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Labour & employment law

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EMPLOYMENT CONTRACTS: WHAT IS IMPLIED AND WHAT IS NOT? RICHARD J. GILBORN, Q.C., April 30, 2004.

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Lecture  Those rules regulating the legal relationship between: ◦ employees, ◦ employers, and also between employers and employees and the Sate,

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Employment Law

Mar 24, 2019

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Employment Law. Week 8. Fair Labor Standards Act (FLSA. Regulated wages and hours • Guidelines on minimum wage Overtime - Child Labor. Exempt Non-exempt. Non exempt – need to be paid time and a half for any hours over 40 hours a week Exempt – are not required to be paid overtime

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• union members
• collective bargaining
• minimum wage
• negotiate labor disputes
• national labor relations board

Presentation Transcript

Employment Law Week 8

Fair Labor Standards Act (FLSA • Regulated wages and hours • Guidelines on minimum wage • Overtime - Child Labor

Exempt Non-exempt Non exempt – need to be paid time and a half for any hours over 40 hours a week Exempt – are not required to be paid overtime • Executive, administrative and professional • Independent contractors • Outside salesperson

What do you think? • Myrtle Dover is a domestic helper who resides with the Remingtons. At times, she works more than 8 hours per day and always works on Saturdays and Sundays unless the family is vacationing. Myrtle is paid a set fee each week in accordance with the minimum wage law, but she is not paid overtime. • Are the Remingtons in violation of the maximum hour laws?

What do you think? • Can an employer give employees straight compensatory time (one hour off for every overtime hour worked) instead of overtime?

What do you think? • Veronica is a waitress at Didi’s Diner. She is paid $2.13 per hour, and she is entitled to keep all of her tips, which average $8.50 per hour. • Is Didi’s in compliance with the FLSA?

Child Labor • Children who are at least 16 years of age may work in any occupation as long as it has not been deemed hazardous by the Secretary of Labor. • Children who are 14 or 15 years of age are not permitted to work in manufacturing, mining, and other occupations that interfere with their schooling and/or their health and well-being. • Children under 14 are not permitted to work unless it is for their parents or approved by the court for entertainment or athletic contracts.

What do you think? • Lawrence Connery is an attorney with his own practice. He employs his 12-year-old daughter, Tiffany, to work for him 2 hours after school each day. Her responsibilities include photocopying, stapling, dusting, and making coffee. • Is this permissible?

What do you think? • Michele Goldsmith is a 14-year-old freshman at Richmond Hill High. She works from 2 P.M. until 10 P.M. at Foodway 3 days a week. In order to get to work on time, she has to cut her last class, which, because of a rotating schedule, changes each day and is not particularly noticeable. • Is this permissible?

Unions • Determine the propensity for workers to organize unions in your business field and in your region. • Familiarize yourself with the various labor laws. • Hire a specialist to negotiate collective bargaining agreements. • Appreciate the significance of the National Labor Relations Board. • Know that the National Mediation Board is available to negotiate labor disputes.

Unfair Labor Practices • Unfair Labor Practices committed by employers include: • Refuse to collectively bargain with the union representative • Discriminate against union members • Retaliate against employees who file a grievance with the union • Interfere with union elections • Unduly influence union members or representatives

Unfair Labor Practices • Unfair Labor Practices committed by unions include: • Coerce employees to join unions • Pilfer union dues • Refrain from collective bargaining • Call an illegal strike that will affect the health and safety of the nation • Block the entrance to employers facility

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Employment law

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• Preferences

Employment Law - PowerPoint PPT Presentation

• Employment Law

According to this doctrine, an employer is permitted to discharge an employee at ... Union: organization of employees formed to ... Outlaws featherbedding ... – PowerPoint PPT presentation

