Enforcement Systems for Individual Employment Rights - Essay Example

Employment Law - Employment Contracts Employment law covers a certain nature and scope of the employment contract. The purpose of this paper is to;using case studies, explain the sources, institutions, and enforcements systems for individual employment rights. This will be accomplished through the use of case studies; the nature and scope of the contract will be discussed and the content and case study examples will explain the sources, institutions and enforcement systems for individual employment rights. The Sources, Institutions and Enforcement Systems for Individual Employee Rights Organized labor in the United States has fallen rather dramatically over the course of the past 25 years, especially in the United States because of outsourcing and the like. Even so, it remains to this very day quite a substantial financial and diplomatic foundation in the country. This rather surprising fact guides leaders in all types of organizations across the globe to believe that, rather than it being a mistake, that there are lessons to be learned from what has happened over the past two and a half decades, especially with regard to management types of issues (Harris, 2008). Over the course of the past 25 years, a lot of workforce issues have been revolutionized. Back in those rather unadorned times, "the law of labor and employment was a comparatively simple arena. The Fair Labor Standards Act required minimum wages and overtime and the Labor Management Relations Act protected employees' rights to form unions. OSHA was a three year old legal infant. The Civil Rights Act of 1964 was still a sleeping giant. State law was 'at will' and 'right to work'" (Harris, 2008, p.1). Furthermore, "The economy was fueled by the heavily unionized 'smoke stack' industries of auto, steel, rubber and coal. Employee issues were often handled by payroll or 'personnel' clerks. Formal training in the field was concentrated in 'industrial relations,' i.e., dealing with unions, rather than 'human resources management'" (Harris, 2008, p.1). Although some of the aforementioned policies and rules changed and some did not, it is relevant to point out the area that changed the most. "The most visible changes came with increased legislation granting individual employee rights. Unions are not needed to enforce OSHA, COBRA, ERISA, the Immigration Reform and Control Act, WARN, the ADEA, the ADA, the Employee Polygraph Protection Act, and most recently, the FMLA. Even that old sleeping giant, the Civil Rights Act of 1964, was roused by its 1991 amendments" (Harris, 2008, p.1). At the state level of sources, institutions, and most of all enforcements, individual employee rights take the form of 'wrongful discharge" and other solutions such as common law torts. These solutions have matured significantly over the past 25 years. Other developments in the area of individual employee rights at the state level include complexity of the court system, erudition of government agencies, and superiority of special interest groups. Furthermore, refinement has occurred among lawyers and in human resources (Harris, 2008). Now, employees can do things on their own that they could not do without support from organized groups in the past. They can still seek support from these groups, but are not obligated to (Harris, 2008). "As the law of individual rights grew, former personnel managers became trained in behavioral motivation, training, career development, counseling, appropriate discipline, fair policies, good communication and, most importantly, participatory management. Risk management and human resources development merged to afford better workplaces and an environment which made unions less and less appealing to employees. Old labor lawyers turned their experience in campaigning against unions to assist human resource managers cope with all the necessary changes. We became human resource counselors as well as union battle horses" (Harris, 2008, p.1). Changes that occurred in the economy were concurrent with the changes that occurred in individual employee rights. This is extremely significant since the whole process brought on new technology, updated businesses, and worldwide competition. It also practically did away with strikes because workers had more choices; strikes were useless for this cause anyway because they threatened job security instead of enhancing it as striking workers believed it would do (Harris, 2008). Finally, human resources management converted into what it is today, turning labor unions into organizations that were no longer able to help employees with their problems or concerns-at least not to the extent that they used to be. Now, they function more as entities to help employees keep their jobs rather than as entities to help workers find or enhance employment (Harris, 2008). Case Study "Twenty-five years later, we labor lawyers have truly become employment lawyers in the broader sense. We have always been advocates of employee rights and employer responsibilities. The hobgoblin of organized labor is only one reason to be motivated, vigilant and careful. Our job will continue as long as management seeks assistance in that most devilish of tasks, i.e., understanding and managing our most vital asset, our human resources. It is our people who made the American economy great. It is our labor unions which soil their own nest. Until unions realize and stop their own self-destructive behavior, we must continue to recognize that no business can truly prosper with an internal adversary embedded by law and contract in the very bosom of our economy." This, however, should be left up to and enforced by state and federal law (Harris, 2008, p.1). The Sources of Employment Law This particular query is by no means an easy question to answer because of its complexity. The best bet for a person to do is consult a lawyer. That said, the federal and state constitution, the federal and state statutes, the federal and state administrative regulations, federal and state administrative agencies, and the state are all sources of employment law. (Runkel, 2005) With regard to the federal constitution, this particular comment is definitely referring to a number of things in one. "Usually only as to state public sector or federal employees and employers" (Runkel, 2005). With regard to the state constitution, it is "usually only as to state and local government employees and employers" (Runkel, 2005). This category also includes "federal statutes such as Title VII, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA), and so on" (Runkel, 2005). "State statutes are similar to the federal statutes. These statutes vary from one state to another. Often state statutes are more favorable to employees than the federal statutes by applying to a greater number of employers, by provide more employee rights, and by providing more generous remedies; federal administrative regulations or rules adopted by the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL), and other agencies; state administrative regulations or rules adopted by similar state agencies; case-by-case decisions by federal and state administrative agencies; state common law (judge made law), especially dealing with contract law and tort law" (Runkel, 2005). Also included in this particular group are "federal court decisions; state court decisions; contracts between employers and employees; and collective bargaining agreements between unions and employers" (Runkel, 