Test One

to file a retaliatory discharge claim, one must show

1. participation of a protected activity 2. an adverse employment action 3. a casual link b/w the protected activity and the adverse action

Worker Adjustment and Retraining Notification Act

(WARN) Employers with 100+ employees to provide 60 days advance notice for mass layoffs due to plant shutdown (if closing would trigger 50 employment losses in 30 days)The three exceptions are the (1) "faltering company exception" (A) when knowledge of a layoff will negatively impact the company's ability to obtain additional funding, (2) the "unforeseeable business circumstance" (B) when unexpected circumstances occur, and (3) the "natural disaster" (flood, earthquake, drought)

"Disparate Impact" Discrimination

(also referred to as unintentional discrimination): Occurs when plaintiff establishes that while employer's policy/practice appears to apply to everyone equally, its actual effect is to disproportionately limit employment opportunities for a protected class.

REMAND

(v.) to send or order back; in law, to send back to jail or to a lower court

Age Discrimination in Employment Act of 1967 (ADEA)

): Prohibits employers from refusing to hire, discharging, or discriminating in "terms and conditions" of employment on basis of employee/applicant being age 40 or older.

Civil Rights act if 1866

- additional protection against racial discrimination - all citizens of the US shall have the same right to inherit, purchase, lease, sell, hold, and convey real and personal property

How many states sill use the at-will doctrine as a default rule

49/50 -Montana as the single state holdout

tort

A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract. intentional or outrageous conduct on the part of the employer and causes emotional distress to the employee (wrongful discharge) ex. making an employee choose btw a male companion or position - emotional distress

subpoena

A court order directing testimony on a specific matter.

summary judgement

A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in the case. Summary judgment is granted when - on the undisputed facts in the record - one party is entitled to judgment as a matter of law.

Bona Fide Occupational Qualification (BFQO)

A defense to a charge of discrimination where it is permitted if the employer can show it's a BFQO. Must be JOB RELATED and a BUSINESS NECESSITY.

Employment-at-will

A diminishing common law doctrine whereby an employee can be terminated for good cause or for no cause.

wrongful discharge

A discharge prohibited by statutory or common law.

writ of certiorari

A discretionary device used by the US Supreme Court to choose cases it wishes to hear.

summons

A document that commences a civil action or proceeding that asserts jurisdiction, and requires an appearance or an answer.

Agency

A fiduciary relationship that results from the mutual consent for one party (agent) to act on behalf of another (principal).

class action

A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Public Policy

A legal concept intended to ensure that no individual lawfully do that which has a tendency to be injurious to the public or against good. Public policy is under minded by anything that harms a sense of individual rights.

Agent

A party who agrees to act on behalf of another person.

Principal

A party who employs another person to act on his/her behalf.

Agency by Ratification

A person misrepresents that he/she is an agency when they're not and the principal accepts the unauthorized act.

employer

A person or business that pays a person or group of people to do his or her work, or to work on his or her behalf ex: employment agencies, labor organizations, joint labor-mgnt committees For legal purposes: -exercise control over employees -has responsibility for payment of wages -holds the power to dismiss employees

whistle-blower

A person, often an employee, that reveals illegal activity or wrong doing engaged in by an individual, employer or company.

deposition

A pretrial discovery procedure whereby the testimony of a witness is taken outside the open court, pursuant to permission by the court to take testimony from a witness.

Alternative dispute resolution (ADR)

A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.

appeal

A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the "appellant;" the other party is the "appellee."

Property right

A right based on a personal, tangible, intangible, or real property interest.

public policy

A specific statement of goals, objectives or requirements contained in legislation or court decisions that is generally applicable.

just cause

A standard used to determine whether or not an employee was properly disciplined or discharged.

Stare Decisis

A system of using legal precedent decision usually followed in when similar cases arise

Appellant and Appelle

A the court of appeals or Supreme Court level, the first name reflects who appealed the case to that court. It may or may not be the party who initially brought the case at the district court level. At the court of appeals level, the person who appealed the case to the court of appeals is known as the appellant and the other party is known as the appelee.

bench trial

A trial without a jury, in which the judge serves as the fact-finder.

per curiam

A unanimous, unsigned, usually brief decision by the court

brief

A written statement submitted in a trial or appellate proceeding that explains one side's legal and factual arguments.

concerted activity

Actions undertaken by a group of employees for mutual action verses an employer.

Quid Pro Quo Harassment

Actual; employer/supervisor makes submission to sexual conduct a condition for receiving employment benefits; employer retaliates via adverse job action for employee's refusal to respond to sexual advances

National Labor Relations Board (NLRB)

Administrative agency formed to interpret and enforce National Labor Relations Act.

Explain how the industrialization and urbanization of the United States in the late 19th century changed the nature of employment.

Affected patterns of work, employment relationships, and standards of living.

Apparent Agency

Agency that arises when a principal creates the appearance of an agency that in actuality does not exist a/k/a agency by estoppel because the principal is estopped from denying the agency relationship. It's the principal's actions that create an apparent agency.

Bona Fide Occupational Qualification (BFOQ),

Allows employer to discriminate in hiring on basis of gender, religion, or national origin but not race/color, when doing so is "reasonably necessary" for performance of job.

Alpha Co. has 200 full-time employees. It plans to close one of its locations in 30 days, which will result in the loss of 50 jobs. Alpha Co. is exempt from the notice requirement under the WARN Act if

Alpha Co. is seeking needed capital and reasonably believes that an announcement of a layoff would prevent it from obtaining the capital.

exposure

An act or omission which may result in a lawsuit.

Implied Agency

An agency that occurs when a principal and an agent do not expressly create an agency. The agency may be implied/inferred from the conduct of the parties.

implied contract

An agreement absent a written contract that is based on statements of employers, handbooks, or hiring practices which is construed by a court based on the behavior of the parties.

At-Will-Employment

Can be fired at any time for good reason, bad reason or no reason at all.

Types of Union Elections

Contested - elections contested by the employer and are required to be supervised by the NLRB. Consent - Management doesn't contest, no NLRB supervision. Decertification - Held of employees no longer want to be represented by a union, must be supervised by NLRB.

dismissal with prejudice

Court action that prevents an identical lawsuit from being filed later.

Merit

Criterion-related validity, content validity and cosntruct validity.

An employee who testifies at the trial of a co-worker's Title VII claim against her employer would have what type of claim if she was fired for doing so

retaliatory discharge

Family and Medical Leave Act (FMLA)

right of employees to take unpaid leave for family reasons up to 12 weeks per year; reasons include birth of child, care of child/parent/spouse with serious health condition; serious health condition that renders employee unable to do work; urgent need because family member in US Army is deployed

remand

send back down

retroactive seniority

seniority that dates back to the time the claimant was treated illegally

employers defense

show action was legit

an employers responsibilities increase when

someone is an employee

quid pro quo harassment

submission to or rejection of sexual conduct is used as a basis for employment decisions

if eeoc does find merit

sue with you, dont find merit-right to sue letter

Although laws and legal protections are granted to employees, they seek to make

the "power relationship" between employer and employee one that is fair and equitable.

defamation

the intentional communication of false statements that damage character or reputation without the employees consent (usually to prospective employers)

If the EEOC doesn't file suit,

the plaintiff still has the right to file a lawsuit on their own behalf.

wrongful termination

the termination of an agency contract in violation of the terms of the agency contract.(or exception to at will doctrine) The nonbreaching party may recover damages form the breaching party

Hostile Work Environment

threat of retaliation; employee must show frequency of conduct, physically threatening or humiliating nature, and that it unreasonably interferes with employee's work performance

Employee Retirement Security Act of 1974 (ERISA)

to protect workers covered by private pension plans.

equal employment opportunity

treatment of individuals in all aspects of employment in a fair and non biased manner

relief

trial court decision by district court based on merit of claim

federal courts consist of

trial courts (U.S. District Court), courts of appeal (U.S. Circuit Court), and the U.S. Supreme Court

state courts consist of

trial, intermediate court of appeals, state supreme court

examples of independent contractors

umpire, cleaner

although an employee is generally free to design contract terms of any kind as long as they are applicable of laws, courts and legislatures sometimes determine that certain types of agreements btw employer and employee are

unenforceable

sexual harassment

unwelcome advances, requests for sexual favors and other verbal or physical conduct of a sexual nature in the working environment

mediation

voluntary- both sides must agree attempts to find middle ground and compromise

Third Party interferers

what employers can be held liable for if an allegation that they have discriminatorily interfered with the employment relationship between the charging party (person filing claim) and his/her actual employer (ex. a staffing firm). ex*employers asks staffing firm to replace receptionist with different race to try an avoid discriminatory charges.

