WGU C233 Employment Law

Placement Goal

A reasonably attainable objective to achieve equal employment opportunity.

unpaid

Under FMLA, eligible employees are entitled to 12 weeks of __________________________ leave.

I-9 Form

Under IRCA, employees must be eligible to work in the United States and requires employers to complete an ___________________________.

General Duty Clause

Under OSHA's _______________________________, employers are required to provide a workplace of known hazards.

Fines, fees, and payment of medical bills that would have been covered Enforced by: DOL & IRS jointly

What are the remedies available for The Consolidated Omnibus Budget Reconciliation Act (COBRA) violations?

Applicable Concept: Constitutional Rights

What concept most closely identifies with the following situation: No employment law can override this.

Polygraph As long as the protocols are followed

What type of testing would be allowed in this scenario: A jewelry store in the mall has noticed over time small amounts of jewelry have gone missing. The employer decides to conduct an investigation and wants to interview employees.

Oversee union elections Remedy unfair labor practices Decertify Unions

Primary functions of NLRB

Joint Employer

Two entities, not engaged in an integrated enterprise, that each exert control over an employee.

None allowed While Bix Box could inspect lockers it would not be able to search purses and backpacks unless it has reasonable suspicion and employees are notified of the possibility ahead of time.

What type of testing would be allowed in this scenario: Big Box Super Store wants to inspect employee lockers that it provides including all of the contents.

Federal Employees Coverage type: Public-Federal Coverage size: ALL

Who does the Privacy Act of 1974 protect?

Those employees affected by a plant closing or mass layoff Coverage type: Private Coverage size: >=100 employees

Who does the WARN Act protect?

Affirmative Action Plan

"Plan that analyzes a workforce to determine whether protected classes are underutilized in different job groups and describes how an organization will address any underutilization that exists."

Explicit Contract

(Also known as "express contract") A verbal or written agreement in which the parties state exactly what they agree to do.

BFOQ

(Bona Fide Occupational Qualification) Job requirement that an employee be a particular religion, sex, or national origin that is reasonably necessary to business operations. For instance, it is assumed that an opening for a Baptist minister at a local Baptist church would be filled by a minister who is actually a person who celebrates the Baptist religion and not, say, the Episcopal religion.

Prima Facie

(Latin for "at first sight") Evidence based on the first impression.

Stare Decisis

(Latin for "let the decision stand") the doctrine of a court following the precedent of an earlier court

Quid Pro Quo

(Latin for "this for that") The notion that an employer seeks sexual favors in exchange for some positive employment outcome for an employee.

Union Shops

A bargaining clause that allows a condition that all employees must join the union once hired.

Illegal Bargaining Subject

A bargaining subject that cannot legally be implemented into a collective bargaining agreement.

Permissive Bargaining Subject

A bargaining subject that either party may bring to the table, but over which the other party is not required to bargain.

Law

A binding set of rules for human behavior established by legitimate authority.

Integrated Enterprise

A business environment in which operations of two or more employers are so intertwined that they can be considered as a single employer for purposes of federal statutory coverage and liability.

Tort

A civil wrong which causes someone harm.

Negligent Referral

A claim in which an employer has provided an untrue reference that omits information about an employee's dangerous and/or criminal behavior.

Negligent Hiring

A claim in which the employer knew or should have known about an employee's history of violence or untrustworthiness.

Negligent Retention

A claim that arises when an employer fails to terminate an employee when it is apparent that he or she poses a danger to others.

Community of Interests

A community of people who align themselves with a common interest.

Good Faith

A concept that requires a mutual obligation of both parties to participate actively in negotiations by demonstrating intent to resolve a dispute.

Agency

A contract relationship between a principal and an agent whereby the principal authorizes the agent to work on his or her behalf and with power to bind the principal.

Precedent

A controlling rule, example, or guide established by a judge that provides a framework for other judges to follow in later cases

Injunctive Relief

A court order that prohibits a defendant from certain actions.

Judicial Affirmative Action

A court-ordered affirmative action plan.

Major Life Activity

A daily activity that an average person can perform with little or no difficulty.

