What Are The Obligations Of U.S. Employers As It Relates To Bargaining With Unions? A hypothetical: Company A has 10 employees who work &quot;at-will&quot; making $100k/yr and 1 owner who keeps 100% of all net profits. The employees of Company A decide to Unionize. Exclude other aspects of labor contracts to keep it simple and just focus on the salary piece. What are the lawful requirements of Company A in bargaining? Is there a minimal salary that must be offered (apart from minimum wage laws)? What happens if Company A and the union do not agree to terms? Can company A elect to hire people from outside the union &quot;at-will&quot; while negotiating with the union? Could Company A continue to do so indefinitely, essentially no longer employing the union members and just hiring a new group? I have read: &quot;It is clear that the obligation to bargain in good faith does not compel the making of concessions or reaching final agreement on a contract. It’s the process, not the end result, that the law examines.&quot; But this doesn't really seem like a full explanation since it makes it seem like unions are completely impotent. Can't Company A just offer something substantially lower, say minimum wage, to the union and claim that they view the inability to easily hire/fire/promote employees at will as a major business risk? Is this basically saying that the only power unions ultimately have is to quite en masse and make it difficult for the company to hire replacements?
Caveat: This answer applies to private sector union workers in the U.S. The considerations that apply to public sector unions are very different. Also, as I discuss below, there are special labor relations law rules that apply to a few specific private sector industries that are pertinent to these questions. The legal framework largely flows out of the National Labor Relations Act and the cases decided under it by the National Labor Relations Board (which is the first instance trial court in most union-management disputes), the U.S. Courts of Appeal for the various circuits, and the U.S. Supreme Court. But, I have not cited chapter and verse of particular statutory sections and cases supporting this analysis for lack of space and time (it would normally take up about a third of a one semester law school class on labor law to cover the points summarily answered below). What are the lawful requirements of Company A in bargaining? There is an obligation to negotiate in good faith and to make available some information necessary to allow that to be possible. The employer also can't fire an employee for insisting on negotiations in good faith with the union or for union activity. Is there a minimal salary that must be offered (apart from minimum wage laws)? No. Also, in some industries, the employer needs to pay the &quot;prevailing wage&quot; in order to get government contract which are critical to its business and basically amount to the union negotiated wage at comparable firms. What happens if Company A and the union do not agree to terms? There is no collective bargaining agreement and the employer's terms are in force when the existing collective bargaining agreement expires. Usually, if this happens, the workers then go on strike rather than working under the unilaterally employer imposed contract terms, until a new collective bargaining agreement is negotiated (and the vast majority of the time, a new collective bargaining agreement is negotiated after some period of time when the workers are on strike). But, sometimes a prior collective bargaining agreement will establish an arbitration resolution if there is a deadlock. Arbitration is also used to resolve deadlocks, if I recall correctly, in a few key industries with large employers where avoiding a strike is critical to the nation's economy (outside the jurisdiction of the National Labor Relations Act) that are established by statute. Can company A elect to hire people from outside the union &quot;at-will&quot; while negotiating with the union? Yes. These people are often pejoratively called &quot;scabs&quot; and neutrally called &quot;replacement workers&quot;. Generally speaking, when a strike is over, the business has to take back all of the striking workers, and fire all of the replacement workers, except to the extent that the business whose workers went on strike had vacancies when the strike started. In part, this is because this is a term of the new collective bargaining agreement and in part as a consequence of the requirement that employers not retaliate against employees for union activities. In states that are not &quot;right to work&quot; states, the union can prevent non-union replacement workers from being hired at all after the strike is over. Could Company A continue to do so indefinitely, essentially no longer employing the union members and just hiring a new group? More or less. I can't easily summarize the case law on the point and prior collective bargaining agreement terms can be relevant. Also, there are a few sectors of the economy (mostly the stage play industry, the movie industry, and the construction industry), in which unionization is structured on the basis of professions for an entire industry, or the entire industry in a geographical region, rather than on an employer by employer basis. This tactic doesn't work in those industries. The common thread is that work in these industries is organized on a project by project basis (i.e. a particular play, a particular movie, or a particular construction project), in which the firm paying for the project is usually a single project only entity. Another important bright line rule is that an employer always has the right to shut down the business covered by the union entirely, rather than deal with the union. But, this is why unions tend to be more effective in industries with large employers who can't replace the employees very easily with non-union workers (like factories and ship yards, and grocery store chains). Is this basically saying that the only power unions ultimately have is to quite en masse and make it difficult for the company to hire replacements? Basically. But, the power to strike is considerable in most unionized employment contexts and many people won't &quot;cross a picket line&quot; in solidarity with striking workers. From a consumer's perspective, not crossing a picket line means not patronizing a business whose workers are on strike. But, not crossing a picket line can also mean that workers (usually at a unionized business that is a vendor to the business whose worker's are on strike, or that deliver things to the business whose worker's are on strike) will refuse to participate in doing business with the business whose