when are non us citizens protected by title VII

when in US but not outside but do not get back pay if discrim against

When does congress usually pass employment related laws

when it believes that there is some imbalance of power between the employee and the employer.

when is it likely for a defendant to make a motion to dismiss?

when they thing there is not enough evidence to constitute a violation of law granted-favor defendant denied-plaintiff case can proceed to trial decision can be appealed to next court

the legal test of employment determination is

whether there is a right to direct and control the means and details of the work

contingent workers

worker, whose job with an employer is temporary, is sporadic or differs in any way from the norm of full-time employment -hired through staffing firm temporary, seasonal, part-time, independent contractors

Occupational Safety & Health Act (OSHA)

workplace must be free from recognized hazards that cause death or serious harm

can a person be fired for a refusal to work overtime in consideration of family obligations

yes, legal basis for termination

Occupational Safety and Health Act (OSHA)

§654(a): General Duty: o Each employer shall furnish to the employees, employment and the place of employment that is free from hazards that are likely to cause serious harm or death. o Enforced?? • Sec. of Labor can bring a claim of violation against an employer. The employer has 15 days to file a notice of contest. If the OSH Commission finds against the employer than there is judicial review in the U.S. Ct of Appeals. A wide variety of sanctions can administered: Fines or even criminal charges.

COBRA Insurance

• Insurance is much cheaper when a pool of employees are paying premiums for it. • When you get fired, you can purchase an extension of the similar benefits you got from the employee pool of the company you previously worked for. • You have 18months to find a new employer. • Allows people to move from job to job and still get valuable benefits.

jim crow laws

Laws enacted by southern states that discriminated against minorities, primarily blacks, as second class citizens. by creating 'whites only' - schools - theaters - hotels - and other public accommodations was accepted b early on by national government

legalese

Legal language that is difficult for the general public to understand.

"Quid Pro Quo" Sexual Harassment

Makes employment decisions related to individual dependent on submission to such conduct.

MONTANA Wrongful Discharge from Employment Act

More pro-EE, codifying MT common law, punitive damages available. Go to arbitration only if both sides agree to. Good cause defined as "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of ER's operation or other legitimate business reasons" (Narrower and more pro-EE than uniform Act above). EE may recover wages and benefits for 4 years and recover AND recover punitive damages in situations of ER fraud/malice. EE must exhaust internal procedures before filing wrongful discharge suit under the act.

Termination of Agency by Acts of the Parties

Mutual Agreement Lapse of Time Purpose Achieved Occurrence of a specified event

Collective bargaining (Definition)

Negotiations between employer and group of employees to determine conditions of employment.

Forms of Title VII Actions: Disparate-impact discrimination

Occurs when an employer discriminates against an entire protected class.

Forms of Title VII Actions: Disparate-treatment discrimination

Occurs when an employer treats a specific individual less favorably than others because of that person's race, color, religion, sex or national origin.

U.S. Supreme Court System

Once a case is heard by the U.S. Supreme Court, there is no other court to which it can be appeal..

Respondent

One against whom a case is appealed at the Supreme Court

Appellee

One against whom an appeal is brought

Petitioner

One who appeals a case to the Supreme Court

Appellant

One who brings an appeal

implied covenant of good faith and fair dealing exception to the at-will doctrine is

Only 13 states recognize this covenant as an exception to at-will employment

WARN (Worker Adjustment and Retraining Notice) Act

Only applies to employers w/ more than 50 employees. WARN act requires that employer give employees either a 60 day notice of either a reduction of intent to close, or if 60 days is not provided, to provide the equivalent in pay for 60 days employment. 2 exceptions: 1) prove they were seeking alternative capital import or business that would avoid or postpone the shutdown, and that giving notice would interfere w/ ability to raise capital, 2) Bus circumstance is not reasonably foreseeable, if closing is not foreseeable, than business doesn't have to give 60 day notice.

Empty State- Nobody's Market (Collins)

Only direct and specific acts of govt officials acting intentionally are govt action. Govt can't be responsible for every persons power, must draw a line to limit pub responsibility

Requirements For Establishing A "Disparate Treatment" Discrimination Case

Plaintiff-employee must demonstrate a "prima facie" case of discrimination. Defendant-employer must articulate a legitimate, nondiscriminatory business reason for the action. Plaintiff-employee must demonstrate that the reason given by the defendant-employer is a "mere pretext".

discovery

Procedure used to reveal facts and proposed testimony prior to a trial so as to avoid surprise.

Equal Pay Act of 1963

Prohibits an employer from paying workers of one gender less than wages paid to employees of opposite gender for work that requires equal skill, effort, and responsibility.

Forms of Title VII Actions: Sexual Harassment

Refusing to hire or promote someone unless he/she has sex, lewd remarks, touching, intimidation, posting of indecent materials, etc.

Motion to dismiss

Request by a defendant for the court to dismiss the plaintiff's case

The Fair Labor Standards Act (FLSA)

Requires that a "minimum wage" , overtime, employee record keeping, and child labor of specified amount be paid to all covered Employees, Specified minimum wage amount periodically raised by Congress, Mandates that employees who work greater than 40 hours in a week be paid no less than one and one-half times regular wage for all hours worked beyond 40.

Retaliatory Discharge

Retaliatory Discharge is a broad term that encompasses terminations in response to an employee exercising rights provided by law.

Cause of Action

Rights provided by law for a party to sue for remedies when certain legal rights to violated

an employer who maintains an employee must pay what taxes

SSI, FICA excise tax, railroad retirement tax act withholding amounts, federal unemployment compensation, IRS Federal income tax withholdings, medicare, and state taxes INDEPENDENT CONTRACTOR has to pay these own their own.

OSHA (Process)

Sec of Labor files suit against ER, ER may appeal to a 3 member OSHA commission who reviews de novo, then appealable to circuit court of appeal, then supreme court.

How Unions are Organized

Section 7 of the NLRA - gives employees the right to join together to form a union. The appropriate bargaining unit must be defined before the union can petition for an election. If 30% of the bargaining unit express interest, the NLRB can be petitioned to investigate and set an election. Once a union has been elected, the employer and union discuss the terms of employment of union members and try to negotiate a contract (collective bargaining).

Illegal Interference with an Election

Section 8(a) of the NLRA makes it an unfair labor practice for an employer to interfere with, coerce, or restrain employees from exercising their statutory right to form and join unions. Section 8(b) of the NLRA forbids unions from engaging in unfair labor practices that interfere with a union election (coercion, physical threats).

Whistle Blowing

Some states have included terminations based on whistle blowing under the public policy exception. Whistle blowing occurs when an employee reports an employer's wrong doing

Worker's compensation

States require employers to purchase insurance to cover wcomp claims. The claimant must prove that the injury arose out of and in the course of his/her employment. Workers cannot sue their employers in court for damages (exclusive remedy) unless the employer intentionally injures a worker.

McDonnell Douglas Corporation v. Green

Supreme Court case establishing the framework for the presentation of proof for a claim of intentional discrimination. set two precedents- how to establish a prima facia case of discrim established a swinging or shifting burden of proof

inevitable disclosure

The theory under which a court may prohibit a former employee from working for an employer's competitor if the employer can show that it is inevitable that the former employee will disclose a trade secret by virtue of her or his position.

example of an anti-discriminatory statute

Title VII

No-fault

WC paid regardless of fault of employer or safety of workplace

tort

When one person causes injury (physical or otherwise) to another, for which a court will allow a civil action. violation of a duty other than one owed due to contract.

T/F You do not have a right to your job

True

complaint

When used in a non-legal context it is an employees disagreement over a management policy or action concerning working conditions or wages. In a legal context it is an allegation of wrongdoing and a request for remedy.

Express Agency

Where the principal and agent express agree in words to enter into an agency agreement. The agreement may be oral or in writing unless the Statute of Frauds requires it to be in writing.

