Which of the following are true of the legal regulations on u.s. labor relations processes?

1. Terms and Conditions of Employment

1.1        What are the main sources of employment law?

There are federal, state, and local employment laws.  The primary federal employment laws are: Title VII (of the Civil Rights Act); the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Equal Pay Act; the Fair Labor Standards Act; the Family and Medical Leave Act; the Immigration Reform and Control Act; the National Labor Relations Act; the Occupational Safety and Health Act, the Pregnancy Discrimination Act (PDA); the Uniformed Services Employment and Reemployment Rights Act; and Executive Order 11246 for government contractors.  Many states have laws that mirror the Federal Laws.  State common law is also a significant driver of non-statutory employment law issues, such as employment-at-will and restrictive covenants.

1.2        What types of worker are protected by employment law? How are different types of worker distinguished?

Workers are generally protected against discrimination under federal law on the basis of race, colour, religion sex, sexual orientation, pregnancy, national origin, age, disability, genetic information, retaliation, union activity and more recently, gender identity.  Employees are distinguished by categories such as at-will-employment, employment under a union collective bargaining contract, hourly worker or salaried worker.

1.3        Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

Written contracts of employment are not required.  Employers are required by law to give certain information, such as worker’s rights and benefit information.

1.4        Are any terms implied into contracts of employment?

Generally, a duty of good faith and fair dealing is implied.

1.5        Are any minimum employment terms and conditions set down by law that employers have to observe?

Minimum wage and overtime pay are required and state and local laws also have other mandatory requirements, such as mandatory breaks, payment of accrued benefits, and final pay.  Additionally, many employers are required to give job-protected family leave.

1.6        To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?

Collective bargaining determines unionised employers’ terms and conditions of employment.  Bargaining often takes place at company level, but may be industry-wide in certain circumstances, for example, when an industry has a multi-employer association that deals with unions.

2. Employee Representation and Industrial Relations

2.1        What are the rules relating to trade union recognition?

The National Labor Relations Act (NLRA) governs union recognition and provides for union recognition when a majority of employees vote for a union in a secret ballot election or when an employer recognises a union based on a majority of employees having signed authorisation cards.

2.2        What rights do trade unions have?

Unions have rights under the NLRA to organise and represent employees from unfair labour practices as well as to take industrial action (strike) under certain circumstances.

2.3        Are there any rules governing a trade union’s right to take industrial action?

The NLRA, as interpreted by the National Labor Relations Board and federal courts, governs unions right to strike as do collective bargaining agreements.

2.4        Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?

There are no “work councils” in the U.S.

2.5        In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?

This is not applicable to the U.S.

2.6        How do the rights of trade unions and works councils interact?

This is not applicable in the U.S.

2.7        Are employees entitled to representation at board level?

Employers are not entitled to representation at board level.

3. Discrimination

3.1        Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?

Employers are protected against discrimination on the basis set forth in question 1.2 above.

3.2        What types of discrimination are unlawful and in what circumstances?

Discrimination on the bases set forth in question 1.2 above means that an action or practice was due to one of the protected classifications.  In addition, employees are protected from sexual harassment.

3.3        Are there any special rules relating to sexual harassment (such as mandatory training requirements)?

There is no specific federal law requiring mandatory training or specific other responses to the possibility of sexual harassment; many states and localities have specific standards, including required anti-harassment training.  The Equal Employment Opportunity Commission (EEOC) has issued guidelines providing that employers must provide harassment prevention training to all employees to ensure they understand their rights and responsibilities.  Federal courts have ruled that employers need to show evidence of anti-harassment training to avoid punitive damages or to raise certain affirmative defences.

In some local jurisdictions like New York, new rules have limited the scope of confidentiality or non-disclosure clauses in settlement agreements relating to sexual harassment claims, voiding any provision that prevents disclosure of the underlying facts of the complainant’s sexual harassment claim.

In addition, certain states, as follows, have mandatory sexual harassment training: California, Connecticut; Delaware; Illinois; Maine; and New York.  Certain cities, for example, New York City, also require sexual harassment training.

Finally, under federal law, employers may not claim tax deductions for any settlement or payment, or related attorney’s fees, related to sexual harassment if such settlement is subject to a non-disclosure agreement.