Impasse

A deadlock reached by two bargaining parties whereby an issue cannot be resolved.

Same Actor Defense

A defense used by the same employer who hires and then fires an over-39 employee to show that age was not a motivating factor in termination.

Remedies

A desired action resulting from a successful lawsuit.

Underutilization

A discrepancy between the number of women and minorities in a particular position and the number of qualified women and minorities in the constituent market.

Statute of Frauds

A doctrine that requires certain contracts to be in writing.

Summary Plan Document (SPD)

A document issued from an employer to an employee that contains information about an employee's benefits.

Yellow Dog Contract

A document whereby an employee agrees not to organize or join a union.

Pretext

A false excuse used by an employer to cover up for discrimination.

National Labor Relations Board

A federal administrative agency that administers the provisions of the NLRA.

Illegal Immigrants

A foreigner who has entered the country unlawfully.

I-9

A form enacted under the IRCA that documents employee identity and right to work in the U.S. (specifies acceptable documents).

Worker's Compensation

A form of insurance that provides wage replacement and medical benefits for employees injured while at work in exchange for relinquishment of the right to sue the employer for negligence.

Vicarious Liability

A form of secondary liability that comes from the doctrine of respondeat superior - "let the master answer for the servant".

Complaint

A formal allegation against a party .

Official Bargaining Unit

A group of workers represented by a union in collective bargaining.

Secondary Boycotts

A group's refusal to deal with a business that is not directly involved in the dispute.

20-factor Analysis

A guide adopted by the Internal Revenue Service for determining if a worker should be classified as an independent contractor.

Conglomerate

A highly diversified firm that has multiple businesses with no relationships.

- It represents the employees of an employer. - Its membership exceeds a certain level. - It maintains a hiring hall which procures employees for at least one covered employer. - It is engaged in an industry-affecting commerce. This broad definition brings virtually all unions under federal and state employment law rules.

A labor organization is subject to federal employment law statutes as if it were an employer if any of the following are true of it:

1) represents the employees of an employer; or 2) has a certain amount more members; or 3) maintains a hiring hall which procures employees for at least one covered employer; or 4) is engaged in an industry affecting commerce.

A labor organization is subject to federal employment law statutes, as if it were an employer, if it 1) represents the employees of an employer; or 2) has a certain amount more members; or 3) maintains a hiring hall which procures employees for at least one covered employer; or 4) is engaged in an industry affecting commerce.

Federal Anti-trust Law

A law that prevents anti-competitive behavior within local commerce.

Going and Coming Rule

A legal principle that removes an employer's liability from employees' actions going to and from their place of employment.

Federal Injunction

A legal remedy that allows a court to order individuals to refrain from harmful acts.

Contract

A legally binding agreement between two parties.

Implied Contract

A legally binding agreement which is created, not through formal contract negotiation and documentation, but by the actions of the employer and the employee.

Business Necessity

A legitimate business purpose that justifies an employment decision as effective and necessary.

Race

A local geographic or global human population distinguished as a distinct group by genetically-transmitted physical characteristics.

Supervisor

A managing employee who has power to take tangible employment actions against an employee.

Compliance Requirement

A mandate that all employers comply with all safety and health requirements issued by the Department of Labor.

Continual Training Requirement

A mandate that all employers provide training to workers on a periodic basis and whenever an employee is hired or assigned to a new job.

Medical Testing

A method of testing for an employer to discover information about its employee's impairments or health.

Polygraph Testing

A method of testing for an employer to measure an employee's heart, respiratory, and skin reactions while he or she is asked a serious of questions in order to determine if he or she is lying.

Drug Testing

A method of testing for an employer to prevent the use of drugs among its employees.

Independent Living Movement

A movement of people with disabilities working toward self-motivation, self-respect, mainstreaming in society, and equal opportunity.

Adverse Job Action

A negative job action that results from an employee's lawful actions.

Escalator Principle

A provision of USERRA that requires an employer to place a returning veteran in positions that he or she may have attained, absent the military leave.

permissible if the political contribution was germane to collective bargaining activity, was justified to protect "labor peace" and prevent free riders, and did not unduly burden free speech.