Worker Owners

Workers doing the work of employees but who happen to be the owners of the investment. (True Worker owners called Cooperative Ownership

Low Velocity Markets

Workers say with the same company for most of their career and advance within.

facially neutral policy

Workplace policy that applies equally to all appropriate employees if such a policy impacts protected groups more harshly than others, illegal discrim may be found if can show requirement is legit business necessity

interrogatories

Written questions asked in a discovery procedure to a party having information of interest in the case.

forum selection clause

a clause in a contract that identifies the states law that will apply to any dispute that will arise under the contract

affirmed

a judgment by a higher court that the judgment of a lower court was incorrect

REVERSE

a judgment by a higher court that the judgment of a lower court was incorrect and should be set aside

cause of action

a legal claim

IRS 20 factor analysis

a list of 20 factors to which the IRS looks to determine employee status -list determined from results of court judgements just an analytical took, not the legal test for determining

plaintiff

a person who brings an action in a court of law

disability

a physical/mental impairment that substantially limits one or more of the major life activities

common law of agency test

a test used to determine employee status, along with considering other factors, it focuses on who has the right to control the work -leading test to determine status -employee considered common law property of the master, therefore governed by property law rather than contract *an employer may just have the right or ability to control the work and considered employee -used to determine employee status in connection with employment taxes and fed taxes

The IRS 20-factor analysis test is

a tool managers may use in determining whether a worker is an independent contractor or an employee. -not a legal test

freedom to contract

ability to enter into any kind of agreement that you want,Can be written or verbal. Employee may choose to work, or not to work for an employer and vice versa (Employer hire or not hire.)

WARN applies to

all but small employers and public employers

supreme court decisions apply to

all jurisdictions, and all courts must follow this precedent

Absolute liability

always held accountable

non-compete agreementor covenant not to compete

an agreement by the employee not to disclose the employer's confidential info or enter into competition with the employer for a specified period of time and within a specified region

Equal Pay Act of 1963

an employee may not be paid at a lesser rate than employees of the opposite sex for equal work.

Pregnancy Discrimination act of 1978

an employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant.

public policy exception.

an exception to at-will employment that occurs where an employee is terminated for refusing to perform an action that advances a policy or statute (looks at law to judge)

Can the hirer of an indep contractor be liabe for neglicent hiring of the contractor

an injured employee of an independent contractor may not bring a negligent hiring action against the hirer of the contractor. employees of an independent contractor should not be permitted to bring a negligent hiring action against the hirer of the contractor bc that permitting recovery would give employees an unwarranted windfall.

When may your employer choose to fire you?

at any time, even for reasons that seem unjustified, as long as the termination is not in violation of a contract or protected class. Good reason, bad reason, or even no reason, as long as it isn't an illegal reason.

reasonable accommodation

attempt by employers to adjust, without undue hardship, the working conditions or schedules of employees with disabilities or religious

damage award that represents wages lost as a result of unlawful conduct.

back pay

why does the third party harmed in a vicarious libality suit usually go after the employer?

bc the agent doesn't have the funds to compensate for harm, but agent could be required to reimburse the employer, but employer usually just writes this off as an expense

why is customer pref not a BFOQ

bc would eliminate the need for title vII and then have to do everything according to customer needs/wants could be a defense for anything

binding agreement

bind by an obligation

arbitration

chooses one side or the other

egregious discrimination

clearly wrong

three tests used by courts to determine whether employee or indep contractor

common law of agency IRS 20 factor analysis economic realities test

front pay

compensation for future economic losses arising from employment discrimination that cannot be remedied by traditional relief, such as hiring, promotion, or reinstatement.

punitive damages

damages in excess of compensatory damages that the court awards for the sole purpose of deterring the defendant and other from doing the same act again

what kind of "employee's" does title VII not cover

discrimination against independent contractors -employers will also not be liable for most torts committed by an indep con. within the scope of the working relationship

in alleging discrimination, an employee plaintiff must use one of what two suits

disparate impact/disparate treatment under title VII

BFOQ is a defense against

disparate treatment cases, showing that it is reasonably necessary for the employers particular business. only available for gender, religion, national origin. can be age- bus drivers or pilots (skills begin to deteriorate at a certain age) immutable characteristic- one that cant change

describe the governing of an at will doctrine

each state is free to make own laws for it including exceptions

what kind of tort constitutes workers comp (tort liabilities)

emotional distress caused by discharge, but not just emotional distress alone defamation invasion of privacy (searches purse and fires her-wrongful termination)

Disparate Impact

employee must show that an employment practice, although neutral on its face, disadvantages a protected group; employer must show that practice is job-related and consistent with business necessity which must relate to job performance

Bona Fide Seniority or Merit Systems

employer can lawfully apply different standards of compensation or terms/conditions of employment

example of pretext explanation

employer defense-did not hire bc engaged in unlawful activity PRETEXT-show that employer rehired one of different race who had engaged in similar unlawful activities

Disparate Treatment

employer intentionally discriminated through adverse employment action; related retaliation; employer must present evidence of legitimate, non-discrimnatory grounds for decision; employee must prove grounds were only a pretext for intentional discrimination

Immigration Reform and Control Act

employers prohibited from knowingly hiring someone not authorized to work in US; business with at least 4 employees can't discriminate on basis of national origin/citizenship

Workers' Compensation (WC)

employers required to obtain insurance for income and medical expenses for employees who suffer work-related accident or illnesses

who does title VII apply to and what does it prohibit

employers,unions, joint labor and mgnt commitees, employment agencies, all private employers employing 15+, fed,state,local govts and prohibits them from discriminating against employees

federal document used by employers to verify an individual's eligibility to work in the United States. The Immigration and Nationality Act (INA) is the federal law that imposes an obligation on employers to verify an individual's eligibility to work, which requires the completion of this form.

employment eligibility verification (I-9) form

an appeal must be based on

errors of law

sarbanes-oxley act

established procedures for public companies regarding how they handle and report their finances

civil service reform act of 1978 includes the whistle blowers protection act which

expands [protection to fed employees who report gov't fraud, waste, and abuse does not apply to private sector workers

screening device

factor used to weed out applicants from the applicant pool

T/F all outsourcing relationships carry joint liability

false , many factors should be considered

reasons for retaliatory discharge

filing a workers comp claim sexual harassment joining a union

what was the last protected class added to title VII and why

gender, to be a deal breaker and stop passage

reverse discrimination

giving preference to members of protected classes to the extent that unprotected people believe they are suffering from discrimination

in order to file a discrimination claim one must

go through the EEOC and receive a right to sue letter, only after exhausting all administrative remedies

what case set forth disparate impact cases

griggs v. duke power -intelligence tests for higher positions but employees working in all other parts of company did not have to meet requirements (intent was to keep black to coal handling and whites to higher paying dept's)

Family and Medical Leave Act of 1993 (FMLA)

guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption or medical emergencies for themselves or a family member.

Jill is a marketing manager for Beta Co., located in a state recognizing at-will employment as well as its exceptions. Jill cooperates with a police investigation of her supervisor, Sam, who is being charged with the crime of burglary. The next day, Jill is fired for "not being a good team player." Based on these facts, Jill most likely:

has a claim for wrongful discharge based on the public policy exception.

an amendment to the Fair Labor Standards Act (FLSA) that requires employers to provide equal pay for substantially equal work.

Equal Pay Act of 1963 (EPA)

T/F Congress tries to manage who an employer hires and how they manage their employees.

FALSE Congress tries to avoid this.

The Employee Retirement Income Security Act (ERISA)

Federal law that sets minimum standards for most voluntarily-established pension and health plans in private industry to provide protection for individuals enrolled in these plans. Under ERISA, employers must provide pension/health plan participants, Plan information ("features and funding"), Assurances of fiduciary responsibility of those in charge of managing and controlling plan assets, Grievance and appeals process for participants to receive benefits from Plan, Right to sue for benefits and breaches of fiduciary duty.

Sexual Harassment

Includes unwelcome sexual advances, requests for sexual favors, and other verbal/physical conduct of a sexual nature that implicitly/explicitly makes submission a term/condition of employment.