worker's are on strike. So, even if enough replacement workers can be found to continue to operate the business, this doesn't necessarily mean that a business won't face very severe consequences for continuing to operate with replacement workers while its regular workers are on strike. Furthermore, unions can take other actions short of strikes, like staying on the job and &quot;working to rule&quot; strictly refusing to show any flexibility beyond the bare requirements of their existing contract or the new one, or pursuing every single minor bump and scratch as a worker's compensation claim, reporting every Occupational Safety and Health Administration violation, or pursuing unfair labor practices litigation against the employer. Private sector unions are declining, in part, due to the ability of employers to hire replacement workers. Still, this is one reason for the long and steady decline of unionization in the private sector U.S. labor market (although the trend has reversed a bit in the last several years). Consider, for example, the following chart (via Wikipedia): As I recapped the economic history of labor action in the American workforce as of December 2010: [There have been] six general strikes in U.S. history, one in 1919 in Seattle, and four in 1934, at the height of the Great Depression, one in Toledo, one in Minneapolis, one in San Francisco and one at West Coast Ports. There was also a general strike in the Commonwealth of Puerto Rico in 1998. The last one in the English Speaking United States was 76 years ago, and very few people living today remember it. The United States has never had a nationwide general strike and just two general strikes in its history, one restricted to a single industry, and the other to a U.S. territory, extended beyond a single city. Union-management relations in the United States used to look a lot like they do in Europe. Strikes were large, frequent and involved a large share of the work force. National guard forces or private security forces were frequently called in to put them down in bloody conflicts. Openly socialist political parties were organized. In 1950, a year that revisionist history remembers as a tranquil period in American history, there were 424 strikes involving 1,000 or more workers, in all involving 1,698,000 workers, which was more than one in nine members of the unionized workforce of 14.3 million workers who made up 31.5% of the total work force. In 2008, there were 15 strikes involving 1,000 or more workers, in all including 72,000 workers which was one in two-hundred and twenty-three members of the unionized workforce of 16.1 million workers who made up 12.4% of the total workforce. The public sector which is 36.8% unionized, is as unionized as the private sector was at its peak. The private sector, which is 7.2% unionized, has the lowest level of unionization in the private sector since the 1920s, if not earlier. The unionized workforce has remained more or less constant for half a century, despite a growing workforce, and that masks the fact that there has been substantial growth in public sector union membership and a substantial decline in private sector union membership over that time period. The United States, there has been only one year since 1983 that more than 3% of unionized workers went on strike (1986), and there has only been one year since 1998 (the year 2000) when more than one in eighty union members went on strike. In the entire United States from 1990 to 2008, there wasn't a single year that there were more than 45 strikes involving 1,000 or more workers in the entire United States, in a period that started with a labor force of 103 million workers and peaked at just short of 130 million workers. In contrast, there wasn't a single year from 1950 to 1987 that had less than 46 strikes, despite that fact that the workforce was significantly smaller. Prior to the 1980s there were a couple hundred major strikes in the United States per year, about ten times current levels of labor action. I updated this account in 2014 and 2015: There were thirteen major strikes that took place at least in part in 2015 according to the Bureau of Labor Statistics monthly tables. This is just two more than in the year 2014, which had fewer major strikes which involved fewer workers than any year from 1947-2013 except 2009, a low point of the financial crisis. Most of the half century before WWII also had more major strikes (at least proportionate to the size of the population) than there are these days. In all of the United States in 2014, there were just 11 strikes involve 1,000 or more workers, which involved a total of 34,000 workers and resulted in 200,000 work-days idle, which was less than 0.01% (i.e. less than 1 day in 10,000) of the total working time of the American labor force. The year 2015 was the next most peaceful year in post-WWII labor history. The year 2010 also had just 11 major strikes, but those strikes involved more workers and produced more days idle. There were just 5 major strikes in 2009 in the United States which involved fewer workers than in 2014 and fewer days idle. This has a lot to do with the decline of private sector unions in the United States. . . . Just under half of union members are in the public sector and public sector unions, as a rule in the United States, have limited or non-existent rights to strike (although teachers unions which are a huge part of total number of public sector union members can frequently strike). In 2014, just 0.001% of the working time of the American labor was idle due to strikes or lockouts. The last year than more than 0.01% of the working time of the American labor force was idle was 2000. The last year that 0.10% or more of the working tie of the American labor force was idle was 1978. Only one year from 1948 to 1959, a time often nostalgically remembered as the &quot;good old days&quot; by conservatives was below the 0.10% threshold. Nationally, in 2014, the private sector 6.6% (7.4%) of employees were members of unions (represented by unions), while in the public sector 35.7% (39.2%) of employees were members of unions (represented by unions), with both percentages generally tending to fall over the previous decade. Within the public sector, nationally, union representation rates are highest with local government employees (45.5%), intermediate with state government employees (32.8%), and lowest with federal employees (31.6%). In the United States in the year 2020 the union membership rate (the percentage of wage and salary workers who were members of unions) was 10.8 percent. . . . the union membership rate in the public sector was 34.8 percent, while the rate in the private sector was 6.3 percent.