A question that Taft-Hartley did not answer, but was addressed by the Supreme Court in 1991, was to what extent union service fees could be used for political purposes. The court concluded such expenses by the union were

Reasonable Accommodation

A reasonable change to the work environment that allows an individual with a disability to perform job functions.

Bona Fide Occupational Qualification (BFOQ)

A reasonable employment qualification that an employer is allowed to consider when making decisions about hiring and retaining employees.

Reinstatement

A remedy in which a former employee returns to his or her job.

Mandatory Bargaining Subject

A required bargaining subject that involves wages, benefits, hours, and layoff procedures.

Workforce Analysis

A review of jobs, ranked by title and compensation.

Reasonable Self-analysis

A review of what a contractor's workforce looks like.

English-only

A rule established by an employer that only allows English to be spoken in the workplace; Title VII allows for this rule under certain circumstances where there is no discriminatory purpose or effect.

Public-policy Exception

A rule of exception to the employment at-will doctrine that states that an employer cannot terminate an employee for reasons that violate public policy.

Reasonable Rationale

A sensible justification for an affirmative action.

Plant Closing

A single site of employment that is permanently or temporarily shut down for 6 months, or with a 50% reduction in hours over a 6-month period, and impacts 50 or more full-time employees for a 30-day period.

ADEA Waivers

A statement from a retiring employee that he or she will not make a personal ADEA claim against the employer in exchange for retirement incentives.

Pre-adverse Action

A statement issued to an applicant from an employer that discloses negative information found and information about his or her rights.

Public Disclosure of Private Facts

A type of tort in which an employer negligently or intentionally discloses an employee's private information.

False Light

A type of tort in which an employer publishes statements about an employee that are untrue and hurt the employee's reputation.

Appropriation of Image or Likeness

A type of tort in which an employer uses the name, image, or likeness of an employee for commercial purposes in a way that is not described in the job description.

"Hot Cargo" Agreements

A voluntary agreement in which a neutral employer agrees to cease doing business with another employer who deals directly with the firm in question.

Strike

A work stoppage by mass refusal of employees to work.

Independent Contractor

A worker who is not subject to wage, discrimination, tax, or liability laws.

Mass Layoff

A workforce reduction at a single employment site during a 30-day period which is not caused by a plant closing.

expensive, disruptive, wide-ranging in significance, or require an alteration of the fundamental structure of a business operation.

Accommodations that present an undue hardship are those that are

Unfair Labor Practice (ULP)

Action by an employer or a union that restrains or coerces employees from exercising their rights to organize and bargain collectively or to refrain from doing so.

ADEA

Age Discrimination in Employment Act

Contract An Agency agreement is a contract because it gives parties duties and privileges to with respect to each other which can be enforced.

Agency is a(n) __________ relationship (a legally binding agreement) between a principal and an agent whereby the principal, expressly or implicitly, authorizes the agent to work on his or her behalf and with the power to bind the principal.

Covered Employment Agency

An agency that regularly procures employees for at least one covered employer; subject to employment law regulation.

False If, after a rejected sexual advance, an employee receives an unanticipated favorable job outcome, like an unscheduled raise, a claim of quid pro quo sexual harassment may still lie under the theory that the raise is designed to induce the employee to accept the sexual advance or overlook an inappropriate advance.

An aggressive sexual advance is made by a male boss to a female subordinate and rejected. Later the female employee receives a raise. There is no colorable claim of quid pro quo sexual harassment because the "victim" did not suffer a tangible job action. True/False

Consent Decree

An agreement between two parties to resolve a dispute.

Free Riders

An employee who does not belong to a union, but benefits from union representation.

whistleblower

An employee who reports a wrong, is considered a ________________________ and is protected from retaliation under OSHA.

Intentional Interference with a Contract

An employee's claim that a third party pressures the employer to terminate an employee without cause.

Intentional Infliction of Emotional Distress

An employee's claim that an employer terminated an employee in an intentionally reckless or outrageous manner that caused serious emotional and psychological damage.

Frolic and Detour

An employee's physical departure from the job in order to further his or her own interests and not the employer's.