3.4        Are there any defences to a discrimination claim?

Yes.  If an employer can establish that the action in question was based on a legitimate, non-discriminatory reason, the employer will not be found liable for discrimination.  There is also a general bona fide occupational qualification defence.  Further defences apply to specific discrimination claims, for example, the defence that the employer exercised reasonable care to promptly prevent and correct harassing behaviour and the employee failed to take advantage of corrective opportunities related to claims of harassment.  Some states and localities provide additional affirmative defences.

3.5        How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?

Employees can file a discrimination charge with the EEOC or a state or local agency.  An employee can also sue in state or federal courts.  Employers may settle claims before or after they are initiated.

3.6        What remedies are available to employees in successful discrimination claims?

Remedies include an injunction, compensatory damages (back and front pay), liquidated damages, punitive damages, court costs, and attorneys’ fees.  In some cases, attorneys’ fees are statutorily mandated to be paid by the employer.

3.7        Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?

No, temporary workers have generally the same protections as permanent workers.

3.8        Are there any specific rules or requirements in relation to whistleblowing/employees who raise concerns about corporate malpractice?

Both federal and state laws specifically protect whistle-blowers against employer retaliation for their whistleblowing activities and allow for whistleblowing lawsuits.

4. Maternity and Family Leave Rights

4.1        How long does maternity leave last?

Under the Family and Medical Leave Act (FMLA), eligible employees are provided with up to 12 weeks of unpaid, job-protected leave per year.  The FMLA requires the employee’s health benefits be maintained.  Some state and localities have expanded employee rights.  For example, in 2021, New York’s phased-in Paid Family Leave reached its maximum benefits with 12 weeks of leave paid at 67% of the employee’s average weekly wages, up to a cap.

4.2        What rights, including rights to pay and benefits, does a woman have during maternity leave?

Please see question 4.1 above.

4.3        What rights does a woman have upon her return to work from maternity leave?

The employer must reinstate the employee to the same or equivalent position.  Employers are prohibited from retaliating against employees for requesting FMLA leave, exercising their FMLA rights, or interfering with the rights afforded by the FMLA.

4.4        Do fathers have the right to take paternity leave?

The FMLA is a gender-neutral statute that allows for father and mother to request and take leave.  Fathers are afforded the same rights as the mother under the FMLA.

4.5        Are there any other parental leave rights that employers have to observe?

Under the FMLA, eligible employees may take up to 12 weeks of leave for the care of an adopted or foster child within one year of placement, for the care of an employee’s spouse, child, or parent with a serious health condition, or to recover from a serious health condition that prohibits an employee from performing essential job duties.  Eligible employees may also take leave for any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member on a covered active duty.

4.6        Are employees entitled to work flexibly if they have responsibility for caring for dependants?

Yes.  Flexible work or leave beyond FMLA is available to employees unless there would be an undue hardship on the business.

5. Business Sales

5.1        On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer?

Employers do not automatically transfer to a buyer, but this is the case in a share sale because the employing entity remains the same.  Collective bargaining agreements may have provision pertaining to a business sale.

5.2        What employee rights transfer on a business sale? How does a business sale affect collective agreements?

In a stock sale, employee terms and conditions remain the same.  In an asset sale, the buyer can set new terms and conditions.  However, a legal “successor” employer will have to bargain with a union about initial terms and conditions of employment.

5.3        Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult?

There are no consultation rights except a unionised employer will have to consult (bargain) with the union.  There may be informational rights under the WARN Act or a state equivalent if the sale results in a mass layoff or shutdown of an employment site.

5.4        Can employees be dismissed in connection with a business sale?

In an asset sale, the buyer does not need to hire the seller’s employees but collective bargaining agreements may have certain protections.  In a stock sale, the employing entity remains the same so the employees are not dismissed.

5.5        Are employers free to change terms and conditions of employment in connection with a business sale?

See the answer to question 5.2 above.

6. Termination of Employment

6.1        Do employees have to be given notice of termination of their employment? How is the notice period determined?

At-will employees do not have to be given notice of termination, nor do unionised employees unless a contract or collective bargaining agreement provides otherwise.  If there is an employment site shutdown or mass layoff, employees must be given 60 days’ notice under the WARN Act.

