Answer

Employment and Labor Laws

Introduction

Many laws govern the conduct of labor unions. The majority of these labor laws are drawn from federal laws. The Department of Labor enforces and administers several federal employment laws that govern the conduct of employees and the labor unions. Some of these laws include the Fair Labor Standards Act (FLSA), the Employee Retirement Security Act (ERISA), Duty of Fair Representation (DFR), Racketeer Influenced and Corrupt Organizations Act (RICO) among others. This paper discusses three labor and employment laws that guide the internal union conduct.

The duty of fair representation

The duty and of fair representation is a law that focuses on workers in a particular group without any exclusive representation. The main obligation of this law is to represent all the employees fairly in good faith without any form of discrimination whatsoever. The law was recognized by the Supreme Court of the United States during the mid- 1940s when most employees were facing racial discrimination in their places of work. During this time, racial discrimination covered by Railway Labor Act. However, the duty of fair representation applied to all the employees and was covered by the National Labor Act and depending on the terms of the statute, to public sector workers covered by state and local laws regulating labor relations.

This law applies to all the actions taken by the labor unions in dealing with the employers as the representatives of workers in terms of reaching a collective bargaining agreement to the handling of employees’ complaints and grievances. The law also applies in the hiring of halls and enforcement of security provisions of the collective bargaining agreement. Despite addressing all these concerns, this particular law does not apply to the rights that employees can enforce individually. Thus, the law outlines that the labor unions have no duty and authority of assisting employees to file claims on worker’s compensation. Nonetheless, this law does not address the internal concerns of the unions. The unions have internal affairs that run them. These include the right to discipline the employees in case of any misconduct on officers or violation of the union laws. The laws also fail to address the mismanagement of funds by the unions’ officers. It leaves all these to be regulated by the Labor-Management Reporting and Disclosure Act. 

Rewriting the Duty of Fair Representation

Although this law is very important, I feel that a differential approach ought to have been taken when on the rights of employees. Some decisions that are termed as breach of the duty of fair representation do not make sense. I believe that recognizing the collective bargaining process calls for a lot of compromises. As a result, some workers get disadvantaged in the process, while others are favored at the expense of other workers. Therefore, the law should have a clause that supports and applies to the individual rights of employees. The employees should be given the mandate by the law to file any pending compensation claim. Some unions are also run by corrupt individuals whose main aim is to ride on employees’ sweat. Therefore, the law should have a clause that restrains the officials of the unions from taking part in corrupt deals. Mismanagement of funds in the unit forms part of unfair representation in the unions. Therefore, this particular law should address this.

Employee Retirement Income Security Act (ERISA)

The Employee Retirement Income Security Act (ERISA) was passed in 1974. ERISA protects the assets of retired Americans through the implementation of rules that outline that valid plans must follow to ensure that plan fiduciaries do not misuse plan assets. According to this law, the plans must provide participants relevant details about the characteristics of the plans and funding. The information about the plans should be provided regularly without any charges. Further, the Employee Retirement Income Security Act outlines the minimum standards of participation, funding and benefits accruals. ERISA also defines how long an individual is expected to work before becoming eligible to take part in the plan or accumulate the plan benefits.  This particular law also outlines the rules and procedures required by the sponsors when funding the plan.

ERISA stresses on fiduciaries’ accountability plan. This law defines fiduciaries as any individual exercising discretionary control over the plans of managing assets including the individuals providing investment advice on the plans (Hahn, & Bokert,2016). Wherever a fiduciary fails to follow the underlined principles of conduct, they are held responsible for the losses. ERISA also discusses the bans and provisions on the misuse of assets.

In addition to keeping participants informed of their rights, ERISA also grants participants the right to sue for benefits and breaches of fiduciary duty. To ensure that participants do not lose their retirement contributions if a defined plan is terminated, ERISA guarantees payment of certain benefits through a federally chartered corporation known as the Pension Benefit Guaranty Corporation. Notably, ERISA does not cover all the retirement plans. For example, it does not cover the retirement plans set by churches or government organizations. Besides, ERISA does not cover alien employees where accompany sets up a plan outside the United States.