A technical writer who is legally obligated to complete an assigned project, based on an agreement, and cannot typically be released "at-will. This person is most likely a

Indep contractor

work conditions for which a discrimination claim can be filed when an individual is subject to unwelcome, offensive, and pervasive objectionable comments or ridicule at the workplace based on her membership in a protected class, creating an atmosphere so intolerable a reasonable person is not expected to endure it. Within the context of sex discrimination, sexual harassment occurs when an individual is subjected to pervasive unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that creates such an atmosphere.

hostile work environment claims

what is the most exacting issue in determining employer status

how many employees

joint and several liability

legal concept that makes each partner in a partnership legally liable for all the debts of the partnership the worker may collect compensatory damages from either one or both of the entities combined if a wrong is proven.

due process

legal proceedings and procedures designed to protect individual rights and liberties.

reverse

lower courts decision is overturned

affirm

lower courts decision stands

judges v justices

lower courts, higher courts

conciliation

make mends

constructive discharge

making working conditions intolerable trying to force an employee to quit

mass layoff

mass layoff not resulting from plant closing that results in employment loss at one site of 500 or more employees during an 30 day period, or 50-499 employees if that is at least 33% of workforce at site

Disability (according to ADA)

mental or physical impairment that substantially limits 1/more major life activities

back pay

money awarded for time employee was not working (usually due to termination) because of illegal discrimination

group of people who share one or more social characteristics; may be the basis for a claim of national origin discrimination under Title VII.

national origin group or ethnic group

in majority of courts, are supervisors considered an employer?

no- therefore cannot be taken to court

aquitted

not enough evidence. Not guilty but not innocent. A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction.

economic realities test

one approach used by courts to distinguish between employees and IC, particularly in Fair Labor Standards Act cases. The focus on this test is on whether the person doing work is in business for herself and not dependent on a particular employer to engage in this line of work.

Which employees are excluded from WARN

ones who have worked less than 6 months of the prior 12 or who work less than 20 hours a week

what kind of employees have constitutional protections?

only where the employer is a PUBLIC entity * constitution protects against gov't action -ex. exercise of free speech (whistleblowing)

progressive disciplinary system

organizational disciplinary programs where the severity of the punishment increases over time or across the problem

retaliation claim based on an employer's imposition of an adverse action on an individual in response to the individual's decision to participate in a proceeding relating to a claim or to assist another individual in filing such a claim.

participation claim

Occupational Safety and Health Act of 1970 (OSHA)

passed to ensure safe working conditions.

compensatory damages

payment for the actual loss of income, emotional pain and suffering, or injury suffered by the patient

BFOQ

permissible discrimination if legally necessary for an employers particular business

Exhaustion of Administrative Remedies

person must attempt all available options within Admin Agency before trying to take to court

Progressive movement

reform effort, generally centered in urban areas and begun in the early 1900s, whose aims included returning control of the government to the people, restoring economic opportunities, and correcting injustices in American life.

american disabilities act of 1990

requires employees to make a reasonable accommodation for disabled people

Equal Pay Act of 1963

requires employers to pay women and men equal wages for equal work

Vicarious Liability of Employer

responsible for acts of supervisor/co-worker if employer knew or should have known of harassment and failed to take prompt and reasonable steps to prevent or remedy it; absolute includes acts of customer who harasses employee or other customer the liability on one party for the wrongs of another -if an employee causes harm to a third party while the employee(agent) is in the course of employment- waitress hitting suggestive customer over head w pitcher -not liable for actions of indep. contractors.

information that suggests particular conduct occurred but does not prove it definitively.

circumstantial evidence

also referred to as case law, the principles established by the courts through the issuance of judicial decisions.

common law

damages awarded to an individual for actual losses suffered.

compensatory damages

restricted policy

employer's intentional unequal treatment or evaluation by different standards of protected class members, protected class members receive unequal treatment or are evaluated by different standards

federal law that prohibits workplace discrimination based on age and age-related factors against individuals forty (40) years of age and older. applies to all entities or their agents that employ 20+ employees on each working day for 20 or more wks during the current or preceding calender year

Age Discrimination in Employment Act of 1967 (ADEA)

Americans with Disabilities Act (ADA)

Prohibits discrimination against employees and job applicants with disabilities, Requires employers to make "reasonable accommodations" to the known physical/mental "disabilities" of an "otherwise qualified" person with disability, unless necessary accommodation would impose "undue burden" on employer's business.

The Family and Medical Leave Act (FMLA)

Requires certain employers to establish policy that provides all eligible employees with up to 12 weeks of unpaid leave during any 12-month period for specified family-related occurrences (Examples: birth/adoption of child, care for seriously ill spouse/parent/child).

The Occupational Safety and Health Act of 1970 (OSHA)

Requires every employer to "furnish to each of his employee, employment free from recognized hazards that are likely to cause death or serious physical harm". Also is responsible for setting safety standards under OSHA. The Occupational Safety and Health Administration is also responsible for enforcing the Act through inspections and levying of fines against violators.

federal law that prohibits discrimination against qualified individuals with physical and mental disabilities. applies to all employers

Americans with Disabilities Act of 1990 (ADA)

federal law that, among other things, subjects employers to liability for adverse employment decisions that are motivated by both legitimate and discriminatory considerations (see mixed motive). The Act also expands the types of damages that may be awarded for intentional discrimination claims to include compensatory and punitive damages.

Civil Rights Act of 1991

Electronic Communications Privacy Act (ECPA) of 1986

Employees' privacy rights extend to electronic forms of communication, including e-mail and cellular phones, ECPA outlaws intentional interception of electronic communications and the intentional disclosure/use of information obtained through such interception "Business-Extension" exemption allows employers to monitor employee e-mail and telephone conversations in the "ordinary course of employment".

federal law that prohibits workplace discrimination based on genetics and genetic information. GINA also prohibits the collection of genetic information except under very limited circumstances.

Genetic Information Nondiscrimination Act of 2008 (GINA)

Hostile Work Environment" Sexual Harassment

Has the purpose/effect of creating an intimidating, hostile/offensive work environment.

Seniority system legitimate

If System applies equally to all persons, Seniority units follow industry practices, Seniority system did not have its genesis in discrimination; and System maintained free of any illegal discriminatory purpose.

absence of religious beliefs, which falls within the scope of beliefs protected under Title VII's prohibition against religious discrimination.

atheism

employer's defense to an employment discrimination claim that illustrates the business necessity of considering an individual's protected class status, a consideration that otherwise would be prohibited. Race and color are never considered BFOQs.

bona fide occupational qualification (BFOQ)

employer's defense to an employment discrimination claim that illustrates the business necessity of considering an individual's protected class status, a consideration that otherwise would be prohibited. Race and color are never considered BFOQs. (Hiring female janitors for female locker room)

bona fide occupational qualification (BFOQ)

plan that provides enhanced benefits to employees based on their length of employment and is permissible, despite the disparate impact it might have on members of a protected class, provided the purpose of setting up or administering the plan is not to produce a discriminatory result.

bona fide seniority system

showing by an employer that a practice or policy is essential to its operations despite its disparate impact on members of a protected class.

business necessity

group of principles that govern the relationship between a government and the people it represents.

constitution

don't ask don't tell repeal act of 2010

enacted to end ban on gay or bisexual persons openly serving in the military, established to prevent members of the military from being dishonorably discharged for being gay so long as they did not openly reveal sexual orientation

Workers' Compensation Laws

State laws that provide financial compensation to employees or their dependents when covered employee injured/killed on the job. To recover workers' compensation benefits, injured party must demonstrate: He/she is an employee, Both employer and employee are covered by state workers' compensation program, Injury occurred "on the job".

rules promulgated by federal and state agencies that have the power delegated to them by Congress or a state legislature. The rules issued by the Department of Labor (DOL) relating to how the Fair Labor Standards Act (FLSA) is applied are examples of administrative regulations.

administrative regulations

rule that allows the consideration of a legitimate reason for an adverse employment decision that is discovered after the adverse decision was imposed for a discriminatory reason. Although after-acquired evidence will generally not bar recovery, it is often considered by a court when determining the appropriate damage award for discriminatory conduct.

after-acquired evidence rule

affirmative obligation imposed on an individual to make a reasonable effort to limit any damages incurred. A terminated employee would likely be obligated to mitigate her damages in a wrongful termination claim by seeking alternative employment during the time during which his case is being litigated to reduce the amount of back pay that might be awarded.

mitigation of damages

motive for an employment decision that is based on both legitimate and discriminatory considerations and may impact the amount of damages awarded. See Civil Rights Act of 1991.

mixed motive

retaliation claim based on an employer's imposition of an adverse action on an individual in response to the individual's conduct that challenges employer behavior believed to be discriminatory.

opposition claim

document from the Equal Employment Opportunity Commission (EEOC) that provides an individual with the right to file a workplace discrimination claim in a federal court.

right to sue letter

four fifths rule

rule of thumb by EEOC, there is an impact when the selection rate for any racial, ethnic or sex class is less than 4/5 the highest selection rate

fair employment practices

state and local laws governing equal employment opportunity that are often more comprehensive than federal laws

time period within which an individual can file a claim asserting a legal violation occurred under a particular statute.

statute of limitations

laws passed by Congress and state legislatures.

statutory law

bona fide occupational qualification

suitable defense against a discrimination charge only where age religion sex or national origin is an actual qualification for performing the job

validity

when using a test or other selection instrument to select employees, employers must be able to prove that the selection instrument bears direct relationship to job success

business necessity

work related practice that is necessary to the safe and efficient operation of an organization

Pregnancy Discrimination Act of 1987

Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy

Procedure For Filing A Claim Under Title VII of the Civil Rights Act

Charge Filed With EEOC, EEOC Conciliation Attempts, EEOC "Right-to-Sue" Letter.