6.2        Can employers require employees to serve a period of “garden leave” during their notice period when the employee remains employed but does not have to attend for work?

“Garden leave” is not common in the U.S.

6.3        What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?

Employment is at-will unless an employment or collective bargaining agreement protects against dismissal under certain circumstances.  All employees are protected against dismissal due to unlawful discrimination or protected activity, such as union activity or whistleblowing.  An employee is dismissed when employment is terminated or there is a constructive termination (inability to continue working due to a hostile work environment).  An employment agreement may have provisions for employee termination for good reason.  Consent from a third party is not required before an employer can dismiss.

6.4        Are there any categories of employees who enjoy special protection against dismissal?

Employees in protected classes may not be dismissed because of their classification.  Employment and collective bargaining agreements may have provisions protecting against improper dismissal.

6.5        When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so, how is compensation calculated?

An employer can dismiss an employee for individual or business reasons, as long as those reasons do not violate federal, state or local laws, and/or no agreement to the contrary exists.

Upon dismissal, employees are entitled to receive their final pay and accrued benefits.  If the dismissal is proper, a dismissed employee is eligible for federal COBRA or state equivalent of continuation of healthcare benefits with the employee paying the employer’s group rate.  If the dismissal is not for misconduct, an employee is eligible for unemployment insurance benefits.

6.6        Are there any specific procedures that an employer has to follow in relation to individual dismissals?

There are no specific provisions unless an employment or collective bargaining agreement contains them.

6.7        What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?

Claims can be brought before an administrative agency, a court or an arbitrator if pursuant to an employment or collective bargaining agreement for unlawful dismissal with the potential remedies mentioned above.

6.8        Can employers settle claims before or after they are initiated?

Employees can settle claims before or after they are initiated.

6.9        Does an employer have any additional obligations if it is dismissing a number of employees at the same time?

An employer has an obligation under the WARN Act (60 days’ notice) if there is a mass layoff or employment site shutdown.  Collective bargaining agreements may provide for additional obligations.

6.10      How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations?

The WARN Act, and equivalent state laws, are enforced by the courts.  Employees may bring either an individual or class action civil lawsuit.  Employers who violate the WARN provision by closing an employment site or ordering mass layoffs without providing adequate notice are liable for back pay and benefits to each aggrieved employee.  Employers who fail to provide the required notice to the local government are subject to civil penalties.

To enforce other employment law violations, employees may file either an individual or class action claim with the appropriate court and/or employment agency.  Consequences depend on the violations.

7. Protecting Business Interests Following Termination

7.1        What types of restrictive covenants are recognised?

The enforceability of restrictive covenants is determined by state law and varies depending on the jurisdiction.  Types of restrictive covenants include non-competition agreements, non-solicitation of customers, non-solicitation of employees, and confidentiality agreements.  There is a continuing trend of limiting the enforceability non-competition agreements, particularly for lower-income workers.

7.2        When are restrictive covenants enforceable and for what period?

The Justice Department has been attacking some restrictions on trade.  In July of 2021, President Joe Biden signed an Executive Order tasking the Federal Trade Commission with curtailing the use of non-compete agreements that limit worker mobility.  State laws vary as to the enforcement ability of restrictive covenants.  Courts will assess whether restrictive covenants serve a legitimate business purpose and are reasonable in scope, time and geographic reach.  There is no uniform period for which restrictive covenants are enforceable, but the shorter they are, the more likely they will be enforced.  Courts may “blue pencil” restrictive covenants, meaning instead of entirely striking down ones that are too long in time or scope, courts may cut down the time period and/or narrow the scope.

7.3        Do employees have to be provided with financial compensation in return for covenants?

Covenants may be supported by consideration, which may be financial or a promotion or, in some jurisdictions, the continuation of employment.

7.4        How are restrictive covenants enforced?

Restrictive covenants are enforced by lawsuits and as to the financial industry, FINRA.

8. Data Protection and Employee Privacy

8.1        How do employee data protection rights affect the employment relationship? Can an employer transfer employee data freely to other countries?

