This article provides a checklist for employment matters.

Make certain your employment agreements and any employee handbooks specify employment is “at will”. (1) ………………………………………………………………………….

Avoid non-competition clauses with employees (and with your customers) stating that your employees cannot compete with you or work for your competitors or customers after they leave your company. (2) ………………………………………………………………………………… Confidentiality agreements, on the other hand, are generally upheld.

If you use independent consultants, be sure you can justify your decision not to make them employees if the government enquires. (3) ……………………………………………………. Have a written agreement with each independent consultant stating that he\she is an independent consultant and is responsible for his\her own taxes etc.

Apply your company policies consistently to all employees. An employee handbook is advisable; this should make it clear what exact rules are and ensure consistency. (4) …………………………………... The handbook should state that it may be amended by the company at any time. Have each employee sign an acknowledgement of receipt of any employee handbook and any amendments to it. (5) ………………………………………………… if you do this, either have them sign it at the time they first start work or give them additional consideration (small amounts of stock or money) for signing. Where existing employees are not given additional compensation to sign, the agreement may not be enforceable.

Follow disciplinary procedures consistently with each employee. Before terminating any employee, give repeated oral and written warnings over time if at all possible. Write up your conversations and place them and the written warnings in the employee’s personal file.

Have a written policy prohibiting sexual harassment as well as discrimination concerning race, gender, age and, in California, sexual orientation. (6) ……………………………………………………………. Distribute all of these policies to your employees and have each employee sign an acknowledgement of receipt for them. Where an employee alleges harassment or discrimination, investigate and take appropriate disciplinary action if warranted. If you fail to adequately investigate, your company may be held liable for acts by its employees.

Have an express computer-use policy which states the following. Employees may not use the e-mail or on-line access for objectionable materials or messages of any kind. (7) ………………………………… All e-mails and materials sent or received with the company’s equipment may be subject to review by the company.

You must post all required federal and state employment notices. If you are in California, the California Chamber of Commerce has all the employment posters that must be posted, plus required Unemployment Insurance and State Disability Insurance pamphlets and required Sexual Harassment pamphlets.

A. Expressly give the employees several different people in the company to contact if they believe they have encountered prejudice in any of these areas.

B. In California, these restrictions on employees are generally invalid and can lead to lawsuits by employees alleging restraint of trade.

C. It is important to preserve these rights, because they protect you from having to prove there is a valid business-related reason to terminate an employee.

D. If you have one, follow its provisions and have it reviewed periodically for changes in the law and in business conditions.

E. Nor should they use it for any material protected by copyright law, trademark law, etc. without the permission of the owner.

F. Consider having employees enter a separate agreement to arbitrate (rather than litigate) all disputes regarding employment.

G. One rule of thumb: they must earn at least one-third of their income from sources other than your company or be incorporated.

H. If they fail to make this explicit, fired employees may file lawsuits on the basis that they were not fired for proper cause.

TAPESCRIPTS

UNIT I. EMPLOYMENT LAW.

Listening 1: BBC Learning English. Ask about English work and job.

Gareth Rees has a BA (hons) in History and Philosophy of Science, CTEFLA, and DELTA. He has taught EFL, EAP and Business English in China, Spain and England, and he is the co-author of the Language Leader Elementary and Pre-Intermediate English language course books (Pearson Longman). He currently teaches English in the Language Centre at the University of the Arts, London.

A question from Giuliana in Italy:

What is the difference between work and job? They both have the same meaning in Italian but I'd like to know better how to use them.

Gareth Rees answers:

Hello Giuliana.

Thank you for your question about the difference between work and job. Although this topic isn't necessarily most people's favourite subject, the difference between the two words is important.

Firstly, on a grammatical level, work is both a verb and a noun, whereas job is only a noun. Let's look at their meanings now.

Work is an activity in which you use effort or energy, normally to achieve a particular aim or task, rather than for fun or enjoyment. It is essentially the opposite of play, and to work means to do such an activity. Generally, we work in order to earn money, and this is often how we use the verb; to describe what we do to earn money. For example:

I work for the BBC. David works in a cafe.

