Employment law continued

ERISA regulations of pension plans fall into three basic categories

1. minimum standards designed to promote nonforfeitable pension rights such as vesting, benefit accrual, and minimum age and service conditions 2. plan funding requirements to ensure that defined-benefit pension plans will have adequate assets to meet promised benefits 3. fiduciary standards and reporting and disclosure obligations

EEOC filing deadline

180 days before the filing of the EEOC questionnaire

The FMLA covers only entities employing _____ or more employees for each working day during each of ____ or more calendar weeks in the current or preceding calendar year.

50 20

What percentage of leave-eligible men with young children take some form of leave to care for a newborn or newly adopted child

75%

Section 1981 a(b)(1)

A complaining party may recover punitive damages under this section against a respondent if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual

Definition of a mass layoff under WARN

A mass layoff is a reduction inform which A) is not the result of plant closing and B) results in an employment loss at the single site of employment during any 30 day period for i) at least 33% of the employees (excluding any part-time employees) ii) at least 50 employees (excluding any part-time employees) iii) at least 500 employees (excluding any part-time employees)

when will a mass layoff deemed to not have occurred?

A mass layoff will not be deemed to have occurred if the employer can show the employment losses were the"result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of WARN

Who files tax returns?

Accountants

Allen v. Sybase, Inc. Worker Adjustment and Retraining Notification Act (WARN)

An employer can be liable for up to 60 days back-pay and benefits to certain employees who lose their jobs as part of a mass layoff or plant closing without receiving 60 days advanced notice.

Exception to WARN

An employer may be excused from the 60 days notice requirement where a mass layoff was the result of an unforeseen business circumstance An employer shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.

when shall an employer order a mass layoff?

An employer shall not order a mass layoff until the end of a 60-day period after the employer serves written notice of such an order to each affected employee

Fortune v. National Cash Register Co.

An issue of bad faith termination of an employment at will contract may be submitted to the jury Written contracts contain an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract the good faith requirement is implicit in every contract for employment at will

Lilly Ledbetter Fair Pay Act of 2009

An unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

what must the employer show before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, Shirley MacLaine Parker v. Twentieth Century-fox film Corp.

Before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employees rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.

How are collective-bargaining agreements interpreted?

Collective-bargaining agreements, including those establishing ERISA plans, are interpreted according to ordinary principles of contract law, at least when those prinicples are not inconsistent with federal labor policy. In Yard-man, the court purported to apply traditional rules for contractual interpretation.

Wal-Mart Stores, Inc. v. Dukes What are the 23(a)'s 4 requirements

Commonality typicality numerosity adequate representation

ERISA Pension Benefits what are the two basic types of ERISA pension plans?

Defined contribution plans and defined benefit plans

What is the difference between pension plans and welfare benefit plans?

ERISA imposes elaborate minimum funding and vesting standards for pension plans, while welfare plans are exempt from those rules Welfare benefit plans must be established and maintained pursuant to a written instrument, but employers or other plan sponsors are generally free under ERISA, for any reason at any-time, to adopt, modify, or terminate welfare plans

Why was ERISA enacted?

ERISA was enacted because Congress found it desirable that "disclosure be made and safeguard be provided with respect to the establishment, operation, and administration of employee benefit plans." The focus of the statute is on the administrative integrity of benefit plans, which presumes that some type of administrative activity is taking place (administrative scheme)

Implied covenant of good faith and fair dealing (for a written contract only)

Each party to an employment relationship, including at-will employment, owes a nonvaivable duty of good faith and fair dealing to the other party Includes a party's obligation not to hinder the other party's performance under, or to deprive the other party of the benefit of, their contractual relationship

FMLA Employer notice

Employers must give employees notice of their FMLA rights in conspicuous places on the premises of the employer EMployers must give notice of employee FMLA rights in employee handbooks or other such written material, and also to give employees notice of their rights and responsibilities under the FMLA when they request leave

Exclusive reliance on private suits

Examples of exclusive reliance on private suits include state-law private tort and contract actions and suits under 42 U.S.C. 1981 and 1983. There are no administrative exhaustion requirements. Access to the courts requires only the securing of counsel. Private suit models rely on the civil courts the action is often one for damages, and there is a right to a jury trial for disputed issues of fact

Hazel Paper Co. v. biggins

Held that terminating an employee to prevent vesting of a pension benefit did not state a claim of intentional age discrimination in violation of the ADEA.

Illusory promise doctrine: contract law

Instructs courts to avoid constructions of contracts that would render promises illusory because such promises cannot serve as consideration for a contract.

What does the pre-emption clause establish?

It establishes as an area of exclusive federal concern the subject of every state law that related to an employee benefit plan governed by ERISA

Availability of Jury Trials Are jury trials available for Title VII disparate-impact claims and failure of reasonable-accommodation claims under the ADA or section 501 of the rehabilitation act?

