“Employer’s Duty of Care”

The standard that tribunals require for the employee's actions is not that of certainty that there is a risk, but that the action has been taken in good faith (1). In order to maintain a work environment free from “recognized hazards” that could cause serious harm to employees the Occupational Safety and Health Act of 1970(2) was created in United States and began to address the need to prevent, or minimize workplace accidents and health hazards. The Occupational Safety and Health Administration (OSHA) requires employers to comply with specific occupational health standards and also provides that employers comply with a “general duty” to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”(3)

 An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work. Employees covered by the Fair Labor Standards Act (FLSA)(5)  must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees.

There are some requirements(6) that must be met to be qualify for the executive employee exemption: The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week; The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and the employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. 

 The First Amendment of the Constitution guarantee free speech, and the Court(7) generally recognize advertisements as part of the free speech, because a part of the economic interest, the consumers have interest in hear what they can say. Therefore the right to free “commercial speech” the advertiser faces the challenges of the consumer demand which sustains the advertising industry.
 

References

Goldman, Linda, Lewis, Joan,. How safe is safe enough? Occupational Health, 00297917, Jun2004, Vol. 56, Issue 6

Halbert, T., & Ingulli, E. (2009). Law & ethics in the business environment: 2010 custom      edition (6th ed.). Mason, OH: South-Western Cengage Learning.(pg. 162)

United States Department of Labor - USDL. Workers’rights under the OSH Act.     Retrieved from: http://www.osha.gov/as/opa/worker/complain.html

U.S. Department of Labor. Wage and Hour Division .Fact Sheet #17A: Exemption for        Executive, Administrative, Professional, Computer & Outside Sales Employees Under   the Fair Labor Standards Act (FLSA). Retrieved from:             http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf

HOWARD, JOHN  (2011) OSHA STANDARDS-SETTING: PAST GLORY, PRESENT             REALITY AND FUTURE HOPE. (pg. 251)