute

Traps for UnwaryNot all employees covered by

mainstream laws

Pilots and Flight AttendantsCovered by Railway Labor Act

Farm workersmay not be covered by NLRA or FLSA

Indian Countryemployers exemptBUT subject to tribal law

AZ Worker CompensationExclusive Remedy ARS 23-1022

• Constitutional right to reject (except public employees)

• Exceptions–No insurance ARS 23-907 and parade of horrors–No poster seen so no knowledge of right to reject–Intentional injury with direct object of causing injury –Allen v. Southwest Salt and Ford v. Revlon

• Waiver and ARS 23-1024

Traps for UnwaryShort Statutes of Limitations

Collective Bargaining AgreementsGovernmental rules and policiesGrievancesAppealsWhistleblowers

Discrimination ChargesOSHA: 30 daysEEO: 180/300 daysNLRA: 6 months

OSHA DiscriminationARS 23-425

• Federal OSHA Section 11c• No private right of action – must be prosecuted by ADOSH or federal OSHA• Discrimination and retaliation prohibited for

protected activities• Broad statutory remedies

Traps for Unwary

Exhaustion ofAdministrativeRemedies

Public Employees:11th Amendment Notice of Claim: 180 daysStatute of Limitations: 1 yearNo punitive damages