Learning Employment Law

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Employment Law

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Employment Law

 

Rationale

 

Labour Law (American English: labor) or Employment Law is the body of laws, administrative rulings, and precedents which addresses the legal rights of, and restrictions on, workers and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In some countries (such as Canada), employment laws related to unionised workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made. The labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries.

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The Regulation of the Employment Relationship

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Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Black's Law Dictionary page 471 (5th ed. 1979).

 

Economies by Region

 

In a commercial setting, the employer conceives of a productive activity, generally with the intention of generating a profit, and the employee contributes labour to the enterprise, usually in return for payment of wages. Employment also exists in the public, non-profit and household sectors.

 

Regulation of permanent employment in selection of OECD countries, 1993–2003 (scale of 0–6)

Regulation of temporary employment in selection of OECD countries, 1993–2003 (scale of 0–6)

 

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Employment relationship

 

An Employment Contract is an agreement entered into between an employer and an employee at the commencement of the period of employment and stating the exact nature of their business relationship, specifically what compensation the employee will receive in exchange for specific work performed.

Terms and conditions of employment

The central focus of most employment contracts is money. The employee may be compensated through wages, a salary, or by commission. In addition to monetary compensation, the employment contract often specifies a fringe benefit package, including a retirement plan, employee stock options, the termination or resignation notice period, holiday entitlement, required hours of work, and (especially in the US) health insurance benefits.
Rules of Consulting Agreement

 

Some employers also use non-disclosure and non-compete clauses to protect their trade secrets from being dispersed when employees leave. Depending on where you live, the laws regarding enforcability of these clauses vary widely.

UK law holds that employment contracts have implied terms (assumed, unspoken, essential terms ), as well as explicit terms (typically those in writing). Legal precedent provides for example that there is an implied contractual term of trust and confidence, meaning that each party to the contract is expected to behave in a manner that allows the other to maintain trust and confidence in the other.

 

Tackling the high level of undeclared work

 

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An individual can face Termination of Employment, or job loss, for one of many reasons.

 

What is a termination benefit?

 

The most drastic termination of employment is involuntary termination, in its most severe form known as "firing" or "sacking". A less severe form is to be laid off or made redundant, which is usually not strictly related to personal performance but economic cycles or the company's need to restructure itself.

In a postmodern risk economy, such as that of the United States, a large proportion of workers will be laid off at some time in their life, and often not for reasons related to performance or ethics.

In many countries, in particular in social democracies as found in western Europe, firing an employee is expensive and risky in that firings require extensive documentation (in the event of a wrongful-termination lawsuit), and because fired employees may sue their former employers, disclose trade secrets to competitors, expose illegal practices or become extremely violent. Finally, in the United States, unemployment benefits are financed by companies, and a firm's unemployment costs increase with each worker laid off or fired. Depending on the circumstances and company policy, a fired employee may or may not be entitled to a severance package or unemployment benefits.

 

Wrongful dismissal, also called wrongful termination or wrongful discharge, is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. It follows that the scope for wrongful dismissal varies according to the terms of the employment contract, and varies by jurisdiction. Note that the absence of a formal contract of employment does not preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employee handbook.
Office Worker

 

Fired Minority Shareholder's Oppression Claim Not Barred by At-Will Employment Provisions in Shareholders' Agreement

 

Examples of wrongful dismissal might include:

1. dismissal without going through a contractually mandated dismissal process, which might involve an escalating series of warning letters, &c, where grounds for dismissal are not such as to meet the test for summary dismissal.

2. dismissal for a wrongful cause, for instance in a circumstance in which a dismissible action is falsely attributed to an employee.

3. racial, sexual, or age discrimination

4. retaliation for filing a workers' compensation claim or for reporting illegal employer activity (a.k.a. whistleblowing).

Wrongful dismissal will tend to arise first as a claim by the employee so dismissed. Many jurisdictions provide tribunals or courts which will hear actions for wrongful dismissal. A proven wrongful dismissal will tend to lead to two main remedies: reinstatement of the dismissed employee, and/or monetary compensation for the wrongfully dismissed.

A related situation is constructive dismissal, in which an employee feels no choice but to resign from employment for reasons imposed by the employer.

One way to avoid potential liability for wrongful dismissal is to institute an employment probation period after which a new employee is automatically terminated unless there is sufficient justification not to do so. The dismissed employee may still assert a claim, but proof will be more difficult, as the employer may have broad discretion with retaining such a temporary employee.

 

Data Privacy refers to the evolving relationship between technology and the legal right to, or public expectation of privacy in the collection and sharing of data.