As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual.
What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to).
What would the implications be if an employee were to refuse signing an amendment and insist on what was stated in the original signed contract, even if he/she knows it's a mistake? The contract is voidable unless the employer's subsequent conduct reinforces its legitimacy. The employee's attempt to take advantage of something he knew was a mistake contravenes the covenant of good faith and fair dealing on which contracts are premised. South African contract law is not an exception to this: The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing. The employer can resort to records of prior communications between the parties to prove that the stated compensation was intended as yearly, not monthly. Even if those records are not available in a judicial dispute, the employee would have a hard time persuading a court that the salary that was agreed upon is 12 times --or exceeds by a factor of 12-- the market rate for a job position of similar type.
Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says &quot;You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay&quot;, that's not an enforceable promise. But your existing contract might say &quot;You get 2 weeks severance pay when we fire you&quot;, and that can't be walked by by saying &quot;I'll thinking about it&quot;. And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law).
Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality? Neither. Contract law contemplates a party's subsequent inability to comply with the terms that were established at the formation of the contract. In the Restatement (Second) of Contracts, this is referred to as supervening impracticability. See, for instance, the Restatement at § 261. In the hypothetical scenario you outline, the loss of a company laptop renders the employee's promise (namely, "to return any company-issued computers or devices") impracticable. Instead, the circumstances may entitle the employer to restitution (by the employee) for what the employee now is literally unable to return. That would be cognizable as compliance in substance.
must all interaction be through a lawyer after receiving the first letter? Consistent with others' answer, no, you don't need a lawyer. But your question in and of itself is indicative of the steep learning curve you would need to undergo in order to avoid "shooting yourself in the foot", as the saying goes. By this I am not encouraging you to get a lawyer (in fact, here on stackexchange and elsewhere I promote litigation in pro per). Instead, I encourage people to learn about the applicable statutes, procedural laws, how to conduct legal research, and to draft/present their arguments in court. Here are some suggestions regarding your response letter: Avoid sarcastic admissions such as "Right, for sure I am at fault for the employer's [fill_in_the_blanks]". If you ask for a clarification, clearly state that you expect reasonably sufficient detail as well as any and all records that substantiate the alleged damages. Although that won't strictly limit the allegations the employer can make in court proceedings, the attorney's reply might help evidencing the employer's vexatious approach later on. Avoid wording that may be misinterpreted as consciousness of guilt. Be assertive and truthful. Keep in mind the lawyer is gauging (1) how easily he can intimidate you, and (2) whether he can make additional claims to harass you via court proceedings. From now on, all your interactions with the attorney and the employer should be in writing (preferably email, given its reproducibility). When unethical individuals are aware that their position is devoid of merit, they are very tempted to indulge in false accusations (of threat, for example). Thus, communications in writing constitute objectively verifiable proof of who is acting unlawfully. Even if the attorney premises on your contract (or employment agreement/manual, or company's guidelines) the alleged damages, the clauses at issue might be illegal and therefore void. For instance, from 2007-2012 my former employer (an Indian IT intermediary) prohibited me --via contract-- to disclose my salary. The contract contained the typical lawyered babbling, but that doesn't mean that all of it was legal. In 2013 I realized that the prohibition violated Michigan law, and he had no option but to strike the entire clause. That being said, I didn't sue him for that, but for other more important matters which are currently pending review in the U.S. Supreme Court. Absent any further context in your inquiry, it is hard to make additional suggestions on how to proceed.
UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good.