No

Does ERISA mandate the establishment of employee benefit plans?

No

Is a contract between an employer and an individual employee providing for post-retirement or post-termination in-kind compensation a plan, fund, or program with the definitional framework of ERISA?

No

Does ERISA's pre-emption provision refer to state laws relating to employee benefits?

No, ERISA's pre-emption provision refers to state laws relating to employee benefit PLANS.

Does Rule 23 set forth a mere pleading standard?

No, a party seeking class certification must affirmatively demonstrate his compliance with the Rule-- that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.

Do courts generally allow non-economic damages under the ADEA?

No, because of the availability of liquidated damages which amounts to a doubling of economic loss

Does the FMLA require employers to continue paying workers while they are on leave?

No, but the FMLA permits the employer to require employees to use any paid leave accrued pursuant to the employer's own leave policies while they are on FMLA leave, provided the employer includes such requirement in its written leave policies.

Are stock option plans regulated by ERISA?

No, stock option plans are not currently regulated by ERISA or comprehensively regulated by the federal securities laws

Collective Action

Opt-in Collective actions are a form of a class action have to be "similarly situated" FLSA ADEA EPA

23(b)(3)

Opt-out back-pay

ERISA definition of welfare plan

Plans, funds, or programs established or maintained to provide participants with additional benefits, such as life insurance and disability coverage.

ERISA definition of pension plan

Plans, funds, or programs that provide retirement income to employees or that result in a deferral of income

Wal-Mart Stores, Inc. v. Dukes What does 23(a)'s rule of commonality mean?

Requires plaintiffs to show that "there are question

Saving clause

Returns to the States the power to enforce those state laws that regulate insurance, except as provided in the deemer clause

Complaint rule

The EEOC charging period ran from the time when the discrete act of alleged intentional discrimination occurred, NOT from the date when the effects of this practice were felt.

Paid and unpaid leave law Family and Medical Leave Act

The FMLA requires covered employers to grant eligible employees a total of 12 workweeks of unpaid or paid leave during any 12 month period.

FMLA Employee Notice

The FMLA requires employees requesting leave to give their employer 30 days notice if the need for leave is foreseeable, based on expected birth placement, or planned medical treatment, or at least such notice as is practicable. An employer may request that employees provide the certification of a health care provider as a condition of requesting leave based on the serious health condition of a family member or of their own

What does the class determination generally involve?

The class determination generally invokes considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action

How is the deemer clause read?

The deemer clause is read to exempt self-funded ERISA plans from state laws that regulate insurance within the meaning of the saving clause by forbidding states to deem employee benefit plans "to be an insurance company or other insurer or to be engaged in the business of insurance.", the deemer clause relieves plans from state laws "purporting to regulate insurance. As a result, self-funded ERISA plans are exempt from state regulation insofar as the regulation "relates to" the plans. State laws directed toward the plans are pre-empted because they relate to an employee benefit plan but are not "saved" because they do not regulate insurance.

Three provisions of ERISA that speak expressly to the question of pre-emption

The provisions shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan Nothing shall be construed to exempt or relieve any person from any law of any state which regulates insurance, banking, or securities neither an employee benefit plan nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer​, bank, trust company, or investment comapny or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.

What is the gap that falcon described regarding commonality

There is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds and his otherwise unsupported allegation that the company has a policy of discrimination (b) the existence of a class of persons who have suffered the same injury as that individual such that the individual's claim and the class claim will share common questions of law or fact and that the individual's claim will be typical of the class claims

What burden does the employer have regarding disaggregating employment losses over a 90 day period

There is an affirmative burden on the employer to prove that the court should disaggregate employment losses that occurred during the 90 day period. If the employer does not satisfy this burden, the aggregate number of employees who have lost their jobs shall be considered to be a mass layoff

Pre-requisite for ERISA pre-emption

There needs to be an established administrative scheme

Examples of Hybrid systems

Title VII ADEA ADA Borrow features from both the private suit and administrative enforcement models Claimants have a private right of action in state or federal courts. and the courts have been the principal formulators of the substantive policy choices left open by the statutes. Unlike pure private-suit models, title VII, ADEA, and ADA give administrative processes a prominent role. Ex, claimants must first file charges with the EEOC.