Federal Unemployment Tax Act (FUTA

Created state system that provides unemployment compensation to qualified employees who lose their jobs.

Employment-At-Will

Means that any employee not employed under a contract/collective bargaining agreement may quit for any reason/no reason at all, with no required notice to employer. Also means employer may fire employee at any time, with no notice, for almost any reason.

. Requirements For Bringing A Successful Claim Under ADA

Plaintiff must show he/she meets all of the following: Has a disability, Was "otherwise qualified" for the job, Was excluded from the job because of disability.

employment discrimination claim under Title VII (or another workplace anti-discrimination law) alleging that an employer engaged in intentional discrimination based on an individual's membership in a protected class. treating two or more same employees differently, in similar situated instances, based on some protected class (men fighting vs. women fighting or requiring ONLY mexicans to take a drug test)

disparate treatment

guidelines on employee selection procedures

document published to assist employers in complying with federal regulations against discriminatory actions

damage award that represents future wages from the time a judgment is made until reinstatement or until a date certain if reinstatement is not possible.

front pay

affirmative action

goes beyond EEO by requiring organizations to comply with the law and correct past discriminatory practices by increasing the numbers of minorities and women is specific positions

employer's justification for the making of an adverse employment decision that is actually a coverup for the true discriminatory motivating factor.

pretext

requirement for an applicant or employee to show both that the employer's explanation for making an adverse employment decision was untrue and that the true motivating factor was discriminatory.

pretext-plus

individual's initial burden of proof when asserting an employment discrimination claim.

prima facie case

workforce utilization analysis

process of classifying protected-class members by number and type of job they hold

limitation on an employer's right to terminate an employee if it was reasonable for the employee to act in reliance on the employer's promise that suggested some degree of job security. Under this theory, the promise will be enforced if injustice can be avoided only by enforcement of that promise.

promissory estoppel

employee conduct that generally cannot be the basis for the imposition of an adverse employment action because the behavior stems from a legal right.

protected activity

group of people who share a common characteristic that entitles them to protection from discriminatory and harassing conduct under Title VII or another anti-discrimination law.

protected class

damages awarded to punish an employer for engaging in inappropriate conduct.

punitive damages

alteration made to the working conditions of a qualified individual with a disability or for an individual to engage in religious conduct or practice that must be provided unless it will impose an undue burden on the employer.

reasonable accommodation

adverse impact

rejection of significantly higher percentage of a protected class for employment, placement, or promotion when compared with a non-protected class

broad term that covers all aspects of religious observances, practices, and beliefs. Religion is a protected class under Title VII.

religion

protected behavior under TitleVII for which an employer might be required to provide a reasonable accommodation, provided the accomodation does not impose an undue burden on the employer. Praying is an example of a religious practice.

religious conduct or religious practice

employer for which there is a limited exception to the prohibition against religious discrimination under Title VII that permits it to consider an individual's religion when making employment decisions.

religious corporation

term used for the displaying of or speaking about religious content, which is protected under Title VII's prohibition against religious discrimination.

religious expression

employer's imposition of an adverse employment decision in response to an employee's assertion of a right under Title VII or another antidiscrimination law, or an employee's decision to oppose an unlawful employment practice. A retaliation claim may also be filed if an adverse action is imposed in response to an individual's attempt to assist another person in asserting that person's legal rights. Retaliation claims may be filed in other contexts beyond the scope of Title VII and other federal anti-discrimination laws.

retaliation

hostile environment

unwelcome sexual conduct has the purpose/effect of unreasonably interfering with job performance/creating an intimidating, hostile, or offensive working environment

workers compensation claim

-cover job related injuries and death -no fault liability -90% of us workers

what three conditions, according to the Uniform Guidelines on Employee Selection Procedures, that must be met in order to be considered an applicant

-employer has acted to fill an open position -individual followed employers standard procedure for submitting application -individual indicated an interest in the particular position definition: someone who has indicated an interest in being considered for employment

what constitutes an independent contractor

-perform nonessential business activities -usually dont need training, considered experts in field -work whatever hours they choose -free to subcontract and delegate own staff -work on project by project basis -do not spend much time with one company, work for multiple clients -free to work offsite and own hours -not required to provide updates or reports -paid for results not hours worked -pay for own expenses and not reimbursed -use own tools -risk nonpayment if results not as desired in contract -advertise services to potential clients -legally obligated complete projects according to contract, cannot up and quit without liability

what constitutes an employee

-work can be specified -they perform central functions of the company -trained for job -must comply with employer requirements -little control -schedule determined by employer -must do tasks hired for -open ended relationship with company -expected to devote all working hours to employer -usually required to work on site -may be asked to provide reports -paid at fixed intervals -expenses incurred usually reimbursed by employer -company provides supplies -expect steady paychecks -do not typically market themselves as available for other work -can quit at any time (at-will)

Define employment-at-will in your own words. Why did this doctrine become viewed as harsh, immoral, or unfair, from an employee's perspective?

...

How does a "Whistle-Blower Law" serve to effectuate good public policy?

...

Identify three (3) reforms initiated during the Progressive Era.

...

What is retaliatory discharge?

...

Why are employers likely to resist or attempt to avoid requirements to demonstrate "just cause" before terminating an employee?

...

Cooperative Ownership

1) 1 wrker = 1 share = 1 vote. All ownership is by owners. 2) Decisions/majority votes, often hire separate management. 3) Fire/Buyout - Workers fired by majority vote and must be bought out. 4) Termination = Any time a worker is bought out it must be at Market Value. 5) Profit/Loss per share - Workers share profits and losses for earnings. 6) Subject to state and federal laws for employees.

FMLA (Family Medical Leave Act)

1) Applies to ER's with more than 50 employees. 2) Applies only to EE's who worked at least 1250 hours during a year. 3) Allows for private suits for violations. Similar to NRLA where the Sec of Labor can take over suit if the person does not have the means. 4) Act ensures care for self, child, pregnancy, spouse, parent - up to 12 weeks leave. 5) Serious illnesses - only leave for serious illnesses. 6) Intermittent - Don't need to take leave all at once. Serious illness of self or a dependent requires intermittent leave. 7) Must give notice to ER to use leave, ER can require doctors certificate specifying illness and reasons you cant work. ER can pay for up to 2 other opinions if they don't like the one you got.

JUST CAUSE (Reasons that justify firing someone)

1) Business judgment - Lost sales, need to fire someone; Fitness of employee to enterprise - Lazy, doesn't do well. 2) Disloyalty - Insuboridnation - If EE is disloyal, insubordinate or disruptive, this justifies employee termination. 3) Violence - Illegal - If EE is engaged in violence or illegality, these are good cause reasons for discharge.

ERISA (Characteristics)

1) Future Benefit Plans 2) Preempts State Laws, except health. Only present health benefits insurance is not preempted. 3) §404 - Fiduciary obligations - Duties of administrators is that they have fiduciary obligation to the participants. 4) §502 - Suits/Participant Beneficiary - Permits different suits under different circumstances on behalf of participants to ensure fund is acting properly.

