Ch9. US Labor Law Exam — Common Mistakes and Key Traps

FLSA Common Mistakes

① Advance notice of termination = no federal requirement under FLSA
   → WARN Act: 60 days notice for mass layoffs (100+ employees)
   → At-will employment: either party may end the relationship at any time

② Wrongful termination claim = varies by state; Title VII claims must be
   filed with EEOC within 180 days (300 days in states with a fair
   employment agency)

③ Overtime limit = no weekly cap on hours under federal law
   → FLSA requires overtime pay (1.5×) for non-exempt employees
     working more than 40 hours/week — parties cannot waive this

④ Regular rate of pay ≠ average earnings
   → Regular rate = base pay + non-discretionary bonuses (overtime basis)
   → Average earnings = used for some state workers' comp calculations

⑤ Termination notice = no federal written-notice mandate
   → Best practice and many state laws require written separation notice
   → Verbal-only notices may expose employer to dispute risk

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NLRA Common Mistakes

⑥ Collective bargaining agreement (CBA) duration = negotiated by parties
   → No statutory maximum; typical CBAs run 1–3 years

⑦ Strike notice = 60 days before contract termination (8(d) notice)
   → Healthcare facilities: 10 days before strike action

⑧ Unfair labor practice (ULP) charge = must be filed within 6 months
   → Wrongful termination EEOC charges = 180/300 days (different clock)

⑨ Lockout = permissible as defensive economic measure after impasse
   → Pre-impasse offensive lockout = generally unlawful

⑩ Refusal to bargain = ULP under NLRA Section 8(a)(5)
    → Employer may refuse to bargain over permissive subjects (e.g.,
      prices to customers, internal management decisions)

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Social Insurance / Workers’ Comp Common Mistakes

⑪ Workers' comp = employer pays premiums; employees do not contribute
⑫ Unemployment insurance = employer-funded (federal FUTA + state)
⑬ Unemployment benefits = must have sufficient base-period wages and be
   separated through no fault of own (involuntary)
⑭ Commuting injuries = generally NOT covered by workers' comp
   (coming-and-going rule); exceptions: employer-provided transport,
   special errands
⑮ Temporary disability (TD) = typically 60–70% of average weekly wage
   (varies by state; not 100%)

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Confusion Points Compared

Wrongful Termination vs. Unfair Labor Practice (ULP):
Wrongful termination: no just cause for dismissal; Title VII, ADA, ADEA
ULP: retaliation/interference with Section 7 protected concerted activity
Different agencies: EEOC (discrimination) vs. NLRB (labor relations)

Regular Rate vs. Average Earnings:
Regular rate = FLSA overtime calculation base (fixed + non-discretionary)
Average earnings = workers' comp and some benefits calculations

Strike vs. Lockout:
Strike = employees' concerted work stoppage; can occur proactively
Lockout = employer action; must follow impasse or contract expiration rules

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Key Concept Cards

Small Employer Exemptions ★★★★★ : FLSA applies to enterprises with $500K+ annual revenue or engaged in interstate commerce. Title VII applies to employers with 15+ employees. ADA: 15+. ADEA: 20+. FMLA: 50+. Memory tip: FLSA = all; Title VII/ADA = 15+; ADEA = 20+; FMLA = 50+

Workers’ Comp = Employer-Funded ★★★★★ : Among major insurance programs, workers’ comp premiums are paid entirely by the employer — employees contribute nothing. Memory tip: workers’ comp = employer 100%

Written Separation Documentation ★★★★☆ : While not universally required by federal law, written termination notices protect employers from unemployment and discrimination claims. Memory tip: termination = document everything

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Practice Quiz

Q. How do FLSA coverage thresholds differ from Title VII and FMLA?

FLSA covers virtually all employers in interstate commerce regardless of size. Title VII and ADA: 15+ employees. ADEA: 20+. FMLA: 50+ employees within 75 miles. State laws often have lower thresholds. Exam tip: company size triggers are a frequent trap question.

Q. Why might both an employment attorney and an HR professional be involved in a labor dispute?

Employment attorneys: litigate in federal/state courts, file EEOC charges, handle arbitration. HR professionals: internal investigations, NLRB filings, workplace policy. EEOC/NLRB administrative proceedings → federal court appeals create a natural handoff. In practice: HR leads internal phase, attorney leads litigation.