Duty of Fair Representation

It is well-settled that unions owe a duty to represent all employees in their respective bargaining units. Although this duty is not explicitly created by the National Labor Relations Act (“NLRA”), it has been implied from Section 9(a) of the Act, which grants unions the exclusive power to represent employees in their units.

As such, under NLRA Section 301 a wrongfully terminated employee may file suit in federal district court against both his employer (alleging that its conduct violated the labor agreement) and his union (alleging breach of contract and the duty of fair representation). A union’s breach of the duty of fair representation also constitutes an unfair labor practice under Section 8(b) of the Labor-Management Reporting and Disclosure Act.

This chapter from Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides an overview of labor unions’ duty of fair representation. The discussion initially addresses historical development of the duty and pertinent U.S. Supreme Court decisions. Next, the chapter turns to subject matter jurisdiction; exhaustion of remedies; contractual grievance procedures; internal union procedures; and litigating fair representation claims through other claims, including Title VII actions. The discussion continues with coverage of issues of proof, investigating claims, and filing complaints. The chapter concludes with analysis of allegations of the complaint; discovery; pre-trial motions; right to a jury trial; and remedies.

Employee Rights Litigation: Pleading and Practice (Matthew Bender) provides complete coverage of the basic legal standards governing the statutory and common law claims that can be raised on behalf of employees for discriminatory treatment or wrongful discharge. It contains analysis of Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, Equal Pay Act, Rehabilitation Act, Americans with Disabilities Act, Family and Medical Leave Act, ERISA, Labor-Management Reporting and Disclosure Act, Fair Labor Standards Act, Worker Adjustment and Retraining Notification Act, and workers’ compensation laws. The publication also assists the practitioner with helpful checklists, practice pointers, cautions and warnings, citations to significant cases, and a statutory appendix.


Employment-At-Will Exceptions and jobless recovery

This paper studies the effects on jobless recovery of diminishing the power of an employer to fire an employee through Employment-At-Will Exceptions (EWEs). I use dynamic panel regressions with quarterly data ranging from 1976 to 2010 for the 50 states in the U.S. I test both changes in state unemployment rates and state-weighted GDP growth. I also resolve differences in the various sources documenting the three types of EWEs in different states and show two of the three contribute significantly to jobless recovery in the U.S. The results lend support to predictions of theory that increased firing costs decrease the rate of hiring during recoveries. Statistical tests show the adoption of both EWEs would slow decreases in the unemployment rate during recovery from recession by up to 0.352 percentage points annually.

Wellness Programs in the Workplace

This article is a legal and ethical examination of “wellness” policies in the American workplace. The authors will examine how employers are implementing policies that provide incentives to employees who lead a “healthy” lifestyle. The authors also address how these policies could adversely affect “non-healthy” employees. There are a wide variety of laws –federal and state –statutory and common law –that impact wellness policies and practices in the workplace. The authors review these laws in the context of wellness policies to ascertain when these policies could result in legal violations of employees’ rights. The authors, moreover, provide an ethical analysis of wellness policies, based on major ethical theories, to determine the morality of wellness policies in the workplace. Based on the aforementioned legal and ethical analysis, the authors make practical recommendations for employers and managers.

Sources: http://www.scienpress.com/Upload/IJOHPHN/Vol%201_1_3.pdf

The National Labor Relations Act

The National Labor Relations Act (NLRA) of 1935 has been widely portrayed as an anachronistic piece of legislation that needs to be reformed or abandoned. In the absence of reform, many US labor unions try to avoid the NLRA process altogether by organizing workers outside the confines of the law. But Somos un Pueblo Unido, or “Somos,” a worker center in New Mexico, has been using a novel interpretation of the NLRA less to boost union density than to develop an alternative to contract unionism. By helping nonunionized workers use Section 7 of the NLRA to act concertedly in their own defense, I argue, Somos is combating employer abuse, in the short run, and demonstrating that worker centers and their memberships may be transforming the US labor movement, in the long run. Their experiences illustrate the ability of organizations to redeploy existing institutional resources with potentially transformative results.

Sources: http://pas.sagepub.com/content/42/4/489.short

The Employment Effects of a “Good Cause” Discharge Standard in Montana

With passage of a 1987 statute, Montana became the only state to adopt a “good cause” standard for discharge of employees with contracts of unspecified duration. The new statute was a legislative response to a series of Montana Supreme Court cases, starting in 1980, that gave otherwise at-will employees a broad right to sue for wrongful discharge. Estimating a policy intervention model using monthly time-series data on Montana employment, the authors find that the seminal Montana wrongful discharge case reduced annual employment growth in Montana by 0.46 percentage points, and that the “good cause” statute restored the original growth rate. While the firing costs literature would suggest that employment should fall following implementation of a heightened discharge standard, the contrary result in Montana is likely due to important procedural and other limitations imposed by the new statute on discharged employees’ legal recourse.

Sources: http://ilr.sagepub.com/content/59/1/17.short

Termination of Domestic Workers’ Employment

This paper elucidates that termination of a domestic worker by an employer is not wrong however, the paper accentuates that the termination must strictly follow due process and comply fully with the procedure and the enabling laws governing and regulating labour relations. The paper looks at the conditions and situations of domestic workers in relation to how their employments are being terminated by the employers without due regard for the workers and the law. It raises the importance of sensitising the workers in this sector about their rights in order not be unfairly terminated and dismissed by the employers. It highlights available remedies that are available to a wrongfully dismissed worker.

Sources: http://www.mcser.org/journal/index.php/mjss/article/view/3052

A Critical Analysis of the Employees Separation Management Procedures with Regard to Organizational Stability in Kenya

Proper management of employee separation is crucial in organizational success and stability. It involves inducing employees to take business risks and training them to deal with different times of austerity. This is so as to avoid lawsuits by the affected employees.

Employees may be laid off in order to cut costs. This can be done through layoffs, retrenchments, early retirements and other forms of separation. The effects of these separations can trigger reduced stock prices and other negative consequences. To avoid these, separations must be well managed and if possible avoided altogether. This can be done by reducing dissatisfaction and making sure there is good match between employees and the organization for example. If there must be separation, the benefits must be carefully examined to make sure that both the organization and the employees create a win – win situation.

Sources: http://iiste.org/Journals/index.php/JEP/article/view/13924