Fair Labor Standards Act (Characteristics)

1) Minimum Wage set & anything over 40 is overtime. 2) Earnings >1/2 million 3) Exemptions - People with irregular hours are exempt from overtime provisions. 4) No preemption - State must be > minimum wage.

At-Will Employment With no specific provision in a contract then it is terminable at will for any reason or no reason at all.

1) Mobility at will. 2) Mutual- Freedom has to be mutual, EE can leave, ER can fire. 3) Bargaining power is irrelevant here. 4) Competition of Labor as commdoity - If bargaining power is irrelevant than competition is important.

At-Will-Employment Exceptions

1) Prom. Estoppel - A promise that meets the requirements. 2) Additional Considerations - EE offers add. considerations such as agreeing to do extra work or services in addition to normal tasks. 3) Implied in Fact K - Handbooks- If handbook promises discharge only for cause. 4) Implied in Law K - Includes a clause of good faith and fair dealing - Discharge for no reason or bad reason would be a violation of GF&FD. 5) Contract v. Public Policy - K discharge may be void as against public policy sounding as a K claim. 6) Tort v. Public Policy - Certain discharge is void against public policy sounding in tort, this allows both consequential and punitive damages. 7) Independent Tort involved in the discharge - Intentional infliction of emotional distress.

Worker's Compensation

1) State law - Workers comp is a state fund. State law requires you have one or the other. (State fund or self insurance) 2) ER -Either pay into state fund or self insure. Self insuring cheaper if you never have accidents otherwise the state fund is cheaper. 3) No tort claims unless gross negligence or Intentional harms by ER. 4) Sched of Damages - Tells what you get for what injuries. 5) Job caused illness or injury

Just Cause Legislation

1) Uniform Law Commissioner's Model Termination Act (1991) 2) Montana Wrongful Discharge from Employment Act

Illegal Strikes

1. Violent strikes (substantial damage to property) 2. Sit-down strikes (occupies premises) 3. Partial or intermittent strikes (work half day) 4. Wildcat strikes (no union authorization) 5. Strikes during 60-day cooling-off period 6. Strikes in violation of a no-strike clause

At Will Employment

An employee relationship where there is no contractual obligation to remain in the relationship; either party may terminate the relationship at any time, as long as the reason is not prohibited by law, such as for discriminatory purposes (unless a contract states otherwise) -gov't employees,employees under collective bargaining agreements, or employees who have an individual contract with employer generally not considered AT WILL (preexisting rules governing federal employee relationship)

executive order

An order issued by a public chief executive officer, usually the President of the US or a State Governor.

writ of certiorari

An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.

Covenant of good faith and fair dealing

Another exception to the presumption of an at-will- employment relationship is the implied covenant of good faith and fair dealing in the performance and enforcement of the employee's work agreement. this is an implied contractual obligation to act in good faith in the fulfillment of each parties contractual duties. denying fruits of ones labor (looks at actions between parties to judge)

Forms of Title VII Actions: Sex discrimination

Applies to men and women. The Pregnancy Discrimination Act forbids discrimination because of pregnancy, child birth or related medical conditions.

Petitioner and Respondent

At the Supreme Court level they are known as the petitioner (appellant) and the respondent (appellee)

employers defense for diparate treatment

BFOQ AUTHENTICTY- MEXICAN REST

Equal Employment Opportunity Commission (EEOC)

Before a plaintiff can file suit, the must first file a complaint with the EEOC.

Defenses to Claims Under Title VII of The Civil Rights Act

Bona Fide Occupational Qualification (BFOQ), Merit and Seniority.

Defenses To An Equal Pay Act Lawsuit

Bona fide seniority system, Bona fide merit system, Pay system based on "quality or quantity" of production, Any other factor(s) other than gender.

subcontractors

Companies or individuals who provide specialized obstruction activities, such as installation of heating, ventilating, plumbers, electricians, n air-conditioning systems,elevator systems, painting, carpet installation , and multitude of other building components. usually hired on by independent contractors to perform a task they specialize in

Termination of Agency by Operation of Law

Death Insanity War Bankruptcy of the principal Impossibility of performance

Motion for Summary Judgment

Defendant's request for the court to rule on the plaintiff's case based on the documents submitted, alleging there are no triable issues of fact to be decided. make a judgement based on documents provided dismiss-is a need for case to proceed can be appealed

Labor Law

Defined in terms of federal legislation, primarily the National Labor Relations Act, governs collective bargaining and union representation.

Standard of proof

Degree of proof required. In criminal cases, prosecutors must prove a defendant's guilt "beyond a reasonable doubt." The majority of civil lawsuits require proof "by a preponderance of the evidence" (50 percent plus), but in some the standard is higher and requires "clear and convincing" proof.

Taft-Hartley Act of 1947 (Labor Management Relations Act)

Designed to limit some of the powers unions had acquired under Wagner Act

Employment Law

Diverse body of state and federal law that regulates individual employment relations.

two part test that can provide a defense against discrimination claims as a BFOQ

Does the job require the employee to be one gender only?-playboy bunny Is ^ requirement reasonably necessary to the essence of the employers particular business? - business would be undermined if wrong gender hired BFOQ must be necessary- not just CONVENIENT

Unemployment Insurance Program

ERs pay in based on high rating, the more an ER fires an EE when EE not at fault, the higher the payments—this incentivizes and ER "searching" for cause when it may not exist. To qualify, 1) EE must work for 17 weeks, 2) register with state unemployment service, 3) and must be able and available for work (that is, go to unemployment office and tell them you are looking for a job). EEs may recover when locked out, but not when on strike (compare with food stamp/strike case, Lyng.) One is disqualified from receiving benefits if voluntarily unemployed, may not refuse suitable work without good cause. Good cause includes risk, skills, prior training, earning, distance from work, duration of unemployment.

Unemployment Compensation

Employer - Federal Tax Offset • Emplyer = Exper. Rated • Employee = 13 weeks at 50-60% of your wage. o MUST have been involuntarily terminated. Qualifications for unemployment • Worked 17 weeks • When terminated you must register and report to a state unemployment service office about your good faith efforts to find a job. • Then you must, at all times receiving benefits, be able and available for work. • Initial disqualification o Leave work without good cause attributable to the employer • Continuing disqualification o Refuse suitable work without good cause. o Not Suitable work when: required prior training, skills that you don't have; particular hardship associated; Wage $ is appreciably lower 20% to 50%; transportation issues (40+ miles) • Leased employees: When a job is finished you must go back and report that you are finished but are able and ready to work again, unless the employer says stick around and a new job is on its way.

Employee Privacy in the Workplace

Employer privacy policies should cover matters such as employer monitoring of telephone conversations and e-mails, surveillance policies, control of access to medical and personnel records, drug testing, lie detector tests, and ownership of computers and all issues unique to the electronic workplace.

Wagner Act of 1935

Enacted to encourage formation of labor unions and provide for "collective bargaining".

Occupational Safe and Health Act

Enacted to promote safety in the workplace and imposes recordkeeping and reporting requirements and request them to post notices, informing employees of their rights.

OSHA (29 USC 15)

Enforces job safety standards for workers. Compensation of workers for job injuries is left up to state law. However, legislative intent is to encourage ER's and EE's in efforts to reduce number of safety and health hazards at workplace. Const. power from commerce clause. OSHA commission established to do research (asbestos, etc) and provide grants to states to encourage state enforcement. As a general rule, ER's must make sure EE's are free from dangerous environments. OSHA can penalize ER's for $1-$7,000 a day for not remedying a violation on good faith of ER, gravity of violation, past compliance, and size of ER.

workplace rules that prohibit employees from speaking any language other than English while at work.

English-only rules

Wright Line Doctrine

General counsel must first establish a prima facie case that protected activity was a motivating factor. Once established, the burden shifts to the Employer to show by a preponderance of the evidence that it would have taken the same action even absent the prohibited motivation. If unable to make this showing, the employer is in violation of section 8a1

Landrum-Griffin Act of 1959

Governs internal operations of labor unions, Requires certain financial disclosures by unions, Establishes civil and criminal penalties for financial abuses by union officials, designed to protect employees from their own unions.

National Treasury Union v. VonRaab Facts: Raab Important part of customs svc job is seizing illegal drugs. Commissioner announced drug tests to be a condition of placement or employment for positions that 1. Involve direct drug interdiction or enforcement, 2. Req that they carry fire arms, 3. Req to handle classified material. Test results are confidential between EE and ER. Claim drug testing is overly intrusive.