• According to this doctrine, an employer is permitted to discharge an employee at any time, for any or no reason, with or without notice.
• Both parties are free to leave an employment relationship
• Union organization of employees formed to promote the welfare of its members.
• Collective Bargaining Agreement a contract negotiated by the employer and representatives of the union
• Working Conditions
• Job Security
• Layoff and Firing policies
• Grievance Procedure a series of steps employees must take to appeal an employers decision they feel violates just cause.
• Collective Bargaining Agreements do not guarantee a job for life.
• They may however provide for severance pay in the case of a layoff or closing.
• Worker Adjustment Retraining Notification Act (WARN)
• This compels some companies to give employees at least 60 days notice of a factory shut down or massive layoff.
• Only affects companies with 100 workers.
• Civil Rights Act of 1964
• Race, Color, Creed, National Origin, or Gender
• Age Discrimination in Employment Act
• Employers expect Employees
• To have the skills and experience they claim to have
• Reasonable amount of work
• To be loyal, honest, dependable, and abide company rules
• Employees expect
• To be paid regularly
• To work in a safe environment
• To be taught how to do their job
• To be treated fairly
• Opportunity for raises and promotions
• If the contract does not state the length of employment, it can be terminated at any time.
• Exceptions???
• Wrongful Discharge (Unjust dismissal) provides employees with grounds for legal action against employees who have treated them unfair.
• Promissory Estoppel See p. 437
• Implied Contract employer has said, written, or done something to lead the employee to reasonably believe that he or she is not an at-will employee.
• Public Policy Tort must prove his/her firing hurt the public at large
• Intentional Infliction of Emotional Distress See p. 441 Example 5
• Implied Covenant in any employment relationship there is an implied promise that the employer and the employee will be fair and honest in their dealings.
• National Labor Relations Act
• To encourage collective bargaining, discourage unfair labor practices and provide federal assistance in obtaining fair bargaining.
• Labor-Movement Relations Act
• Tried to equalize the power of labor and management
• 60 day cooling off period
• Closed shops illegal
• Union shops are allowed
• Outlaws featherbedding
• The practices of assigning more employees than are actually needed to a job.
• Labor Management Reporting and Disclosure Act
• To stop corruption in unions they must register their constitutions and bylaws with the Security of Labor
• Child Labor Laws
• control the work that children are permitted to do
• 1842 Massachusetts limited children under 12 to 10 hours per day
• 1880 Only a few states had laws
• 1930 44 states had laws dealing with non-manufacturing occupations
• 1934 Conference on labor Legislation adopted a set of standards
• Updated in 1974.
• Prohibits the interstate or foreign shipment of any goods produced in factories with oppressive child labor
• Oppressive Child any minor under 16 (under 18 for dangerous work)
• Children working in agriculture after school hours
• Child actors
• Children working for their parents in jobs other than manufacturing
• Children delivering newspapers

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Restitution in Employment Law Legal Disputes

Restitution plays a pivotal role in employment law legal disputes, providing a means of restitution for employees who have suffered losses due to employer wrongdoing. There are three primary forms of restitution: equitable, legal, and restitutionary, each aimed at restoring the employee to their pre-breach position or compensating them for actual losses. Calculating restitution damages involves quantifying losses, including lost wages, benefits, and earning capacity, as well as non-monetary losses like emotional distress. Proving entitlement to restitution requires demonstrating a clear causal link between the employer's actions and the resulting losses. Understanding the complexities of restitution in employment law is essential for resolving disputes fairly and effectively, and further exploration of this topic can provide valuable insights into achieving justice for wronged employees.

Table of Contents

Types of Restitution in Employment

Three primary forms of restitution in employment law exist: equitable, legal, and restitutionary. These forms of restitution serve as compensation for employees who have suffered losses due to breaches of contractual duties or violations of statutory rights. Equitable restitution is based on principles of fairness and justice, aiming to restore the employee to their pre-breach position. This form of restitution is often used in cases involving implied contractual terms or fiduciary duties. Legal restitution, on the other hand, focuses on compensating employees for actual losses suffered due to breaches of express contractual terms. Restitutionary restitution seeks to strip the employer of any unjust enrichment gained at the expense of the employee. This form of restitution is often applied in cases involving unauthorized deductions from wages or misuse of confidential information. By understanding these different forms of restitution, employees and employers can better navigate the complexities of employment law disputes and facilitate that justice is served.

Calculating Restitution Damages

To determine the appropriate relief for employees, calculating restitution damages is a critical step in employment law disputes, as it enables the court to quantify the losses suffered by the employee and provide fair compensation. This calculation involves using economic models and damage formulas to assess the financial harm suffered by the employee due to the employer's wrongful actions. The goal is to restore the employee to their pre-injury position, making them whole again.