2005). An Evaluation of the Institutions and Enforcement Systems for Individual Employee Rights Although there are systems in place, they seem to be rather shaky, non-consistent and, in some cases, flat out unfair to one or more of the parties that are involved in the case. There are people who undergo wrongdoing and never get justice for it, while there are others who never really deserved compensation of any type in the first place that are greatly rewarded. It is time for this system to be reconsidered in order to meet today's day and age. It has simply been too long. Examining the nature and Scope of the Employment Relationship in its legal and Business Context The employment relationship can be defined as, "a legal notion widely used in countries around the world to refer to the relationship between a person called an 'employee' (frequently referred to as "a worker") and an "employer", for whom the employee performs work under certain conditions in return for remuneration. It is through the employment relationship, however defined, that reciprocal rights and obligations are created between the employee and the employer" (Cornell, 2006). Workers gain benefits and other rights through the employment relationship. Social security and labor law are the main source of these benefits and rights (Cornell, 2006). Certain questions must be answered when it comes to the protection of workers under the typical type of employment relationship that occurs within an organization. These questions comprise a vast array of issues, which means they comprise a variety of answers.. Each of these subjects must be covered in detail by both the employer and the employee, not just on a personal level, but also based on labor market fluctuations and changes in work organization. They include items such as when an employment relationship exists, what does it mean for this type of relationship to be indistinct, when and what is an employment relationship considered to be disguised, what is a triangular employment relationship, and the distinction and definition of an employee and an employer. It is best if this agreement is written down to avoid future conflict (Cornell, 2006). Differentiation Between Employees and Independent Contractors There are four different types of workers: independent contractors, statutory employees, and nonstatutory employees. This is part of the business relationship, and it is important to know before any business transactions take place. For the purpose of this paper, independent contractors and employees will be discussed instead of all four types (Internal Revenue Service, 2008). "Generally, you must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to withhold or pay any taxes on payments to independent contractors. A general rule is that you, the payer, have the right to control or direct only the result of the work done by an independent contractor, and not the means and methods of accomplishing the result" (Internal Revenue Service, 2008). A general rule for an employee is "that anyone who performs services for you is your employee if you can control what will be done and how it will be done" (Internal Revenue Service, 2008) Case Studies Vera Elm is an electrician who contracted to be paid $16 per hour for 400 hours. This means she will get $1,280 every two weeks when the calculations are done. Regardless of the amount of hours it takes her to complete, she'll still receive the same payment, which makes her an independent contractor (Internal Revenue Service, 2008). In contrast, Donna works for a restaurant and has a set schedule and duties to perform each time she comes in and they rarely vary each visit. She is paid hourly at a certain rate. She receives benefits. She is an employee (Internal Revenue Service, 2008) The Nature and Scope of Employment Contracts "An employment contract is an agreement entered into between an employer and employee at the commencement of the period of employment and stating the exact nature of their business relationship, and specifically what compensation the employee will receive in exchange for specific work performed (Wikipedia, 2008). It is often written up and given to the employee on the first day of work. The nature and scope of an employment contract varies for the type of work performed. Typically, they cover the terms and conditions of employment, such as the following: wages, salary, commissions or other benefits; notice periods required; holiday pay; work location; pensions; fringe benefits (such as retirement plans, stock options, holidays, required work hours, and health insurance); termination (either party); garden leave; non-disclosure agreements; and non-complete agreements (Wikipedia, 2008). "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" (Wikipedia, 2008). The Effects of European Union Legislation on Employment Relationships The Law of the European Union is the unique legal system which operates alongside the laws of Member States of the European Union (EU). EU law has direct effect within the legal systems of its Member States, and overrides national law in many areas, especially in terms of economic and social policy. The EU is not a federal government, nor is it an intergovernmental organization. It constitutes a new legal order in international law for the mutual social and economic benefit of the Member States. It is sometimes classified as supranational law" (Wikipedia, 2008). The treaties are said to have a horizontal direct effect, which means, "private citizens can rely on the rights granted to them (and the duties created for them) against one another. Directives have a "direct effect, but only "vertically". Private citizens may not sue one another on the basis of an EU directive, since these are addressed to the Member States. Directives allow some choice for Member States in the way they translate (or 'transpose') a directive into national law - usually this is done by passing one or more legislative acts" (Wikipedia, 2008). Comparison and Contrast of Reason and Methods of Terminating the Relationship Employment can terminate for either negative or positive reasons. The following are positive reasons: obtaining a new job, resigning, retiring. The following are negative reasons: layoffs, firing, termination, or downsizing. References Employment contract. (2008). Wikipedia. Retrieved February 24, 2008, from http://en.wikipedia.org/wiki/Employment_contract The employment relationship. (2006). Cornell University. Retrieved February 24, 2008, from http://ilo.law.cornell.edu/public/english/dialogue/ifpdial/ll/er_about.htm Harris, B.E. (2008). Individual employee rights. Wood Rogers PLC. Retrieved February 24, 2008, from http://209.85.165.104/searchq=cache:mNnRl8abOMoJ:library.findlaw.com/1999/Jan/1/130503.html+%22individual+employee+rights%22&hl=en&ct=clnk&cd=6&gl=us Independent contractors vs. employees. (2008). Internal Revenue Service. Retrieved February 24, 2008, from http://www.irs.gov/businesses/small/article/0,,id=99921,00.html Law of the European Union. (2008). Wikipedia. Retrieved February 24, 2008, from http://en.wikipedia.org/wiki/Law_of_the_European_Union Runkel, R. (2005). Sources of employment. LawMemo. Retrieved February 24, 2008, from http://www.lawmemo.com/101/2005/11/sources_of_empl.html When employment ends: Layoffs, job termination, firing, resignations. (2008). About.com. Retrieved February 24, 2008, from http://humanresources.about.com/od/whenemploymentends/When_Employment_Ends_Layoffs_Job_Termination_Firing_Resignations.htm Read More