True or False Title VII plaintiffs can only file a charge to cover discrete acts that occurred within the appropriate time period

True

Discrete acts of discrimination v. hostile work environments hostile work environments

Typically comprises a succession of harassing acts, each of which may not be actionable on its own. a hostile work environment claim cannot be said to occur on any particular day

WARN: smaller employment losses

WARN also directs that a number of smaller employment losses over a 90 day period may be aggregated to constitute a mass layoff, thereby imposing on an employer the obligation to provide either statutory notice or 60 days' back pay in lieu of notice to relevant employees EXCEPTION: an employer may disprove the existence of a mass layoff if it shows that the individual sets of employment losses were separate and distinct causes

Bazemore v. Friday

When an employer adopts a facially discriminatory pay structure that puts some employees on a lower scale because of race, the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used. An employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks pursuant to a system that is "facially nondiscriminatory and neutrally applied"

Hybrid Systems

Whether to rely exclusively on the private suit or on a specialized administrative agency or to utilize some mixture of both.

Does the duty of good faith and fair dealing apply whether the relationship is terminable at will?

Yes

Are employee benefit plans that are insured subject to indirect state insurance regulation?

Yes An insurance company that insures a plan remains an insurer for purposes of state laws "purporting to regulate insurance" after application of the deemer clause. The insurance company is therefore not relieved from state insurance regulation

Does the FMLA required employers to reinstate an employee who takes FMLA leave to the position of employment held by the employee when the leave commenced, or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment.

Yes Continue to get healthcare continue senority

What does employment practice generally refer to?

a discrete act or single "occurrence" that takes place at a particular point in time

Williams v. Wright Donovan analysis

a plan, fund, or program under ERISA is established if from the surrounding circumstances a reasonable person can ascertain the - intended benefits - a class of beneficiaries - the source of financing - procedures for receiving benefits

Rule 23(b)(2)

allows class treatment when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

Discrete acts of discrimination v. hostile work environments discrete acts of discrimination

an act that in itself constitutes a separate actionable unlawful employment practice and that is temporally distinct termination, failure to promote, denial of transfer, or refusal to hire.

What are the two elements of a disparate-treatment claim?

an employment practice discriminatory intent

Advantages of private suits

because private suits draw from the general resources of the court system, regulatory norms can be promulgated without special allocation of scarce government agency budgetary resources for enforcement At least where legal assistance is avaliable, claimants enjoy direct access to the remedial scheme where courts are receptive to the substantive claims, they may be quite vigorous enforcement agents; where jury trials are afforded, there also may be a distinctly pro-claimant tilt.

disadvantages of private suits

congestion in the courts may lead to a multiple-year delay in the redress of wrongs even where attorney's fees are recoverable by successful claimants, the availability of legal counsel may be problematic courts may not be very good at coherent development of the subsidiary policy decisions that have to be made under the statutroy​ scheme.

Examples of discrete acts of discrimination

discrimination in "termination, failure to promote, denial of transfer, and refusal to hire"

What is the central element of disparate treatment?

discriminatory intent

Paycheck accrual rule

each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted the amount of that paycheck, no matter how long ago the discrimination occurred.

What problems was the pre-emption provision intended to address?

eliminating the threat of conflicting and inconsistent state and local regulations eliminating the threat of conflicting or inconsistent state and local regulation of employee benefits plans pre-emption ensures that the administrative practices of a benefit plan will be governed by only a single set of regulations

Who bears the burden of proof for the issue of aggregation?

employers

Falcon's two ways that the conceptual gap might be bridged

first, if the employer "used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule23 (a). Second, significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes (significant proof").

Non-economic damages

for statutory claims, the availability of non-economic damages--such as pain and suffering, humiliation, or out-of-pocket expenses is governed by the statute. title VII permits plaintiffs to recover non-economic damages subject to a cap based on the employer's size.

Delaware State College v. Ricks

have to identify a discriminatory act that continued until or occurred at the time of, the actual termination of his employment. the EEOC charging period ran from the time the tenure decision was made and communicated to rick"

Kolstad v. american dental association Section 1981 a(a)(1)

limits compensatory and punitive awards to instances of intentional discrimination establishes a right to compensatory damages

What are the three elements to recover lost of profits (breach of contract claims)

lost profits may be recovered only if: (1) lost profits were fairly within the contemplation of the parties to the contract at the time it was made (2) lost profits were caused by the defendant's breach (3) damages are capable of proof with reasonable certainty damages must be reasonably certain and directly traceable to the breach, not remote or the result of other intervening causes

Do plaintiffs pursuing state law contract and tort claims ordinarily recover attorney's fees?

no, absent a statutory provision awarding attorney's fees, each party must pay their own attorney's fees. however, most employment statutes allow prevailing plaintiffs to recover attorney's fees

Contracts that are silent as to their duration will ordinarily be treated as . . .

operative for a reasonable time

What activity qualifies as an unlawful employment practice in cases of discrimination with respect to compensation?

pay-setting decision= unlawful practice under this view, each particular salary-setting decision is discrete from prior and subsequent decisions and must be challenged within 180 days on pain of forfeiture Pay-setting decision AND the actual payment of a discriminatory wage= unlawful practice under this view, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180 day charge-filing​ period, are not themselves actionable, but they are relevant in determining the lawfulness of conduct within the period.