In these examples, we do not know exactly what the person's duties or responsibilities are. David works in a cafe, but we do not know if he cleans the tables or cooks the food.

So, in this sense, work has a very general meaning, whereas job is much more specific, and its most common meaning is the name for the work that you do to earn money. For example,

David has now got a new job. He is a cook in a small restaurant.

In this example, we now know exactly what David does because we know what his job is. To summarise, we can say that the word job refers to a particular employment role or position, such as cook, teacher or banker, whereas work refers in a more general way to activities that you do.

Interestingly, all jobs involve work but doing work isn't always part of a job. For example, someone can spend the weekend working in their garden, perhaps cutting the grass or planting new flowers. However, this is a free time activity, and so it is not his or her job.

As a verb, work does have other meanings, such as, if you describe how a machine works, you explain how it functions, or operates. For example,

Can someone show me how the photocopier works? I don't know how to use it.

Similarly, you can use it to say if the machine is functioning correctly. For example,

Don't try to use that computer. It doesn't work. We are waiting for the engineer to fix it.

Finally, although your job is the name for what you do to earn money, it can also refer to a specific task that you have to do; a task that requires work and a task that you can specifically identify. For example,

I have a few jobs to do at home this weekend. I need to paint my bedroom, fix a broken door and cut the grass.

Right, well, I've been working hard for the last few hours, so I think, it's time for me to take a break. Fortunately, the work that I do in my job is very interesting, so even though it is hard work, I don't think I will look for another job! What about you, Giuliana? Are you a student or do you have a job? Whatever you do, is it hard work?

Listening 2. Different types of employment

Hi, my name is Mr. Hill. I'm here today to tell about types of employment. You know a person can have two types of employment: employee and self-employer. We have to distinguish between these two and the simple way to do it is doing the control test. The controlled test will determine the degree of authority you have upon your working time. Ask yourself - Am I the one who sets my working time? Do I choose when and where I will work? If the answer to these questions are – no, you are an employee and if the answers are – yes, you are self- employer. Another test capable to identify the differences is the economic reality test. Ask yourself the folowing questions: Do I have financial risks? Is your salary very according to the amount of job you do within a certain period of time? Can your salary be zero if business goes wrong? If the answer is – yes, you are a self-employer. Do you work using your own tools or someone else provides it to you? If someone else provides the tools you are an employee. The case of Walker vs. Crystal Palace football club judged in 1966 is an example of the control test. Judges decided that a professional footballer was an employee of his club on the basis that he was subject to control in a relation to his training. Discipline method of payment - the decision is very clear. Footballers have to follow to the letter instructions given by the coach. The case of Whittaker vs. Minister of Pensions and National Insurance 1966 is an example of the integration test. Judges decided that the trapeze artist was an employee of the circus because she was engaged not only with trapeze but with other general areas of the circus. The fact she has done more than a self-employed trapeze would do, indicated that she was an employee rather than a self-employed. The case of O’Kelly vs. Trusthouse Forte PLC judged in 1983 is a perfect example of temporary work. This case is about a wine waiter who was called a regular casual because he was given work when it was required. The waiter had no other employment. As he worked there for so long it was accepted by the management he would be often working in preference to others when work was available and he could accept it or not. Although he was provided with uniform and tools, his contract was clear that he would be offered to work when there was job available and it would be up to him to accept it or not. Judges decided that he was a self-employer because neither he nor the Trusthouse had mutuality obligation between them. To finalize let's take some of the advantages of being an employee rather than a self-employed person. The first one is statutory protection which protects employee against unfair dismissal and redundancy. The second one is if the financial risk where if business goes wrong and the employer goes bankrupt employees are the first one to receive any payment from the insolvent company. The employees are always preferential creditors. The third would be benefits. Employees are the only ones entitled to receive statutory sick payment. Our talk about types of employment finishes here after I have told you about the differences between employees and self-employer. I also told you about the tests which you can do to find out if you are an employee or self employer. The last topic was the advantages of being an employee. I hope you liked it.

Listening 3. Listen to the lecture on the contract of employment and answer the following questions.