In the U.S., there are federal and state laws and regulations that regulate the collection, use, and transfer of personal data of employees, as well as independent contractors and non-employees.  The primary federal laws that govern data protection are: the Fair Credit Reporting Act (FCRA), which applies to those who obtain consumer reports; the Federal Trade Commission Act (FTCA), which prohibits unfair or deceptive practices; the Genetic Information Non-Discrimination Act (GINA), which applies to genetic information; and the Health Insurance Portability and Accountability Act (HIPPA), which regulates medical and health information.  Most states have enacted some of privacy legislation, most of which require notification of security breaches involving personal information.  Subject to these laws, employers can transfer employee data to other countries.

8.2        Do employees have a right to obtain copies of any personal information that is held by their employer?

There are no federal laws requiring employers to provide employees access to their personal information; however, some states do have state laws.  State laws often address who can have access to the information, how often the information can be accessed, whether copies can be made, what records can be kept, and whether third-party disclosure is permitted.

8.3        Are employers entitled to carry out pre-employment checks on prospective employees (such as criminal record checks)?

Employers are permitted to conduct pre-employment checks.  Employers must comply with federal laws that protect applicants from unlawful discrimination and FCRA when compiling background information.  Many states have laws governing how employers can evaluate prospective employee information.  For example, New York prohibits employees from inquiring about a prospective employee’s criminal record until after a conditional offer of employment is made.

8.4        Are employers entitled to monitor an employee’s emails, telephone calls or use of an employer’s computer system?

An employer has the right to monitor its own property.  Employers are entitled to monitor computers, servers, and other electronic devices owned by the employer.  Under the Electronic Communications Privacy Act of 1986, employers are permitted to monitor employee communications if there is a legitimate business purpose or if the employee has consented.  States have also enacted regulations governing the monitoring of employee activity.

8.5        Can an employer control an employee’s use of social media in or outside the workplace?

Although an employer may limit an employee’s use of social media during working hours and the way in which it is used regarding the employer’s business, the employer’s control is limited by the NLRA and applicable state laws.  The NLRA protects employees’ rights to engage in “protected concerted activity”, which includes social media postings.  Some states have implemented laws limiting how an employer may control an employee’s use of social media.

9. Court Practice and Procedure

9.1        Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition?

Federal courts have jurisdiction to adjudicate employment-related cases arising out of federal employment law and employment cases where the parties are citizens of different states or a non-citizen.

State courts have broad jurisdiction and hear cases arising out of state or federal law claims.

Federal agencies such as the EEOC, DOL, and NLRB have jurisdiction over employment-related claims arising out of federal laws.

9.2        What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? Does an employee have to pay a fee to submit a claim?

The procedures depend on the forum in which the complaint is brought.  Some courts require mandatory conciliation.  Otherwise, it is voluntary.  The EEOC is required by federal statute to attempt to resolve findings of discrimination through conciliation.  If a civil lawsuit is filed, applicable fees will apply; however, there is no fee for filing a claim with an administrative agency.

9.3        How long do employment-related complaints typically take to be decided?

There is no uniform length of time.

9.4        Is it possible to appeal against a first instance decision and if so, how long do such appeals usually take?

Yes, decisions are appealable.  Typically, there must be a final ruling before a decision can be appealed, but interlocutory appeals are permitted in limited circumstances.  There is no uniform length of time to process an appeal.

10. Returning to the Workplace after COVID-19

10.1      Can employers require employees to be vaccinated against COVID-19 in order to access the workplace?

This is a hot topic in U.S. employment law.  Generally, a private employer can require vaccination.  However, employers cannot discriminate in their vaccination policies and they must make reasonable accommodations for employees who have a legitimate claim for an exemption from the vaccination requirement, including medical conditions and genuinely-held religious beliefs.

10.2      Can employers require employees to carry out COVID-19 testing or impose other requirements in order to access the workplace?

Yes, employers may ask employees who will be physically entering the workplace to take a COVID-19 test.  Employers can impose other requirements so long as they do not violate any federal or state anti-discrimination law.

10.3      Do employers need to change the terms and conditions of employment to adopt a “hybrid working” model where employees split their working time between home and the workplace?

No, there is no requirement to provide a hybrid working model.  However, if an employee requires a reasonable accommodation under the Americans with Disabilities Act, the employer is obligated to provide it.

10.4      Do employees have a right to work from home if this is possible even once workplaces re-open?

There is no blanket right to work from home.