Employment Law (in Plain English)

by Leonard D. DuBoff, Kenneth A. Perea, Christopher Perea, Lauren Barnes

Overview

Employment Law (in Plain English)®provides both employers and employees the information they need in order to understand the law as it relates to their working relationship. This helpful guide will enable readers to identify and prevent many of the issues which can and do occur in the employment context, thus saving everyone valuable time and money and establishing a stronger workforce. While this book is not intended to replace the reader’s employment lawyer, it will provide the ability to assist one’s lawyer in litigation should the need arise. Chapters discuss a variety of topics including:

• Advertising for new positions and vacancies
• Interviewing, hiring, and other pre-employment considerations
• Employment contracts
• Union shops
• Collective bargaining agreements
• Employee handbooks
• First day on the job
• Wages hours and other terms and conditions of employment
• On-the-job rights and responsibilities
• Employee dignity, privacy, and reputation
• Ownership of work created by employees
• Private employment versus public employment
• Internet concerns
• Virtual offices
• Employees versus independent contractor statutes
• Discipline and termination of the employment relationship
• Dispute resolution
• Fringe benefits
• How to find a lawyer

In easy-to-understand terms and with plenty of examples, this essential handbook supplies readers with invaluable insights on the legal nature of their working relationships.

Product Details

ISBN-13:	9781621537670
Publisher:	Allworth
Publication date:	01/26/2021
Series:	In Plain English
Pages:	336
Sales rank:	668,044
Product dimensions:	5.90(w) x 8.90(h) x 1.10(d)
Age Range:	3 Months to 18 Years

About the Author

Leonard D. DuBoff is the founder of the DuBoff Law Group, PC, and an internationally recognized expert who has lectured on legal issues throughout the world. He graduated magna cum laude from Hofstra University with a degree in engineering and summa cum laude from Brooklyn Law School, where he was the research editor of the Brooklyn Law Review. He was a professor of law for almost a quarter of a century, teaching first at Stanford Law School and then at Lewis & Clark Law School. He lives in Portland, Oregon.

Kenneth Perea graduated from the University of San Francisco School of Law and served as an intelligence officer in the US Army in 1973-1974. Afterward, Ken began practicing law in San Diego as in-house counsel for a large public entity which included serving as management counsel in a number of labor-management disputes with its employees.  During his more than 38 years’ service as a full-time impartial arbitrator of labor management disputes, Ken has authored several thousand binding arbitration awards in every imaginable industry in America. He is a co-author of Absenteeism in the Workplace and an editor of Discipline and Discharge, First Edition.

Christopher Perea graduated from Cornell University where he majored in English Literature and History. While attending Willamette University College of Law, he worked in both the Deschutes County General Counsel’s office and the Marion County District Attorney’s office. Chris has assisted his father, a prominent labor arbitrator, with employment arbitrations for a significant amount of time. He is a co-author of The Law (in Plain English)® for Galleries and a practicing attorney with the DuBoff Law Group, PC, where he handles cases of kinds, including many related to employment law.

Lauren Barnes is an attorney in Portland, Oregon, where her practice focuses on personal injury law. She graduated from Colorado State University in 2013 with a BA in International Studies and Political Science. Barnes graduated from Willamette University College of Law in 2017, where she was a student assistant for legal research and writing, vice president of the Moot Court Board, and an executive editor for the Willamette Journal of International Law and Dispute Resolution.

Table of Contents

Acknowledgments xv

Introduction xviii

Chapter 1 Advertising 1

Government Regulations 1

Publicity and Privacy 2

Unauthorized Use of Trademark 3

Unauthorized Use of Copyrighted Material 3

Use of the Names or Images of People in Advertisements 5

Geographic Locations 5

Advertising for Newly Created Positions 5

Advertising for Replacement of Existing Employees 6

Where to Advertise 6

Working with Employment Agencies and Headhunters 7

Potential Employee Considerations 9

Conclusion 9

Chapter 2 Interviewing, Hiring, and Other Preemployment Considerations 10

Employment Applications, Interviews, and Drug Testing-Questions Employers Can and Cannot Ask 10

Federal Laws Prohibiting Job Discrimination 12

Employment Applications and Interviews 13

Drug Screening Tests 18

Genetic Information Nondiscrimination Act (GINA) 24

Fair Credit Reporting Act (FCRA) 28

Employee Polygraph Protection Act of 1988 (EPPA) 31

Written Job Descriptions 35

Discrimination in Hiring in the Federal Sector 39

Discrimination in Other Aspects of the Employment Relationship 40

Federal Laws Prohibiting Discrimination in the Employment Relationship 41

Employers and Other Entities Covered by EEO Laws 46

Filing Charges with EEOC 47

Employer Defenses to Title VII, ADA, and ADEA Claims 52

Probationary Periods 53

Independent Contractors in a Gig Economy 54

Employer Tax Liability 56

Temp Agencies and Employees 56

Conclusion 57

Chapter 3 Basics of Contracts 59

Contract Basics 59

Types of Contracts 60

Express Contracts 60

Implied Contracts 60

Understanding Contract Principles 61

Proving an Agreement 62

When Written Contracts Are Necessary 63

Essentials to Put in Writing 64

No-Cost Written Agreements 65

Confirming Memorandum 66

Additional Terms 68

Contracting Online 68

Conclusion 69

Chapter 4 Union Shops 70

A Brief Summary of the Historical Background of Collective Bargaining and Labor Unions 70