Hello, I am mister Help from Evideo lesson dot com. Today we are here to talk about contract of employment and the consistence of it. Contract of employment consists of three terms: expressed terms, terms implied by the court and the terms implied by statute. Let’s start talking about the expressed terms. The first term is the expressed term which is the agreement between the employer and the employee. In other words, it is when you receive a job offer, it can be made oral or written, although the contract is valid as soon as both parties agree with it. The employer must provide to the employee her written contract within two months of the commencement of employment. Employment Rights Act 1996 requires that employer must include into the contract details like wages and when it is paid, your job title, your hours of work, place of work, length of notice, details of disciplinary or grievance procedures, date of your commencement of employment. If the employer wants to change the contract he needs to notify the employee by written statement within one month. The statement made by the employer will become a contract when the employee agrees with it. The second term is the implied term which states the duties of the employee, the duties of the employer. We talked about these duties in other videos so please visit Evideo lesson dot com to watch them. The third and last term is the terms implied by the statute. These are statutes which protect the employees and give them some rights. Let's talk about some of them. The Employment Rights Act 1996 gives the employees the right of not being unfairly dismissed, the right to receive damage ever made redundant and the right to a minimum period of notice to terminate the contract. The Working Time Regulations Act 1998 limits the hour of work to an average of 48 hours per week, gives the right to the employees to have 4 weeks paid leave and one day off per week. The Employment Act 2002 gives the right of paternity leave, adoption leave and also it gives the parents of children under 17 or disabled children under 18 the right to request flexible working hours. The Equal Pay Act 1970 gives the right of equal payment between employees of the opposite sex. The National Minimum Wage Act 1998 imposes minimum levels of wages. We finish here our explanation about the contract of employment and if you haven't watched the other videos about the duties of the employer and employee please visit our website or visit youtube channel to watch it.

Listening 4. Listen to the discussion on the duties of an employee and make a list of such duties.

-Hi, I am Mr. Randy. I am a member of Evideo lesson.

-Hi, I'm Vicky. I am also a member of Evideo lesson.

-We are here today to talk about the duties of the employee.

-Is this an area covered by an employment law which belongs to corporate and financial law?

-It is indeed. As you know not only employers have duties on the employment but also the employees as well.

-Employees as well. What do you mean?

-I mean that employees have a list of obligations which they have to fulfill apart from work everyday or to arrive on time.

-I didn't know about it. I watched your video on Evideo lesson dot com where you explained about the duties of the employer. So can I fire an employee?

-Yes, if your employee is not acting reasonably you can dismiss him.

-Can you tell me some of these duties?

-Surely I can. Let's start with the classic one - the duty to obey law firm unreasonably orders.

-Actually I read something about a gardener - he refused to plant some plants where instructed by the employer. His employer fired him. The guy I know wasn't happy at all and sued the employer. The judge stated that the employee was in breach of the duty of obedience, therefore could be dismissed without notice.

-I know this case. This is the case of Pepper versus Web judged in 1968. Another duty is the duty of mutual cooperation.

-Mutual cooperation? Can you explain this?

-Sure. Employees have to obey employers providing the orders don't breach the common law. They have also to act reasonably when working and must not act in a manner calculated to damage the mutual trust between employer and him.

-Now that you tell me these terms I remember the case. Secretary of State for Employment versus ASLEF judged in 1972. In this case railway workers followed the British railway rule book to the letter. They knew if they did it, it would cause delays in the train services. They were fired, not happy with their bosses; they sued them.The employees lost the case because they didn't act reasonably.

-This was a good example but it doesn't stop here. There are more duties like the duty to exercise reasonable care and skill.

-This I know. The employee must act with reasonable care in performing his duties. If he does a small mistake he will not be fired of course but if he does a gross negligence he can be dismissed.

-That is a famous case which is the case of Listra versus Romford Ice ltd judged in 1972. In this case the employee ran over another employee with a forklift.

-Really? What happened to him? I mean was he fired, arrested or wasn't?

-He was liable in damages to his employer for breach of contract. Other duty is the duty of good faith, which states that the employee cannot use the employer's property as his own. Sinclaire versus neighbor judged in 1967 is a famous case. The employee secretly borrowed from the shop some money. Although he gave the money back on the following day he was dismissed. He sued his boss but judge stated that he breached the duty of good faith.