In calculating restitution damages, the court considers various factors, including the employee's lost wages, benefits, and earning capacity. The court may also consider non-monetary losses, such as emotional distress and reputational harm. Economic models, such as the "before and after" approach, are used to quantify these losses. Damage formulas, like the "multiplier method," are also employed to calculate the total amount of restitution damages owed to the employee. By using these methods, the court can arrive at a fair and reasonable estimate of the restitution damages, providing the employee with the necessary compensation for their losses.

Proving Entitlement to Restitution

In establishing a claim for restitution, employees must demonstrate a clear causal link between the employer's wrongful actions and the resulting losses, thereby proving their entitlement to restitution. This burden of proof lies with the employee, who must show that the employer's actions were the direct cause of their losses. The employee must provide evidence that establishes a clear chain of causation, demonstrating how the employer's wrongful conduct led to their damages.

The causal link requirement is vital in restitution claims, as it verifies that the employer is only liable for the specific losses resulting from their wrongful actions. The burden shifting principle applies, where the employee must first establish a prima facie case, and then the employer must provide evidence to rebut the claim. If the employee fails to demonstrate a clear causal link, their claim for restitution may be rejected. By understanding the importance of establishing a clear causal link, employees can strengthen their claims for restitution and increase their chances of success in employment law disputes.

Restitution and Wrongful Termination

In cases of wrongful termination, compensation may be sought as a solution for an employer's breach of contract. This breach can take various forms, including failure to provide adequate notice, non-payment of wages, or termination in violation of an employment agreement. The legal solutions available to employees in such situations will depend on the specific circumstances of the breach and the jurisdiction in which the termination occurred.

Employer's Breach of Contract

Frequently, employers breach their contractual obligations to employees, precipitating claims of wrongful termination and restitution. In such cases, the employer's breach of contract can take various forms, including failure to provide a safe working environment, non-payment of wages, or wrongful termination. These breaches often arise from express or implied terms of the employment contract. Implied terms, in particular, can be crucial in determining the employer's contractual obligations. For instance, the duty of mutual trust and confidence is an implied term that requires employers to maintain a certain level of trust and respect towards their employees.

When an employer breaches their contractual obligations, employees may seek restitution for the harm suffered. This can include compensation for lost wages, benefits, or other damages resulting from the breach. In some cases, employees may also seek reinstatement or specific performance of the contract. To establish a breach of contract claim, employees must prove that the employer failed to fulfill their contractual obligations, and that this failure resulted in damages. By understanding the employer's contractual obligations and the implications of breach, employees can better navigate employment disputes and seek appropriate remedies.

Employee's Legal Remedies

When an employer breaches their contractual obligations, employees have several legal options at their disposal, including restitution and wrongful termination claims, which can provide compensation and relief for the harm suffered. These legal avenues are vital in protecting employees' legal rights and ensuring fair treatment in the workplace. Under restitution, employees can seek compensation for losses incurred as a result of the employer's breach, such as unpaid wages or benefits. Wrongful termination claims, on the other hand, allow employees to seek damages for being terminated illegally, such as in cases of discrimination or retaliation. To pursue these claims, employees must provide evidence of the employer's breach and the resulting harm. A successful claim can result in reinstatement, back pay, and other forms of relief. It is vital for employees to understand their legal rights and options in the event of an employer's breach, and to seek legal counsel to navigate the complex process of seeking restitution and relief.

Restitution for Emotional Distress

In the context of employment law, restitution for emotional distress acknowledges the emotional harm suffered by employees as a result of wrongful actions by their employers. This form of restitution comprises damages for emotional harm, mental anguish claims, and psychological injury relief. As we explore the nuances of restitution for emotional distress, it is crucial to examine the legal frameworks and precedents that govern these types of claims.

Emotional Harm Damages

Emotional harm damages, also known as restitution for emotional distress, constitute a distinct category of compensation in employment law, acknowledging the tangible impact of workplace misconduct on an individual's mental well-being. This type of damages recognizes that employees may suffer emotional harm as a result of workplace bullying, discrimination, or harassment, which can lead to personal struggles such as anxiety, depression, or post-traumatic stress disorder (PTSD).

In employment law, emotional harm damages are intended to provide compensation for the emotional suffering and distress experienced by employees as a result of their employer's wrongdoing. These damages can be awarded in addition to other forms of compensation, such as back pay or reinstatement. To establish a claim for emotional harm damages, employees must provide evidence of the harm they have suffered, including medical records, witness statements, and other relevant documentation.

