USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
• “mandatory” (which the parties must negotiate); and • “permissive” (which neither party can be forced to negotiate). 6.3 Collective Bargaining Agreements When employees choose a union to represent them, the employer and the union are required to meet at reasonable times and places to negotiate in good faith to reach a binding agreement that sets forth the terms and conditions of employment. The employer and union are not required to adopt any proposal made by the other; however, they are required to bargain in good faith to try to reach an agreement. Failure to reach an agreement may result in a strike or lockout or could prompt the union to resort to other economic weapons. If the parties do not reach agreement despite good- faith bargaining, the employer may declare an impasse and unilaterally implement its bargaining proposals. The union could, however, file an unfair labour prac - tice charge with the NLRB if it contends the employer failed to bargain in good faith. The NLRB can order the employer back to the bargaining table and to rescind any unilateral changes the employer may have made based on a claim of impasse. For workforces that are organised, bargaining typi - cally takes place at the company level. However, some employers bargain with unions through asso - ciations, which may result in a uniform agreement for certain types of work performed by numerous different employers (eg, across an industry such as construc - tion).
• a dismissal due to discrimination or retaliation that is in violation of a federal, state or local law; • an express or implied contract, including a collec - tive bargaining agreement; • an implied covenant of good faith and fair dealing; and • a discharge that would violate the state’s public policy – for example, firing an employee for seeking worker’s compensation benefits following a work- related injury. The laws surrounding these exceptions vary consider - ably by state. Unless provided for by the terms of an employment contract or collective bargaining agreement, proce - dures do not differ depending on the grounds for dis - missal. Lay-Offs In the USA, the term “lay-off” is often used for instanc - es in which an employer eliminates a number of jobs owing to economic reasons or a business need to restructure. Although a group of at-will employees may generally be dismissed by an employer at any time, the federal Worker Adjustment and Retraining Notification Act (the “WARN Act”) and certain state law equivalents require employers to give employees advance notice of a lay-off or plant closing in some circumstances. In addition, if an employer seeks a release of federal age discrimination claims in connection with an exit incen - tive programme or other group employment termina - tion, the employer must provide certain disclosures to the employees being separated. Lastly, an employer may have additional obligations when dismissing a group of employees under a collective bargaining agreement or – in some cases – if the employee works in the public sector. 7.2 Notice Periods Unless specified in an employment contract or col - lective bargaining agreement, there generally are no notice requirements. There is, however, one caveat – in some circumstances involving a plant closing or mass lay-off, an employer may have to give employ - ees 60 days’ notice of the lay-off under the WARN Act
7. Termination 7.1 Grounds for Termination
Employment is generally presumed to be “at will”, meaning either the employee or the employer can end the employment relationship without notice at any time for any reason – be it good or bad – or for no reason at all. There are four major exceptions to the “employment at will” doctrine – namely, where there is:
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