-I have a question. Can employees delegate their responsibility on the job to others?

-No, unless they have the expressed or implied authorization of their bosses. If they do it so - they are breaching the duty to render personal service.

-I read that employees cannot have part-times with their employer’s rivals during their employment because they can disclose trade secrets.

-Well, we talked a lot about the employees today. You can now watch on Evideo lesson both cases: employee and employer and compare the duties of both. As long as employer and employee work reasonable and respect each other there will not be any problem.

Listening 5. Listen to the lecture on the duties of an employer towards an employee and make a list of such duties.

Hi friends, how are you? I'm from Elesson dot com and I'm here to tell you about the main duties of an employer towards an employee. The first one is the duty to pay a reasonable remuneration. The second is the duty to indemnify the employees, in other words to be liable for any reasonable act caused by the employee when he was doing his job. The third one is the duty to provide a safe system of work. Every employer in the UK has to make sure that the employees have a safe and clean environment to work. Therefore if you were working on a place where you think it is not safe - inform the respective authorities. Now I remember something important. If the employer has taken reasonable care of your working environment he will not be liable for any accident related to health and safety. Let’s talk about the fourth one - the duty to give reasonable notice of termination of employment. It usually doesn't happen, ‘cause the lengthes of notice are usually included on the contracts. The fifth one is the duty of mutual cooperation. The employer has a duty not to behave in a manner calculated to damage the relationship of trust and confidence between him and the employee. The sixth is the duty to provide work. If you, employee, work on the basis of piece work or commission, your employer has to provide you sufficient work to enable you to earn a reasonable salary. The seventh and the last one is the duty to provide a fair reference. The truth is your employer is not obligated to give any reference of employees but if he does it he has to give us a reference about you. So, on this video we learned that our employer’s duties are: pay our reasonable remuneration, indemnify the employee, provide a safe working environment, reasonable notice of termination of employment, neutral cooperation, provisional work and provisional reference.

Listening 6. Listen to the lecture on the types of dismissal and make a list of them with the explanation of the meaning of each. When isn’t a summary dismissal a wrongful one? What is constructive dismissal?

Hi, I am Mr. Brain the new member of Evideo lesson. How are you today? In our videos on employment law Mr. Help covered so far the following areas: types of the employment, contract of employment, duties of the employer and duties of the employees. Today we will talk about wrongful and unfair dismissal. Let’s start there. So, what would be a wrongful dismissal? A wrongful dismissal is when an employer terminates the contract of employment without giving proper notice or during its fixed term. You may be asking – what if the employer dismissed the employee without any notice? When the employer dismisses an employee without giving any notice – it is known as summary dismissal. Summary dismissal is usually a wrongful dismissal. A summary dismissal won’t be a wrongful dismissal when the employee waves his rights except payment to leave the job earlier or breaches the rules of the contract but in a serious way. Now let’s talk about an unfair dismissal. Unfair dismissal occurs when an employer terminates the contract of employment without a justifiable reason. This is a statutory right under the Employment Rights Act 1996 there are three types of dismissal, they are known as contract terminated by the employer or without the notice, fixed term contract expired and not renewed by the employer and the constructive dismissal. You may be asking yourself - where there is a constructive dismissal? Better then I will tell you what it is, I will tell you about the case of Donovan vs. Invicta Airways judgment 1970. It was about airline pilot who was put pressure to take abnormal risks three times in a short period of time. He refused doing it causing problems between him and the management. The situation of his job was unbearable after that, so he quitted his job. The pilot sued his company for wrongful dismissal and he won the case. Now imagine he was almost forced to quit his job and it is what the constructive dismissal is. I already told you what wrongful and unfair dismissals are but now I will tell you when it would be fair to dismiss an employee. You wouldn’t have problems if you dismiss an employee which lost his capabilities or qualifications to do the job. Let me give you an example. Imagine, if a bus driver loses his driving lisence, he surely can’t do what he has been paid for. It wouldn’t be a problem to fire someone who had a bad conduct towards his job, and example of bad conduct would be an employee stealing money from the cashier. It wouldn’t be a problem if the continuation of the contract would contravene the statute. That is easy to explain. Imagine you hire a foreigner, then a month later he loses his visa – you can fire him as he is not entitled to work in your country. In this video we talked about wrongful and unfair dismissal. I hope this check made the difference between these two types of dismissal clear to you. In the next video we will talk about redundancy, retirement and remedies for wrongful and unfair dismissal. Thank you for the support.