The awarding of emotional harm damages serves as a deterrent to employers who engage in wrongful conduct, encouraging them to maintain a safe and respectful work environment. By recognizing the emotional impact of workplace misconduct, employment law acknowledges the importance of protecting employees' mental health and well-being.

Mental Anguish Claims

Mental anguish claims, a subset of emotional harm damages, provide employees with a means to seek restitution for the profound emotional distress and psychological suffering resulting from egregious employer misconduct. This type of claim acknowledges that employees may experience severe emotional reactions to traumatic events in the workplace, such as harassment, discrimination, or retaliation. These reactions can have a lasting impact on an employee's mental health and well-being.

Some common aspects of mental anguish claims include:

• Emotional triggers : Specific events or actions that trigger intense emotional responses, such as anxiety, fear, or depression.
• Trauma impact : The long-term effects of traumatic events on an employee's mental health, including symptoms of post-traumatic stress disorder (PTSD).
• Severe emotional distress : Claims may require evidence of severe emotional distress, such as suicidal ideation, panic attacks, or debilitating anxiety.
• Causation : The employer's misconduct must be directly linked to the employee's emotional distress, demonstrating a clear cause-and-effect relationship.

Psychological Injury Relief

Psychological injury relief, a vital component of employment law, provides a framework for employees to seek restitution for the profound emotional distress and psychological suffering resulting from egregious employer misconduct. This type of relief acknowledges the severe impact of employer wrongdoing on an employee's mental well-being, including anxiety, depression, and post-traumatic stress disorder (PTSD).

Through psychological injury relief, employees can seek compensation for therapy benefits, medical leave, and other forms of relief to address the harm inflicted upon them. A positive workplace culture that prioritizes employee well-being is fundamental in preventing psychological injuries. Employers must take proactive measures to create a safe and supportive work environment, lest they face legal consequences and reputational damage. By acknowledging the importance of psychological injury relief, we can work towards creating a more compassionate and equitable employment landscape.

Enforcing Restitution Orders

Compliance with restitution orders is vital to guarantee that wronged employees receive the compensation they are entitled to, and employers must be held accountable for fulfilling their obligations. Failure to comply with restitution orders can lead to further legal action, resulting in additional costs and penalties for employers. To guarantee compliance, employers must be aware of the compliance deadlines and Court jurisdiction governing the restitution order.

Key considerations for enforcing restitution orders include:

• Identifying the relevant Court jurisdiction and adhering to its rules and procedures
• Understanding the compliance deadlines and making timely payment of restitution
• Maintaining accurate records of restitution payments and communications with the Court
• Being aware of the potential penalties and consequences of non-compliance, including fines and further legal action

Avoiding Restitution Claims

Employers can substantially reduce the likelihood of restitution claims by implementing and enforcing fair labor practices, maintaining accurate records, and fostering open communication with their employees. By taking proactive measures, employers can mitigate the risk of restitution claims and avoid costly legal disputes.

Frequently Asked Questions

Can i claim restitution for unpaid bonuses or commissions?.

To claim restitution for unpaid bonuses or commissions, you must provide evidence of the bonus structure and contractual agreements, as well as proof of earned but unpaid amounts, to establish a clear entitlement to the disputed sums.

Is Restitution Available for Breach of Employment Contract?

In cases of breach of employment contract, restitution may be available to compensate employees for losses incurred due to an employer's failure to fulfill contractual obligations, potentially holding the employer liable for damages.

Do I Need a Lawyer to Pursue Restitution Claims?

When pursuing restitution claims, it is highly advisable to seek legal guidance to navigate the complex process, ensuring accurate calculation of damages and minimizing Court fees, thereby increasing the likelihood of a successful outcome.

Can I Negotiate a Settlement Instead of Restitution?

In lieu of pursuing restitution, parties can negotiate out-of-court settlements, potentially resulting in confidential agreements that resolve disputes efficiently and discreetly, often with more flexibility and control than litigation .

Is Restitution Taxable as Ordinary Income?

Generally, restitution is considered taxable as ordinary income, subject to reporting requirements. The recipient must report it on their tax return, and the payer may be required to issue a Form 1099-MISC, depending on the amount and circumstances.

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