Other Labor Laws
Fair Labor
Standards Act
The Fair Labor Standards Act (known as FLSA)
was passed by Congress in 1938. It establishes the minimum
wage level (currently $5.15 per hour-PA), sets child labor
standards, and mandates overtime wages. The FLSA covers most
employers and employees, although there are numerous
exemptions, including railroad, air carrier, and trucking
employees. State and local government employees are covered
by the FLSA. The law is enforced by the U.S. Department of
Labor Wage and Hour Division and by private lawsuit.
Because the FLSA overtime requirement of one
and one-half pay is duplicated in almost all
collective-bargaining agreements, unions usually file
contract grievances over overtime issues, rather than
utilizing the slower procedures of the Wage and Hour
Division. Nevertheless, there are times when the FLSA comes
in handy.
> Definitions of work time- PLSA regulations
provide definitions of "hours worked." The regulations
should be consulted when there is a dispute about whether
employees are entitled to receive pay for such periods as:
waiting time, rest periods, meal periods, changing-clothes
time, travel time, on-call time, grievance time, or
work-at-home time. Ask the Wage and Hour Division local
office for a copy of their publication. Hours Worked Under
the Fair Labor Standards Act of 1938.
> Two jobs worked - When employees are assigned to
lower-paid jobs on overtime, should they receive one
and one-half: (1) their usual hourly rate; (2) the rate on
the second job; or (3) a weighted average of the two jobs?
FLSA regulations mandate blended rates — unless the union
agrees otherwise.
>Non-scheduled overtime Some employees put in extra time
without realizing they are entitled to overtime pay. For
example, they may have a habit of beginning work early,
working through their meal breaks, working after their shift
ends, or working at home. Under the FLSA, employers must pay
an overtime premium for work they assign, permit, have
knowledge of, or should have knowledge of.
Overtime work does not have to be requested, scheduled, or
be on the clock. Employees can put in claims for up to three
years of back wages when they leam of their rights.
Family and Medical Leave Act
The Family and Medical Leave Act (known as the FMLA) was
passed in 1993.325 It covers private-sector
employers with 50 or more employees and all state and local
governmental agencies. It is enforced by the U.S. Department
of Labor Wage and Hour Division.
The FMLA guarantees employees up to 12 weeks of unpaid
leave each year to:
1. Care for an immediate family member (spouse, child, or
parent) with a serious health condition
2. Care for a newborn, adopted, or newly-placed foster
child
3. Treat or recover from a serious health condition (a
condition which requires two or more treatments by a
health-care provider, and which causes the loss of four or
more days from work or is a part of a chronic disorder).
The FMLA supersedes contract provisions which provide for
less than 12 weeks time off. Leave requests for FMLA
purposes must be granted — including the allowance of
part-time or reduced-week schedules for employees with
serious health conditions. Employers cannot impose penalties
for FMLA absences and must return employees to their jobs
(or equivalent positions). Group health insurance benefits
must be continued during the leave.
To be entitled to an FMLA leave, employees must satisfy
three eligibility tests:
1. They must have worked for the employer for a total of
at least 12 months (consecutive or non-consecutive).
2. They must have worked at least 1,250 hours for the
employer during the previous 12 months.
3. They must work at a location where at least 50
employees are employed by the employer within 75 miles.
The FMLA gives unions a tool to defend employees who face
discipline or discharge for health-related attendance
problems. For example, an employee under treatment for a
chronic back condition must be allowed up to 60 days off per
year (12 work weeks) without penalty. This makes it
difficult, if not impossible, for employers to enforce
so-called "no fault" absenteeism policies.
Literature about the FMLA can be obtained from your local
Wage and Hour Division office. You should file complaints
with this office if employees are denied an FMLA leave, are
not given their jobs back, or are punished for absences
covered by the FMLA.
Occupational Safety and Health Act
The Occupational Safety and Health Act (known as the OSH
Act) was passed by Congress in 1970.
The OSH Act is enforced by the Occupational Safety and
Health Administration (known as OSHA). In some states, the
OSH Act is enforced by state agencies.
OSHA has jurisdiction over private-sector employers,
regardless of size, except for industries that are regulated
by other federal agencies, such as mining, railroads,
nuclear power, and trucking. The OSH Act establishes health
and safety standards for various jobs and industries. OSHA
inspectors make unannounced visits to workplaces according
to their own schedules and in response to complaints from
individuals and unions.
OSHA can fine enterprises up to $70,000 for willful or
repeat violations and up to $7,000 for each other violation.
OSHA can order employers to close down dangerous machinery
or work areas.
An OSHA regulation allows an employee to refuse unsafe
work if the following conditions exist:
1. The employee has a reasonable belief, based on what he
or she knows at the time, that there is a real danger of
death or serious physical injury.
2. The employee asks the employer to eliminate
the danger, but the employer fails to do so.
3. The danger is so urgent that the employee cannot risk
waiting until OSHA can conduct an inspection.
4. The employee has no reasonable alternative.
The U.S. Department of Transportation has a similar rule
for employees in the trucking industry.
(The NLRA also has a provision allowing employees, in
certain situations, to refuse unsafe work. The work must be
"abnormally dangerous.
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Other Useful Information
Just Cause
A key question in discipline cases is "Did management have
'just cause' for imposing the discipline?"
The "just cause" standard is written into most union
contracts. Some contracts may use "cause," "proper
cause,"reasonable and sufficient cause," etc. These usually
mean the same as "just cause." Even if a contract does not
use the words "just cause," an arbitrator may apply that
standard anyway.
"Just cause," means that the employer...
> Had a good reason to discipline the worker
>Took action consistent with past practice
> Treated the worker as other workers would have been
treated
> Took action that was appropriate for the particular
offense
Past Practice
Past practice is a consistent and frequent pattern of
conduct by the employer over a period of years, which
benefits employees. Both management and the union must have
known about and accepted the conduct. An example of a past
practice is a 15-minute wash-up period at the end of a
shift, not mentioned in the contract, that for years has
been allowed by a particular employer.
If an employer tries to discipline someone who was following
a well established past practice, you should file a
grievance.
An Employee Appears with a Problem
> Put the employee at ease
> Encourage discussion on the problem
> Let employee tell own story but guide the discussion...
Listen attentively
> Give your full attention. Do not create a negative
atmosphere
> When employee has finished, ask questions
> Do not personalize the issues. Maintain an objective
attitude
> Clarify any doubtful or ambiguous points
> Do not ask questions that will reveal some predisposed
decision on how to handle the grievance
> Do not jump to conclusions-investigate thoroughly
> Distinguish between facts, opinions, allegations and
assumptions
> Ask employee to repeat story-be aware of verbatim story
and inconsistencies
> Probe for weaknesses
> Take notes but not too early or too quickly
> Get names, times, places
> Insulate against being intentionally baited or irritated
> Recap your understanding of what the grievance is and
remedy sought
Next Step
> Check grievability or arbitrability
> Check the appropriate contract provisions, rules or
policies
> Check the time limits
> Locate and interview witnesses
>Talk to all persons who can shed light on the case,
including those the other party will use
>Check the facts on both sides
>Examine and organize all records and documents
> Look at the physical premises
> Check relevant past practices
> Check previous grievance settlements for precedent and
guidance
> Check the experience of others in similar cases
