Modification of working conditions in the United States of America

AutorThomas C. Kohler
Páginas115-123

Page 115

1. Is it possible in the United States for the employer to unilaterally modify the worker’s functions? If the answer is yes or if it is only allowed in cases of agreement with workers’ representatives, public authority or a third party (for example, Labor Administration or arbitrator), what are the causes that allow this modification? What are the formal or procedural limits that must be followed?

The answer to this question depends upon whether the employees at issue are represented for the purposes of collective bargaining by a union, and if so, the specific language of the applicable collective bargaining agreement.

In the United States, the default rule is that unless otherwise agreed by the parties, employment will be presumed to be on an at-will basis. The fiction behind the at-will rule is that the parties are in a constant state of "offer and acceptance" of terms. The terms of the offer can be changed at any time, and likewise, acceptance of them similarly can be declined.

Unlike nearly every other employment law regime, most employees in the United States are not employed on the basis of a fixed contract with stated terms, but on an at-will basis. Thus, employers in the United States typically remain free to change the terms of work unilaterally and "at will". If those changed terms are unacceptable to the employee, they typically are free to quit their employment, again "at will". Employment is regarded as resting on a contractual basis, and hence regarded primarily as a function of private ordering. There is no state involvement in an employer’s modification of employment terms where employment is on an at-will basis.

Naturally, if an employee has a contract of employment with his or her employer, and that contract sets forth the functions to be fulfilled, no unilateral change may occur. That would constitute a contractual breach. Changing terms in this case would require a "novation", a re-negotiation of terms with their positive acceptance by the employee, to be effectuated.

Page 116

Only a small portion of employees in the United States presently have the terms of their employment set through the provisions of a collective bargaining agreement. For the most part, the practice of collective bargaining in the United States in the private sector is governed by the terms of the National Labor Relations Act.

For those covered by a collective bargaining agreement, any change in functions specified by the agreement would require the consent of their collective bargaining representative. Typically, any asserted breach of a collective agreement that is not settled through the agreement’s "grievance procedure" will be subject to binding arbitration. Arbitration in the United States is a "creature of the contract". Hence, the collective agreement will state the procedures for selecting an arbitrator and specify the scope of the duty to arbitrate. Arbitral awards are subject only to very limited review by the courts.

2. Is it possible for the employer to unilaterally modify the employee’s workplace? If applicable, what are the causes that allow this modification? What are the formal or procedural limits that must be followed?

Because of the at-will nature of the employment...

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