Contributory Negligence

An employer defense that an employee's errant conduct contributed to a workplace injury.

Fellow Servant Rule

An employer defense that another employee, not the employer, caused a workplace injury.

Assumption of the Risk

An employer defense that states an employee knows and accepts the risk of potential injury in a certain position.

Reasonable Factor Other Than Age (RFOA)

An employer defense to a disparate impact claim that age was not a factor in an employment action.

Pattern and practice discrimination Pattern and practice discrimination is characterized by the types of imbalances and discrimination exemplified in this situation.

An employer may claim that 50 percent of employees are non-white minorities or women. However, if the minority employees or women are concentrated in low paying positions, and all the white employees hold high paying managerial positions, this would be best described as:

Covered Employer

An employer that is engaged in a commerce industry and employs fifteen or more employees.

Abuse of Discretion

An employer's failure to consider important and relevant facts; acting in an arbitrary or capricious manner.

Anti-female Animus

An environment of animosity toward women.

Qualifying Event

An event that entitles an employee to twelve weeks unpaid leave.

Opportunity Wage

An exception to the minimum wage law that applies to employees under twenty years old.

Closed Union Shop

An illegal requirement that an employee be a union member.

Serious Health Condition

An incapacitating illness, injury, or impairment that requires overnight care or continuing treatment from a health care provider.

Quota

An official limit on the number or amount of people or things that are allowed.

E-Verify

An online tool administered through the U.S. Citizenship and Immigration Services (USCIS) and used by employers to verify the validity of documents presented by new hires.

Compensatory Time

An option for public employers to allow time off for employees instead of payment.

Unions

An organization that represents workers in bargaining with employers.

Organizational Display

An organizational chart that includes demographics data for all positions.

Course of Employment

Any action by an employee that furthers an employer's business.

Affirmative Action (AA)

Any action taken by an employer to overcome discriminatory effects of past or current practices that create barriers to equal employment opportunity.

Workweek

Any consecutive seven-day period.

Supremacy Clause

Article VI, Paragraph 2 of the Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.

Hostile Work Environment

As defined by the Equal Employment Opportunity Commission (EEOC), a work environment in which an individual or individuals are subjected to a pattern of harassment "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment."

Notes for users

Attached is my OA score so you can tell in what areas my quizlet might be lacking. Because people asked: time to completion was 2 days. Almost 600 cards in this one, I know. But there's a lot of dense material in this class with specific stuff to remember (cases, laws, etc)

Sex He did so in an attempt to defeat the legislation, as there existed a strong anti-women animus among unions and supporters of the legislation who did not want women included in the protections offered by Title VII.

Before the final passage of the Civil Rights Act of 1964, Virginia Democrat, Senator Howard W. Smith, inserted into the language of the legislation defining the class of persons protected under the anti-discrimination provisions of Title VII the word:

Warn Act

Blah Blah Inc. employs 140 employees in Michigan. On Wednesday, they all showed up to work to find the gates padlocked and a sign that said, "Blah Blah Inc. regrets that because of business conditions, we have been forced to relocate to Alabama. Visit our website to continue enjoying our quality products." Blah Blah Inc. has most likely violated the ___________________________.

- When a supervisor has engaged in sexual harassment, the employer may, nevertheless, raise an affirmative defense. - The Supreme Court held that an employer may avoid liability for supervisor harassment by proving affirmatively that: 1) the employer exercised reasonable care to prevent and correct the harassment - through training and policy enforcement; and 2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998) This is often called the Ellerth/Faragher affirmative defense.

- In assessing both cases, the NLRB found Butler's policy restricting social networking by employees unlawful because it could be construed to prohibit "concerted activity." The lesson for the human resource professional is to craft social media policies so they may not discourage social media posts about the conditions of employment

Butler Medical Transport LLC and Michael Rice and William Lewis Norvell, Case Nos. 5-CA-97810, 5-CA-94981 and 5-CA-97854 (Sept. 4, 2013)

Unwelcome Conduct

Conduct that is not solicited by an employee and that a reasonable person would regard as offensive.

