Question 1:

You have studied a wide range of employment and labor laws. It is a fitting time to consider what these laws mean for employers, employees, unions, and the public. As you reflect on what we have studied, think about which of these laws:

A. Unduly interfere with the ability of an employer to operate successfully;

B. Strike an appropriate balance of interests among the stakeholders (employer, employee, union, public, etc.); and

C. Encourage an employer to adopt sound practices which, apart from compliance with legal requirements, also promote its own interests.

In an essay of at least 500 words identify and discuss at least 6 different areas of the law that fit into the above categories. Which fit in category A and why; which fall into category B and why; and which fall into category C and why. As each law that you discuss, explain in detail why you classify them as you do and discuss with them with specificity.

Additionally, with regard to laws that you believe unduly interfere with business operations, fall short of their intended goal or otherwise have negative consequences, explain in detail how you would change them.

Your essay should draw from the wide spectrum of the laws that we have studied. While we have spent considerable time on the NLRA, your essay should venture well beyond the NLRA.

Your essay should not be generic or merely state opinions. Rather, it should demonstrate your mastery of the course material and your ability to engage in critical thinking. Your statements should be supported with specific references to the laws that you select and/or related statutes and cases, etc., and explain how that material supports what you say. Be specific.

Question 2:

Please address the following in an essay of at least 500 words that discusses at least six examples of different laws/topics from this class.

In considering whether employment and labor laws produce desirable outcomes for employees, one important dimension to weigh is that of employee "voice." By that we refer to the extent to which employment or labor laws require employers to respect, respond to, or at least refrain from interfering with employee "say" and/or influence over the broad range of workplace matters of interest to employees. By "voice," we might also include the related issue of whether the law allows employers to compel employees to speak on some subjects.

Drawing from the wide range of employment and labor laws, discuss and explain in detail the extent to which employment and labor law appropriately handle the issue of employee voice.

You may choose examples that involve collective and/or individual behavior or some combination of the two. You are encouraged to pick examples of your own, but here are some starting points: the NLRA's treatment of employee participation programs; the definition of "mandatory" and "permissive" subjects of collective bargaining; whether and how safety law enables employees to oppose workplace hazards; the role of the First and Fifth Amendments in public employment (e.g., Garrity); the employer's right to question employees and demand their "speech" in a variety of settings; whether privacy or other law enables employees to use employer-provided resources or property for purposes of expression/communication; employee use of social media outside of the workplace, etc.

Your essay should not be generic or merely state opinions. Rather, it should demonstrate your mastery of the course material and your ability to engage in critical thinking. Your statements should be supported with specific references to the laws that you select and/or related statutes and cases, etc., and explain how that material supports what you say. Be specific.

Question 3:

You have just been hired as the Director of Employment and Labor Relations of World Energy Productions. As you settle to your first day of work, you discover that your new employer has embarked a flurry of recent activity.

Identify and discuss in detail the labor and employment-related legal issues raised by the following factual scenario, describing the applicable law and the advice that you would give to WEP. Please address them in the order in which they appear in the scenario.

Be sure to provide identifying information for the statutes, cases, and legal principles that you reference.

Scenario:

World Energy Productions (WEP) is, among other things, a state and federal contractor doing business in thirty states, including Maryland and Arizona. It also has operations in Mexico and Canada. Your HR colleagues tell you that WEP recently directed them to start using the internet as a recruiting tool and to "Google" all job applicants to see what the internet reveals about them. In the absence of any guidelines about how to go about this, some HR representatives are making "notes to file" about anything that catches their eye so they can refer to it later. You've also heard that job applicants in the U.S. are being told that in order to be considered for employment, they must produce a U.S. Passport, valid state drivers' license, and social security card, all of which are copied and scanned into the application files. While all applicants fill out I-9 forms, WEP has never used E-Verify.

Last week WEP instructed its HR representatives to ask all job applicants to provide passwords to the social media sites that they use and as well as permission to access those sites as part of the screening process.

Now WEP has decided to take that policy one step further. It has mandated that all current employees provide WEP with all of their social media passwords as well as permission to access those sites. That way, WEP will be able to keep track of what employees are saying about the company, its employment policies, internal operations, supervisors, managers, customers or products on company's and the employees' personal devices during working or non-working hours.

To nip this issue in the bud, WEP has asked your department to craft and distribute a written policy prohibiting employees from making any negative comments about the company, its employment policies, internal operations, supervisors, managers, customers or products on social media, elsewhere on the internet, in internal WEP email, in their personal email, in writing or to any third parties in any manner.

WEP also wants to you to come up with policies that will discourage any efforts to unionize the organization, including strict rules against employees revealing their salaries to one another or to third parties and against the use of WEP's email system for union solicitation and organizing.

On a more positive note, WEP wants to offer bonuses to employees who, without revealing the fact of their employment with WEP, to laud WEP's products in their personal blogs and in social media.

With respect to former employees, the company has directed its IT department to (1) aggressively search the computers and all other equipment and devices used by those former employees for passwords to non-WEP personal e-mail accounts and (2) if any passwords are located, access and read all of the e-mail sent and received by those e-mail accounts to determine whether former employees are soliciting WEP customers or trying to compete with WEP.

WEP tells you that it previously assured employees of privacy with respect to company-provided computers and devices with respect to accessing their personal e-mail accounts and social media sites. But, because it did not explicitly state that privacy would apply post-separation, WEP is confident that it has the right to engage in this "search and review."

Last week, a former employee filed suit, asserting that this "search and review" policy violated state and federal law. The same employee has also filed a charge with the EEOC, claiming that she was fired because of her national origin. WEP wants to get both the litigation and the EEOC charge enjoined based on the company's ADR policy, which was imposed on all current and former employees yesterday. Under the terms of that policy, (1) all claims are subject to the company's new grievance and arbitration procedure, which culminates in a hearing before a retired judge selected by WEP; (2) prohibits any and all claims from being filed with any other entity, including all administrative agencies and courts; and (3) limits relief to back pay. In addition, the new ADR policy prohibits employees from bringing any "class action" style grievances or cases, regardless of the nature of the claim.

WEP has made it clear that it wants to summarily discharge any employee suspected of violating its new (and planned) policies and has asked your department to vigorously oppose the payment of unemployment benefits to employees terminated for any policy violation.
Finally, WEP wants to know if any of its recent or intended actions could trigger any NAFTA proceedings and if so, what that would entail.