Listening 7. Listen to the lecture on the retirement and redundancy and answer the following questions.

1. What is redundancy and isn’t it an unfair dismissal?

2. What is retirement and how can an employee be retired fairly?

-Hi, everyone. It is Mr. Help from Evideo Lesson. Today I have around a new colleague Mr. Brain. How are you, Mr. Brain?

-Hi, Mr. Help, thanks for receiving me here. So we will talk about retirement, right? We will also talk about redundancy. Just before we start to talk about these legal may I tell our public something important?

-Go ahead mister Brain.

-Please dear friends, your subscription to our youtube channel is really important for us, so please subscribe and help us to grow our community.

-O’kay. Thanks mister Brain. I'm sure our friends will subscribe to our channel. Now let's carry on.

-I will start with redundancy. Redundancy is the state or a fact of being unemployed because work is no longer offered or considered necessary. In order to make employees redundant employers are following some procedures in order to not be considered unfair dismissal.

-So please tell me when it will not be unfair dismissal.

-Employer won't have any problem to make employees redundant if he will cease or will cease the business for the purposes for which the employee has been employed. Employer also can make people redundant if the business will be moved to another city or country and employer doesn't mean the particular kind of work as he has seized the business.

-The procedures to fairly make employees redundant are different according with the number of people employer will dismiss, for twenty two of ninety nine proposed redundancies consult the unions of the employees and if there is no union employer has to communicate to reach individual thirty days before make the final decision and for more than one hundred proposed redundancies employer has to consult unions ninety days before. Mister Brain can you please tell us when and how many employee can be retired fairly?

-An employee can be retired when you reach the normal retirement age but it is not that easy. There are some steps to be taken. First: employers to send a notice to the employees six months in advance. Second: together with his notice employers to send another notice stating that employee has the right to request to work longer. Third: employee must send the request of continuing working at least three months before the proposed retirement date. Fourth: and last step employer can refuse the request as long as he has a fair reason to not do so. So these are the steps to dismiss an employee who reached the retirement age.

-Thanks mister Brain and welcome to our Evideo lesson team.

-It was my pleasure mister Help.

Listening 8: Listen to the following song “ Nursery Rhyme Lawyer Lyrics ” by Throwing Toasters and fill in the missing words or phrases.

This is a great song about a lawyer who represents characters from popular nursery rhymes. Humpty Dumpty, Jack 'n Jill - all victims of needless accidents. Who do you call? The Nursery Rhyme Lawyer. Who else is going to serve a restraining order to keep the spider away from Little Miss Muffet.

Nursery Rhyme Lawyer Lyrics

Humpty Dumpty sat on a wall
Humpty Dumpty had a great fall and
All the king's horses and all the king's men
Couldn't get him a dime
But I could

Jack and Jill went up the hill
To fetch themselves a pail of water
They fell down and we sued everyone
Including the hill owner's daughter
If you are a nursery rhyme
And you're in trouble all the time
Wanna put your wife in a pumpkin rhine?
I can give you peace of mind

'Cause my service is one of a kind
I'm the Nursery Rhyme Lawyer

Little Miss Muffett sat on her tuffet
And then that spider came out to play
We served that arachnid with a restraining order
Now he must be at least two hundred yards away

Blackbirds baked in your pie?
Boy kissed you and made you cry?
Your cow jumpin' into the sky?
Crazy, thinkin' he could fly

Give my services a try
And see what a good boy am I

My ex-husband, that crooked old man, ran off with that floozy gardner, Mistress Mary, and left me with these twenty kids living in a shoe. I didn't have any idea what to do. So, I called up the Nursery Rhyme Lawyer. In just one week, he had found that miserable scum-bag of a man and had him paying child support. Huh! He can keep those cockle shells, I got the money. We live in a boot now, and I have a summer sandle on the lake. Thank you Nursery Rhyme Lawyer!