Rewriting the Employee Retirement Income Security Act

Although ERISA has helped the employees acquire their benefits, a lot needs to be corrected under this particular law. Unlike 40 years ago, the retirement plan industry is totally different.  It has become the inverse of what used to happen when ERISA was put in place. ERISA was enacted to protect workers’ benefits, however, it struggles to cope up with its main objective. ERISA should be amended to accelerate the funding requirements for the plans. There should be more transparency in disclosing the requirements plans to the participants to ensure high accountability in the process. The law should also clear the up uncertainty on the status of cash-balance plans.

Apart from changing the contexts of ERISA, this law also provides provisions for revisions in the benefits booklets during annual open enrollment. In many cases, these changes are not formally executed by CEOs of many organizations. As a result, employers disregard the health and benefits plan as required by law. The federal law requires that any changes in the health and benefits plan made in pursuant to the provisions. The law also requires the terms of plan to provide clear procedures for amendment of such plans. Since many employers disregard this provisions, further changes should be put in place to regulate the employers amending essential sections in the favor. This should include a provision for penalties on the CEOs and organizations’ heads who make changes without formal pursuant. ERISA should also be adjusted to ensure that, the procedures of nagging the plan are prescribed in the governing document. Further any changes on the plans by CEOs should be consisted the benefit offerings prescribed by law, otherwise it punishable.

Racketeer Influenced and Corrupt Organizations Act (RICO)

RICO was passed in 1970 as the hitman for mob prosecutions. Before this law was put in place, the prosecutors conducted individual mob-related tries. However, with mobsters perpetrating each crime, the only option for the government was to prosecute individual criminals instead of going over the entire organization. Unlike before, RICO allows the prosecutors to charge all the individuals involved in corrupt organization deals. In the case of mob prosecutions, the government has an option to go for the top leadership of the organization as well. Racketeering is the crimes committed by individuals out of force or coercion. A racketeer works out ways to obtain a property or money from other persons by force or through intimidation. Therefore, racketeering is an organized crime. The law of the United States outlines 35 different offenses that constitute racketing. Some of these offenses include kidnap, gambling, drug dealing, and bribery, arson among others.

RICO accords the prosecutors the right of charging an individual who commits at least two acts of racketeering within a period of 10 years. RICO has clauses that provide for both civil and criminal penalties. Therefore, a claim can be brought by prosecutors on behalf of the government or even private entities. While taking part in the criminal prosecutions the law asserts that the jury must be convinced that the defendant is guilty beyond a reasonable doubt. This is the biggest burden of proof that exists in American law. Under criminal prosecutions, the violation of the law is highly punishable and is punishable up to a period of 20 years in prison (Twomey, 2013). However, the sentence can be increased depending on the underlying nature of the crime committed. RICO is a significant tool for dismantling crimes in enterprises. In case of an enterprise crime, the government gets an automatic forfeiture of all of the defendant’s interest in the organization. It is not only the defendants that may lose their money or property that can be traced back to the criminal conduct, but even the organization is subjected to severe crippling under ROCO. Further, the law gives the government the moral authority of not waiting until after a guilty verdict, when the property expected to become subject to forfeiture may be difficult to locate. Procedurally, the law gives the government the mandate to freeze the assets of the defendant even before going for a trial.

Rewriting Racketeer Influenced and Corrupt Organizations Act (RICO)

Although this law has significantly reduced racketing in American enterprises, some provisions are unsatisfying and should be written. It is the trials that prove that an organization or individuals are guilty of committing a crime. However, the actions of the government to freeze the assets of the defendant is legally wrong. The defendant should be given equal rights of being heard without freezing of the assets. This provision that gives the government the moral authority of freezing organization assets should be corrected to allow individuals and organizations to carry on with the day-to-day business until proved guilty taking part in such crimes. Otherwise, RICO remains an unjust law that punished even the innocents.

In short, employment and labor laws such as the Employee Retirement Security Act (ERISA), Duty of Fair Representation (DFR), Racketeer Influenced and Corrupt Organizations Act (RICO) play essential roles of governing the conduct employers, employees and the unions. However, these laws require little adjustments to remain relevan