 

Privacy and Human Rights

 

Privacy problems exist wherever uniquely identifiable data relating to a person or persons are collected and stored, in digital form or otherwise. Improper or non-existent disclosure control can be the root cause for privacy issues. The most common sources of data that are affected by data privacy issues are:

 

The challenge in data privacy is to share data while protecting the personally identifiable information. Consider the example of health data which are collected from hospitals in a district; it is standard practice to share this only in the aggregate. The idea of sharing the data in the aggregate is to ensure that only non-identifiable data are shared.

The legal protection of the right to privacy in general and of data privacy in particular varies greatly around the world.

The Universal Declaration of Human Rights states in its article 12 that:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

 

 

See also

 

International

 

 

Europe

  • Council of Europe data protection page
  • EU data protection page - The European Commission provides elaborate information on the following subjects:
    • Legislative documents
    • Transposition and implementation of Directive 95/46/EC
    • European Data Protection Supervisor
    • National Data Protection Commissioners
    • Art. 29 Data protection Working Party
    • Adequacy of protection in third countries and model contracts for the transfer of personal data to third countries
    • International links
  • Commission nationale de l'informatique et des libertés, the regulatory body enforcing privacy rules in data bases in Franc

 

Parental Leave is the right to take time off work, paid or unpaid, to care for a child or make arrangements for the child's welfare. Often, the term parental leave includes maternity, paternity, and adoption leave.

 

Working Parents

In most western countries parental leave is available for those who have worked for their current employer for a certain period of time. In the UK, for instance, working mothers are given the right to 26 weeks of paid leave for each child, 6 weeks at 90% of full pay and 20 weeks at a fixed amount.

An example of generous parental leave is Sweden, where all working parents are entitled to 18 months' paid leave per child, the cost being shared between employer and State. To encourage greater paternal involvement in child-rearing, a minimum of 3 months out of the 18 is required to be used by the "minority" parent, in practice usually the father, and some Swedish political parties on the Left argue for legislation to oblige families to divide the 18 months equally between both parents. Norway also has similarly generous leave.

The system in Bulgaria is even more generous, providing mothers with 45 days 100% paid sick leave prior the due date, 2 years paid leave, and 1 additional year of unpaid leave. The employeer is obliged to restore the mother to the same position upon return to work. In addition, pregnant women and single mothers cannot be fired.

 

There is currently a push to expand paid maternity leave in countries such as Australia and the United States. In 2000, parental leave was greatly expanded in Canada from 10 weeks to 35 weeks divided between the two parents, which can be expanded to a year. In Canada parental leave is paid for by the Employment Insurance system.

 

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A Layoff is the termination of employment of an employee or (more commonly) a group of employees for business reasons, such as the decision that certain positions are no longer necessary. Originally the term "layoff" referred specifically to a temporary interruption in work, as when factory work cyclically falls off. However, the term has long been applied also to the permanent elimination of positions as a cost-cutting measure (or for other reasons.)

Further euphemisms are often used to "soften the blow" in the process of firing and being fired, including redundancy, downsize and rightsize, workforce reduction and reduction in force. Mass layoff implies laying off a large number of workers. Attrition implies that positions will be eliminated as workers quit or retire. Early retirement means workers may quit now yet still remain eligible for their retirement benefits later.
Redundancy and the law

 

 

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"A Trade Union (Labour union) ... is a continuous association of wage-earners for the purpose of maintaining or improving the conditions of their employment."[1]

 

How has trade union membership changed in recent years?

Over the last three hundred years, trade unions have developed into a number of forms, influenced by differing political and economic regimes. The immediate objectives and activities of trade unions vary, but may include:

Provision of benefits to members: Early trade unions, like Friendly Societies, often provided a range of benefits to insure members against unemployment, ill health, old age and funeral expenses. In many developed countries, these functions have been assumed by the state; however, the provision of professional training, legal advice, and representation for members is still an important benefit of trade union membership.

Collective bargaining: Where trade unions are able to operate openly and are recognised by employers, they may negotiate with employers over wages and working conditions.

Industrial action: Trade unions may organise strikes or resistance to lockouts in furtherance of particular goals.

Political activity: Trade unions may promote legislation favourable to the interests of their members or workers as a whole. To this end they may pursue campaigns, undertake lobbying, or financially support individual candidates or parties (such as the Labour Party in the United Kingdom) for public office.

 

 

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A Collective Agreement is a labour contract between an employer and one or more labour unions.

Collective Bargaining consists of the process of negotiation between representatives of a union and employers (represented by management, in some countries by employers' organization) in respect of the terms and conditions of employment of employees, such as wages, hours of work, working conditions and grievance-procedures, and about the rights and responsibilities of trade unions.

The parties often refer to the result of the negotiation as a Collective Bargaining Agreement (CBA) or as a Collective Employment Agreement (CEA).