When your cupboard is bare
I'm gonna be there
Dish ran away with your spoon
I'll get it back soon

If you've lost your sheep
There's no need to weep
Someone's stealin' your tarts
Don't let it break your heart

If your bridge is fallin' down
I'm gonna be around
When the bough breaks
I've got what it takes

You know who I am
I'm the Nursery Rhyme Lawyer

You know, I make my living jumping over candlesticks because I'm very nimble and quick. But, uh, one day I slipped on a puddle of wax and I got burned pretty badly. I called the Nursery Rhyme Lawyer and he was able to get me workman's comp in no time flat. Thank you Nursery Rhyme Laywer!

My little lamb followed me to school one day. Those mean boys and girls just laughed and laughed at him all day long. So I called the Nursery Rhyme Lawyer and we filed defamation of character suits against them and I haven't heard so much as a peep from them since. Thank you Nursery Rhyme Lawyer!
I got pushed off a wall and the Nursery Rhyme Lawyer got me $1.2 million. You know the story. Man, my brains is scrambled...

Listening 9. Listen to the lecture on Remedies for Wrongful or Unfair dismissal and answer the following questions.

1. What are the options for the employee dismissed unfairly?

2. What is reinstatement?

3. What is reengagement?

4. What are the types of monetary awards?

5. What is the maximum discriminatory award?

Hi everyone, how are you? I am Mr. Help from Evideo lesson and today I will tell you about the remedies available to employees in case of wrongful or unfair dismissal. We so far could have listened to topics: types of employment, duties of employee and employer, contract of employment, types of dismissal. So let's start with those who were wrongfully dismissed. Employees who were wrongfully dismissed can bring their claim to the employment tribunal county court and high court depending on the amount to be clamed. If the claim is for less than twenty five thousand pounds employees complain to the employment tribunal or alternatively, they can go to the county court or high court. For those who were very unfairly dismissed damages, reinstatement and reengagement is available. Let's talk about it then. Reinstatement. Courts or tribunals can reinstate employees who were unfairly dismissed. To reinstate means if employee was unfairly dismissed and he wishes to have his work back court then forced the employer to reinstate the employee. Re-engagement is one of the options for an employee who was made redundant. If the redundancy is found to be unfair judges may state that employer must give to the employee the job comparable to what the employees had before. So, we learned about the reinstatement and re-engagement which are injunctions. Now it is time to talk about remedies or money you may have the right as unfairily dismissed. There are three types of awards: the basic, the compensatory and the additional award. The basic awards will vary in the court to age of the claimant. If you are between eighteen and twenty one year old you are entitled to half week’s pay for each year of complete service. If you are between twenty two in forty years old you are entitled to one week's pay for each year of complete service. If you are over forty years old you are entitled to one and a half week’s pay for each year of complete service. To be careful the maximum years of service to be count is twenty years. If you worked for thirty years for a company you will receive only for twenty years of service and not for thirty. Now let's talk about compensatory awards. Compensatory award is the name given to the award which in employment tribunal must make a successful claimant in an unfair dismissal case to compensate him for financial loss suffered as a result of his dismissal. The tribunal will also make a basic award but this is calculated according to a fixed statutory formula according to age and length of service of the claimant and does not vary in relation to loss actually suffered. Compensatory award is made only in cases in which tribunals decide as they often do. The reinstatement and reengagement orders will be inappropriate. The maximum discriminatory award is sixty three thousand five hundred pounds and it is based on the employee’s losses. These awards are always reduced if the employee contributed to his dismissal. Now let's talk about the additional awards. Additional awards may rise if the employer doesn't obey the judge's decision of reinstatement or re-engagement, if employee was dismissed unfairly because of race, sex, disability or any other type of discrimination or the reasons cited for dismissal of the employee is an inadmissible wrong. Wow, that was a very long talk, wasn't it? We talked about remedies available for wrongful and unfair dismissal.

Дата добавления: 2015-10-24