Held: Ct upheld the constitutionality of drug testing for people involved in drug interdiction or who carried fire arms but not for confidential info. Customs employees have a diminished expectation of privacy.

federal law that prohibits employment discrimination based on an individual's citizenship status and prohibits employers from hiring individuals not authorized to work in theUnited States. The IRCAwasamended by the Immigration and Nationality Act (INA).

Immigration Reform and Control Act of 1986 (IRCA)

Amendment to the Immigration Reform and Control Act (IRCA) that prohibits employers from hiring individuals who are not legally authorized to work in the United States and requires employers to verify this eligibility through the completion of an employment eligibility verification (I-9) form. See employment eligibility verification (I-9) form.

Immigration and Nationality Act (INA)

defendant

In a criminal action, the person or party accused of an offense.

"Disparate Treatment" Discrimination

In all aspects of human resource management (hiring, firing, promotions, etc.), if candidate/employee discriminated against based on membership in a protected class, employee has actionable claim based on intentional discrimination.

due process

In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.

Title VII of the Civil Rights Act of 1964

Intended to eliminate job discrimination based on race, color, religion, sex, national origin. It prohibits discrimination in hiring, decisions regarding promotion or demotion, payment of compensation and fringe benefits, availability of job training and apprenticeship opportunities, referral systems for employment, decisions regarding dismissal, work rules, and any other "term, condition or privilege" of employment.

shifting burden of proof

Making a claim (saying hiring decision wasn't discriminatory) and expecting the opposite side prove it is false (show it is pretext and give evidence that it was discriminatory) An advocate challenges another to refute his argument rather than offer grounds in support of the claim When an allegation is made of disparate treatment, if defendant employer claims a legitimate reason for not hiring the plaintiff, the plaintiff must then show that the stated reason is merely pretext Occurs when the advocate of a claim maintains they have proven the claim simply because their opponent has not or cannot provide evidence to deny the claim Once disparate impact is found, the burden is then on the employer to prove that the pre-employment mechanisms are job related the burden shifts to the defendant to demonstrate that the same . . . action would have been taken in the absence of the protected activity.

Affirmative Defenses

Management took steps to address or prevent harassment

Defenses of charges of discrimination are

Merit, Seniority, and Bona Fide Occupational Qualifications.

Primary functions of NLRB include

Monitoring conduct of employer and union during an election to determine whether workers want to be represented by a union, Preventing and remedying unfair labor practices by employers/unions, Establishing rules to interpret the National Labor Relations Act.

employees counter

PRETEXT

social contract

People consent to government, and in return for protection of their natural rights -safety of products -insight on harmful ingredients -good service -compensated as told would be

High Velocity Markets

People moving from company to company throughout their careers to advance. Also involves high tech labor markets.

admissible

Pertinent and proper to be considered in reaching a decision. A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.

At-Will Employment: The Rule as Applied • No Termination or Just case = Good reason, bad reason, no reason at all. Exceptions?

Promissory estoppel • "Don't make any promises that an employee might be able to rely upon." Additional consideration • Just doing your job or going above and beyond is simply your consideration to receive wages. • Special consideration could mean: employee transfers something of value to employer (patent?) than just cause is needed for termination. Implied in Fact Contracts (Handbook) • Contract says nothing but at some point the employer introduces an employee handbook saying you can only be fired for three things. • Only interferes with employer prerogative if they issue it. Implied in Law Contracts (Good faith and fair dealing) • Only a few states will treat Emp Contracts the same as contracts under UCC. Otherwise they are distinct. • If the employer fires you in bad faith then the just cause is taken away. Breach of Contract - Violation (Public Policy) • What is public policy determines how much this interferes with employer prerogative. • If you bring this claim than you can only get breach of contract damages. Tort - Public Policy • Some jurisdictions limit discharge in violation of a public policy to being brought in tort actions. Independent Tort • Some circumstances where discharge itself (separate from any contract breach) forms the basis for a tort itself. (Assault, Int. Infl. Emotional distress, etc.)

Title VII of the Civil Rights Act (1964, As Amended by the Civil Rights Act of 1991)

Protects employees against discrimination based on: Race, Color, Religion, National Origin and Gender.

Federal Employment Discrimination Laws

Provide minimum level of protection for employees, States may give employees more rights, but not less rights, than they have under federal law (federal supremacy)

Exceptions to the Employment-At-Will Doctrine

Public policy - bad faith, malicious or retaliatory termination- violated a strong public policy Implied-contract - based on breach of promises not to discharge implied by employee handbooks, memos, policy statements or long-standing employment relationship Covenant of good faith and fair dealing - allege that discharge violated an implied promise to deal fairly with the employee Statutory exceptions - protect employees and prohibit certain discriminatory acts (WARN)

The two types of Sexual Harassment are...

Quid Pro Quo and Hostile work environment.

Forms of Title VII Actions: Race, Color and National Origin discrimination

Race-black, white, asian, hispanic. Color-color of person's skin. National origin-country of person's ancestors or cultural characteristics

Randall, a Courier company employee, is driving the company van from one office to another. In the course of the trip he sideswipes another vehicle. Which of the following statements would be correct in light of this case

Randall's employer would be vicarious liable for the harm caused by Randall to the third party.

Independent Contractors

The crucial factor in determining whether a person is an employee or an independent contractor is the degree of control that the principal has over that person. Can perform a task according to their own methods and not under the principals control regarding the physical details of the work. Principals are bound by the authorized contracts of their independent contractors. Only care about OUTCOME from IC. NOT eligible for workers comp. Don't get benefits. Employers dont have to pay taxes on them. Not protected by Title VII on discrimination. Right of Controls: 1) Controls details of work, 2) Type of work - stable EE or quick hire? 3) Tools - Who provides them? 4) Location - Where is the work done? 5) Skills - How difficult and unique is the skill? 6) Length of employment, 7) Form of pay - Hourly? Per job? 8) Is the work done in the regular course of the business?

burden of proof

The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant's guilt.

Prima Facie Case

The evidence that fits each requirement of a cause of action. something just looks wrong.

malice

The intentional commission of an unlawful act; evil intent.

case law

The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

jurisdiction

The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

common law

The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Defendant

The one being sued-a the district court level

Plaintiff

The one suing-at the district court level

appellant

The party who appeals a district court's decision, usually seeking reversal of that decision.

appellee

The party who opposes an appellant's appeal, and who seeks to persuade the appeals court to affirm the district court's decision.

patronage

The power to appoint to office or grant political favors.

Tort Liability to Third Parties

The principal (employer) and the agent (employee) are each personally liable for their own tortious conduct. The principal is liable for the tortious conduct of an agent who is acting within the scope of his or her authority. The agent only is liable for the tortious conduct of the principal if he or she directly or indirectly participates in or aids and abets the principal's conduct.

promissory estoppel

There is NO contract, but the defendant makes a promise that she can foresee will induce reliance; the plaintiff relies on it and it would be unjust not to enforce the promise. The defendant makes a promise.

federal law that prohibits workplace discrimination based on race, color, religion, sex, and national origin.

Title VII of the Civil Rights Act of 1964

title VII of CRA 1964

Title VII prohibits discrimination in employmenton the basis of race, sex, color, religion, or national origin. · Enforcement of Title VII be EEOC (not court-must get a right to sue letter from EEOC and then you can go to court) · 15 or more employees and engaged in interstate commerce exemptions are gov't owned corp's, indian tribes, Bona fide occupational private membership

Forms of Title VII Actions: Religious Discrimination

Title VII prohibits employment discrimination based on religion. The right is not absolute -- an employer has a duty to reasonably accommodate the religious observances as long as it doesn't cause an undue hardship. NOTE: Religious organizations may give preference in employment to individuals of a particular religion.