Defined benefit plan

promise to pay a specific or definitely determinable benefit, the employer sponsor assumes the market risk that contributions it makes to the plan will not yield promised pension benefits

Purpose of ERISA

protect employees once a plan is established and certain other requirements are met

Defined contribution plan (401k)

provide for an individual account for each participant and for benefits based solely upon the amount contributed to that account plus any income or other gain (earned by the contribution) The employee participants has to invest the employer's contribution as best he or she can and assumes the attendant market risk.

Kolstad v. american dental association Section 1981 a(b)(1)

requires plaintiffs to make an additional demonstration of their eligibility for punitive damages the higher standard that a plaintiff must satisfy to qualify for a punitive award

ERISA's non-interference provision

section 510 prohibits an employer from discharging an employee "for the purpose of interfering with the attainment of any right to which an employee may become entitled" under an employee pension or welfare benefit plan.

Exclusive reliance on administrative agency

the National Labor Relations Act of 1935, U.S.C. section 151 A worker seeking union representation or complaining of an unfair labor practice must secure the assistance of the NLRB. Representation proceedings take place solely on the administrative level

Pollard v. E.I. du Pont de Nemours & Co.

the court held that front pay is an instance of equitable relief authorized by section 706g and is not an element of compensatory damages under section 1981a and hence not subject to the damages "caps" in section 1981a(b)(3) of the 1991 civil rights act

Ragsdale v. Wolverine World wide, Inc.

the court held that the department's regulation requiring an employer to designate leave as FMLA leave was invalid in so far as it mandated the tolling of the running of the 12 week period until the employee was advised of the designation. The FMLA requires employees to prove that an employer's actions or lapses caused "real impairment of their rights and resulting prejudice."

FMC Corporation v. Holliday (pre-emption case)

the deemer clause makes clear that if a plan is insured, a State may regulate it indirectly through regulation of its insurer and its insurer's insurance contracts; if the plan is uninsured, the State may not regulate it. As a result, employers will not face "conflicting or inconsistent State and local regulation of employee benefit plans

Truelove v. Northeast Capital & Advisory, Inc. Definition of wages in the 1966 enactment of Labor Law article 6

the earnings of an employee for labor or services rendered, regardless of whether the amount of earnings is determined on a time, piece, commission, or other basis courts have construe​​d this statutory​ definition as excluding ​certain forms of incentive compensation that are more in the nature​​ of a profit-sharing arrangement and are both contingent and dependent, at least in part, on the financial success of the business enterprise. The bonus compensation plan cant be dependent solely upon his employer's overall financial success, the bonus compensation plan had to be based on personal productivity

Kolstad v. american dental association circumstances where intentional discrimination does not give rise to punitive damages liability

the employer may simply be unaware of the relevant federal prohibition the employer discriminates with the distinct belief that its discrimination is lawful the theory of discrimination may be nocel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisifies a bona fide occupational qualififaciation defense or other statutory exception to liability

Shirley MacLaine Parker v. Twentieth Century-fox film Corp.

the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.

23(b)(2)

the rule requires plaintiffs to show that "there are questions of law or fact common to the class." The plaintiff's claims must depend upon a common contention. For example, the assertion of discriminatory bias on the part of the same supervisor. The common contention must be of such a nature that it is capable of classwide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

Ledbetter v. Goodyear Tire & Rubber Co.

the time for filing a charge of employment discrimination with the EEOC begins when the discriminatory act occurs

purpose of ERISA preemption

to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations

how is an employer eligible for FMLA?

to be eligible, an employee must have worked for the employer for at least 12 months for at least 1250 hours during the previous year at a worksite where their employer employs at least 50 employees within a 75-mile radius

What reasons are FMLA granted?

to care for a child born within the last year to care for a child who has been adopted or place in foster care employee during the past year to care for a spouse, child, or parent with a serious health condition because of a serious health condition that renders the employee unable to perform the functions of his or her position qualifying exigencies relating to military service (26 weeks leave)

Deemer clause

under the deemer clause, an employee benefit plan governed by ERISA shall not be "deemed" an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws "purporting to regulate" insurance companies or insurance contracts.

Front pay in lieu of reinstatement

where an employee has been working for an indefinite term, the court must determine the effect of the termination on the employee's future wages. Front pay is a helpful remedy in ADEA cases where an older plaintiff faces a low likelihood of reemployment

Is pay-setting decision a discrete act?

yes, pay-setting decision is a discrete act, it follows that the period for filing an EEOC charge begins when the act occurs

Do employee injured by statutory violations have a cut to mitigate losses?

yes, this requires searching for alternate employment, where an employee has obtained alternate but inferior employment, the court must estimate the difference in earnings between the substitute employment and the original job