Can an Employer's Property Be Lawfully Accessed for Purposes of Trying to Unionize? 74

Solicitation by Employees of the Employer 75

Nonemployee Solicitation on Behalf of Unions 78

Captive Audience Speeches 79

Access to the Names and Addresses of an Employer's Employees 79

Hypothetical Example 79

Conclusion 81

Chapter 5 Collective Bargaining Agreements 83

Introduction 83

The National Labor Relations Act (NLRA) 85

Collective Bargaining and Representation of Employees 86

Strikes 89

Unfair Labor Practices of Employers 93

Unfair Labor Practices of Unions 98

Conclusion 104

Chapter 6 Creating Effective Employee Handbooks 105

"Employee Handbook" Defined 106

Preliminary Considerations Before Creating an Employee Handbook 106

Reasons to Create Employee Handbooks 109

Small Start-up Companies 109

Family Businesses 110

How to Prepare an Effective Employee Handbook 110

Items That Should Be Included in Employee Handbooks 111

Item That Should Be Excluded from Employee Handbooks 116

Tasks Following Drafting an Employee Handbook 117

Conclusion 118

Chapter 7 An Employee's First Day-Onboardlng 119

The Importance of Onboarding 120

Sexual Harassment Pamphlets and Videos 121

Items to Be Accomplished Before a New Employee's First Day 122

Additional Tasks to Be Performed Before a New Employee's First Day 124

Orientation During New Employees First Day on the Job 127

Conclusion 129

Chapter 8 Regulation of Employee Wages and Hours 130

Fair Labor Standards Act 130

FLSA Amendments under the Affordable Care Act 138

Federal Contractor Labor Standards 139

The Portal-to-Portal Act 140

Wage Garnishment (Consumer Credit Protection Act) 141

Conclusion 142

Chapter 9 On-the-job Rights and Responsibilities-Employees' Dignity, Privacy, and Reputation 143

Federal and State Laws 143

The US Constitution 151

Common-Law Tort Liabilities Applicable to an Employer's Workplace 153

Employment Contracts 160

Wrongful Termination 161

Progressive Discipline 162

Issues Relating to the COVID-19 Pandemic 163

OSHA and Covid-19 163

EEOC and COVID-19 169

The Duty to Bargain Concerning Mandatory Subjects of Bargaining 175

Conclusion 178

Chapter 10 Ownership of Work Created by Employees 179

Introduction 179

Tangible Property Items 179

Intangible Property Items 180

Chapter 11 The Internet 197

Protecting Business Property 197

Protecting Consumer Information 198

Domain Names 198

Websites 199

Internet Advertising 201

Server Protection 203

Email 204

Chapter 12 Private Employment vs. Public Employment 205

Private-Sector Employment 205

Public-Sector Employment 209

Chapter 13 The Virtual Office & Reopening After COVID-19 211

Increased Productivity 211

Higher Retention Rates 212

Competitive Edge 212

Environmental Friendliness 212

Cost-Effectiveness 212

Mobile Work 213

Communication Devices 213

Tools and Equipment 215

COVID-19 Reopening 215

Chapter 14 Independent Contractor vs. Employees Statutes 220

Independent Contractors 220

Employees 222

Chapter 15 Discipline and Termination of the Employment Relationship 231

Introduction 231

The Probationary Period 231

Distinctions between Federal, Public, and Private Employment 233

Discipline and Discharge in the Private Sector 234

Conclusion 244

Chapter 10 Dispute Resolution 245

Introduction 245

Mediation 245

Settlement Conference 246

Arbitration 247

Litigation 247

Administrative Agencies 249

Chapter 17 Fringe Benefits 250

Introduction 250

Retirement Plans 250

Health-care Plans and the Affordable Care Act 257

Time Off 258

Chapter 18 Finding a Lawyer and an Accountant 260

Finding a Lawyer 261

Evaluating a Lawyer 262

Using a Lawyer 262

Finding an Accountant 263

Appendix A Laws Governing Non-compete Agreements by State 264

Appendix B Federal Employment Laws 267

Appendix C Employment At- Will Exceptions by State 272

Appendix D Sample Mediation and Arbitration Clause 275

Glossary 289

About the Authors 303

Index 306