Ann is employed as an attorney at a law firm. Her boss regularly touches her in an unwanted sexual manner. Her complaints to the managing partner are ignored and the behavior continues. Ann quits. This is most likely a case of

constructive discharge

why may indep contractors have higher levels of performance and be more motivated?

control their own work and futures

in order to be considered an independent contractor,

courts and the EEOC will examine a variety of factors to determine the true meaning of the relationship btw the worker and organization

National Labor Relations Act of 1935 (NLRA)

created over distress by anti-union violence, to enforce labor laws and prohibit employers from penalizing workers who engage in union activity. Protects only employees, not indep contractors from unfair labor practices.

screening devices that have disparate impact

credit check arrest record unwed pregnancy ht/wt requiremnts educational requiremtns marital status conviction of crime unrelated to job performance (still can use device if shows that screening device is based on a legit business necessity)

why is the distinction of employee status important?

crucial from a financial perspective. many regulations require diff responsibilities from employers of employees and IC, it is imperative that an employer be confident in the classification of its employees.

Bona Fide Occupation Qualifications

if it applies for a business, allows employer to hire on basis of religion, gender, or national origin; not applicable to race

Retaliatory discharge claims have been

increasing

in a breach of agreement between and independent contractor and employer, who may be liable for damages?

indep contractor

Federal Unemployment Tax Act (FUTA)

is part of social security system that provides support to the unemployed.

OSHA Agency

issues standards regarding many workplace issues; may require medical & training records, injury & illness logs; may conduct surprise inspects; may impose fines

Americans with Disabilities Act (ADA)

prohibits intentional discrimination against or practices with disparate impact with respect to qualified individuals with "disabilities" as defined by act

federal whistle blower statute

prohibits retaliatory action specifically against defense contractor employees who disclose info pertaining to a violation of law governing defense contracts

National Labor Relations Act

protects employees and union members from unfair bargaining practices; requires employers to negotiate with labor unions

Consolidated Omnibus Budget Reconciliation Act (COBRA)

provides that former employees must be allowed to continue their health insurance for 18 months after leaving their job, but they must pay for the costs themselves.

E-RACE initiative

puts a renewed emphasis on employers hring and promotional practices

if an employer does not comply with WARN, an employee can

recover pay and benefits for the period for which notice was not given, up to a max of 60 days

how to establish a prima facie case

plaintiff was a member of a protected class plaintiff qualified for the job they sought The plaintiff was rejected in spite of being fully qualified After the rejection, the employer continued seeking for applicants with the plaintiff's qualifications

Age Discrimination in Employment Act (ADEA)

prohibits age discrimination for qualified workers age 40 and older

Older Workers' Benefit Protection Act (OWBPA)

prohibits age discrimination in providing employee benefits

Wrongful Discharge

prohibits an employer from firing a worker for a bad reason.

Wrongful Discharge and Public Policy

prohibits an employer from firing a worker for a reason that violates basic social rights, duties, or responsibilities. ex: refusing to violate a criminal statute on behalf of the employer, fulfilling a statutory duty, reporting violations of statute by employer. employers actions to fire based on bad faith, malice, or retaliation

The Age Discrimination in Employment Act of 1967 (ADEA)

prohibits discrimination against employees or job applicants who are at least 40 years old.

jury system improvements act

prohibits employers from discriminating based on jury service in federal courts

Americans with Disabilities Act of 1990 (ADA)

prohibits employers from discriminating on the basis of disability.

Title VII of the Civil Rights Act of 1964

prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. also prohibits Discrimination in the workplace, sexual harassment, and discrimination because of pregnancy. Prohibits staffing firms from illegally discriminating against workers in assignments and opportunities for employment. it permits employer exemptions on or around native american reservations to give preferential treatment to NA.

OSHA (EE's Job)

• An employee can submit an OSHA complaint and then OSHA is required to investigate. o Employee has a right to assist in investigation, participate in court, right to be informed, bring claim for injunction, bring a retaliation claim for being discharged or disciplined. o What should they do of they come upon a dangerous situation with no time to call OSHA? • Doesn't say in the Act. • Self-help.

FMLA (EE Qualifications)

• Employee has to show she has a serious health condition: Defined with reference to ADA: One which makes one incapable of undertaking the normal activities of life. • Employee must show that he incapacity prevents performing job duties. • Employee must give reasonable notice. If the employer requests documentation of that reason you are leaving, the employee must provide some doctors certificate that explains everything: • Diagnosis • Medical Facts on which it is based. • Reason it will impair the ability to do work. If the employer isn't convinced they can pay for up to two more independent medical examinations.

FMLA (ER Qualifications)

• Employers of 50 or more workers • Employees must have worked 1200 or more hours for an employer in the previous year. • Taken for birth or adoption of child, care for spouse or parent with serious illness, or your own serious illness rendering you unable to work. • Serious illness: Must be in patient care. • You can take up to 12 weeks. o If an employer refused to grant leave or re-employ you at your old or equivalent position, you can sue. • Usually recover lost wages and benefits

FLSA:

• Established a federal minimum wage and overtime procedures • Anything over 40hrs/week is overtime for all eligible employees. • Double time for holidays, and triple time for overtime worked on holidays. • Exempt Employees: o Professional Crabbers o Taxi drivers o Movie theater workers o GENERALLY: Just people who may work more than 40 hours one week but then at times they won't get 40 hours because of the market in their field. o Executives and administrative persons or professionals.

Workers Compensation

• Require workers to pay into an employee insurance fund. o Then we will make payments to the employer or employee based on a scheduled type of payment based on the incident. • On the flipside you give up all possibility of tort recovery if you file for worker's compensation. • PROBLEM: The schedules rarely get increased so the deterrence effect wears off as to employer conduct. Inflation causes living to go up and the payment schedules did not match. • One advance is that illness and disease that is caused and aggravated by the work environment are now included in worker's comp. • Each state has very limited exceptios when an employer may bring a tort action against an employee even with worker's compensation in effect.

Omnibus Crime Control and Safe Streets Act of 1968

Employers cannot listen to private telephone conversations of employees or disclose the content of those conversations, Employers may ban personal calls and monitor calls for compliance, provided that they discontinue listening to any conversation once they determine it is personal, Violators subject to fines of up to $10,000.

The Consolidated Omnibus Budget Reconciliation Act (COBRA)

Ensures that when employees lose their jobs or have their hours reduced to level at which they are not eligible to receive medical, dental, or optical benefits from their employer, employees have right to continue receiving benefits under employer's policy for up to 18 months by paying the premiums for the policy. COBRA does not apply if: Employee fired for "gross misconduct"; or Employer decides to eliminate benefits for all current employees.

federal agency charged with enforcing a number of federal anti-discrimination employment laws, including Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

Equal Employment Opportunity Commission (EEOC)

federal law stating that the statute of limitations for filing a compensation discrimination claim starts to run each time the substandard wages are paid as opposed to running from only the initial discriminatory decision to pay those wages.

Ledbetter Fair Pay Act of 2009

Latin term for minimal importance, referring to a burden an employer would likely be obligated to undertake in an effort to reasonably accommodate an individual's religious belief or practice or disability.

de minimis

information that is clear proof that particular conduct occurred.

direct evidence

employment discrimination claim under Title VII (or another workplace antidiscrimination law) alleging that an employer engaged in unintentional discrimination based on the implementation of a policy or practice that is neutral on its face but results in an adverse/negative impact on members of a protected class.

disparate impact claim

constitutional provision that, among other things, provides individuals with the right to a fair legal proceeding, including the opportunity to be heard. Within the context of the imposition of discipline, due process requires that a disciplinary investigation be conducted in accordance with rules and principles for protecting and enforcing the rights of individuals, which would include conducting a thorough and unbiased investigation of the employee's alleged misconduct and giving the individual accused of wrongdoing the opportunity to present her recollection of the events.

due process clause

immigration reform and control act

employers must complete five actions: fill out 1-9, checking documents to establish ID/eligibility, retain I-9 for three years, present I-9 for inspection to Immigration and Naturalization service officer or to a dept of labor officer upon request.

standard established by the Equal Employment Opportunity Commission (EEOC) that quantifies an adverse impact on a protected class as a selection rate that is less than 4/5 (or 80%) of the selection rate of the group with the highest selection rate.

four-fifths (or 80%) rule

not covered by ada

homosexuality/bisexuality, gender identity disorders from physical impairment or other sexual behavior disorders, gambling, kleptomania, pyromania, use/substance disorders from illegal drugs

first time the court hears and makes a decision on an issue which establishes how that issue should be interpreted or applied in future cases.

precedent

hardship that exceeds what an employer would be required to withstand to accommodate a qualified individual with a disability or an employee's religious beliefs or practices; also referred to as an undue hardship.

undue burden