 

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Collective Bargaining Agreement between the University of Central Florida (UCF)

 

The Regulation of Discrimination in Employment

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The word Discrimination comes from the Latin "discriminare", which means to "distinguish between". To discriminate socially is to make a distinction between people on the basis of class or category without regard to individual merit. Examples of social discrimination include racial, religious, sexual, sexual orientation, disability, ethnic, height-related, and age-related discrimination. Whether a given example of discrimination is positive or negative is a subjective judgement (i.e., in the eye of the beholder).

Distinctions between people which are based just on individual merit (such as personal achievement, skill or ability) are generally not considered socially discriminatory. Consequently, prohibitions against such discrimination generally will not prevent a government from acting in a legitimate and justifiable way based upon the merit of an individual person.
International Day for the Elimination of Racial Discrimination

 

Social theories such as Egalitarianism claim that social equality should prevail. In some societies, such as the U.S.A., each individual's civil rights include the right to be free from government sponsored social discrimination.[1]

In contrast, conservative writer and law professor Matthias Storme has claimed that the freedom of discrimination in human societies is a fundamental human right, or more precisely: the basis of all fundamental freedoms and therefore the most fundamental freedom. Author Hans-Hermann Hoppe, in an essay[2] about his book Democracy: The God That Failed, asserts that a natural social order is characterized by increased discrimination.

 

 

See also

Race and Sex Discrimination Generally

Age Discrimination in General

The Nature of Retaliation

 

The Regulation of the Employment Environment

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Environmental Health & Safety

Occupational Safety and Health (OSH) is a cross-disciplinary area concerned with protecting the safety, health and welfare of people engaged in work or employment. As a secondary effect OSH may also protect employers, customers, suppliers, and members of the public who may experience an impact from the workplace environment.

The primary, and in the view of many, the most prominent reason for establishing occupational safety and health (OSH) standards is moral - an employee should not have to expect that by coming to work life or limb is at risk, nor should others be adversely affected by their undertaking.

OSH standards are, generally speaking, further reinforced in both civil law and criminal law; it is accepted that without the extra "encouragement" of potential regulatory action or litigation, many organisations would not act upon their implied moral obligations.

 

A further factor that favours OSH is economic - many governments realize that poor occupational safety and health performance results in cost to the State (e.g. through social security payments to the incapacitated, costs for medical treatment, and the loss of the "employability" of the worker). Employing organisations also sustain costs in the event of an incident at work (such as legal fees, fines, compensatory damages, investigation time, lost production, lost goodwill from the workforce, from customers and from the wider community).

In the European Union, Member States have enforcing authorities to ensure that the basic legal requirements relating to occupational safety and health are met. In many EU countries, there is strong cooperation between employer and worker organisations (e.g. Unions) to ensure good OSH performance as it is recognized this has benefits for both the worker ( throughmaintenance of health) and the enterprise (through improved productivity and quality).

In the UK, health and safety legislation is drawn up and enforced by the Health and Safety Executive under the Health and Safety at Work Act 1974. Increasingly in the UK the regulatory trend is away from prescriptive rules, and towards risk assessment. Recent major changes to the laws governing asbestos and fire safety management embrace the concept of risk assessment.

In the USA, OSHA, the Occupational Safety and Health Administration, has been regulating occupational safety and health since the 1971. OSH regulation of a limited number of specifically defined industries was in place for several decades before that, and broad regulations by some of the individual states was in place for many years prior to the establishment of OSHA.

In Canada, workers are covered by provincial or federal labour codes depending on the sector in which they work. Workers covered by federal legislation (including those in mining, transportation, and federal employment) are covered by the Canada Labour Code; all other workers are covered by the health and safety legislation of the province they work in.

Occupational safety and health may involve interaction among several technical disciplines, including occupational medicine, occupational (or industrial) hygiene, safety engineering, health physics, ergonomics, toxicology, and psychology.

 

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Work-life balance is a person’s control over the conditions in their workplace. It is accomplished when an individual feels dually satisfied about their personal life and their paid occupation. It mutually benefits the individual, business and society when a person’s personal life is balanced with his or her own job.

The work-life balance strategy offers a variety of means to reduce stress levels and increase job satisfaction in the employee while enhancing business benefits for the employer. In our increasingly hectic world, the work-life strategy seeks to find a balance between work and play.

A sentence that brings the idea of work life balance to the point is: "Work to live. Don't live to work."
Tips to Achieve Work Life Balance

 

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Business Law

 

 

Recommended Texts

Employment Law for Business

Employment Law for Business,

Dawn D. Bennett-Alexander, University of Georgia
Laura P. Hartman, DePaul University

ISBN: 0073028959
Copyright year: 2007

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