Civil Rights Act of 1991

Congress passed the ________________ to codify the concept of disparate impact discrimination as articulated in Griggs v. Duke Power.

passing the Norris-LaGuardia Act in 1932. Also known as the Federal Anti-Injunctive Act, Norris-LaGuardia was the first significant comprehensive labor statute governing the interplay between unions and business.

Congress, recognizing that the Clayton Act had been largely ineffective and that court federal rulings illustrated a continuing hostility to labor organizing efforts, sought a remedy by

False Here, DeVille has 18 employees for employment law purposes.

DeVille Corp. has 13 regular employees and 5 employees assigned by a temporary agency, who are jointly employed by Deville and a temporary agency. Here, DeVille has 13 employees for employment law purposes. True/False

The employment-at-will doctrine provides that an employer may terminate an employee at any time, for any legal reason, without incurring liability.

Define employment-at-will

Affirmative Action (AA) is any action taken by an employer to overcome discriminatory effects of past or current practices or policies that create barriers to equal employment opportunity. The focus of AA is to assist historically disadvantaged groups in employment, which includes women, African Americans, Asians, Pacific Islanders, disabled persons, and veterans. Affirmative Action has its genesis in presidential action.

Describe Affirmative Action

Agency is a contract relationship (a legally binding agreement) between a principal and an agent whereby the principal, expressly or implicitly, authorizes the agent to work on his or her behalf and with the power to bind the principal.

Describe and give examples of the following type of employment contracts: Agency

An explicit contract is an agreement in which the parties state exactly what they agree to do.

Describe and give examples of the following type of employment contracts: Explicit Contracts

Notwithstanding the role of common law, the supreme law of the land in the U.S. is the Constitution. Every law in the country must comply with the provisions of the Constitution, or that law is void. The power of the Supreme Court to consider whether a law comports with the Constitution is called Judicial Review.

Describe how the U.S. Constitution affects employment law.

Drug testing law is different for public and private employees. Public employees are protected by the Fourth Amendment against unreasonable search and seizure by the government. The Supreme Court has held that a drug test is a governmental search. The ADA governs the medical testing of employees, and under its provisions pre-employment medical testing is prohibited. The Employee Polygraph Protection Act of 1988 prevents employers from using polygraph tests for employment recruiting and retention purposes.

Describe regulations/employer concerns pertinent to the following types of employee testing: Drug/Alcohol Testing Medical Testing Polygraph Testing

1) public policy; 2) implied contract; and 3) implied covenant of good faith.

Describe the three (3) exceptions to employment at will.

The EEOC states that an "employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers."

Describe what is meant by a "reasonable factor other than age"

Americans with Disabilities Act (ADA)

Employers with 15 or more employees are prohibited from discriminating against people with disabilities. In general, the employment provisions of the ADA require equal opportunity in selecting, testing, and hiring qualified applicants with disabilities; job accommodation for applicants and workers with disabilities when such accommodations would not impose "undue hardship;" and equal opportunity in promotion and benefits.

False Claims Act (FCA)

Enacted in 1863, this federal law imposes liability on entities that defraud governmental programs.

Sherman Anti-Trust Act

Enacted in 1890, it prevents businesses from combining together to restrain trade and seeking monopoly business power.

Clayton Act

Enacted in 1914, it prohibits the elimination of unions.

Norris-LaGuardia Act

Enacted in 1932, it governs the interplay between unions and businesses.

National Labor Relations Act (NLRA)

Enacted in 1935, it establishes workers' rights to form unions, collectively bargain, and strike.

Fair Labor Standards Act (FLSA)

Enacted in 1938, it protects workers from unfair wages, limits abusive overtime practices, and prevents child labor.

Labor Management Relations Act of 1947

Enacted in 1947, it curbs union overreaching by protecting employee rights and prohibiting wildcat strikes.

Immigration and Nationality Act of 1952 (INA)

Enacted in 1952, it centralizes and organizes U.S. immigration law.

Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)

Enacted in 1959, it creates a union member "bill of rights" in order to empower union members and reduce union corruption.

Civil Rights Act of 1964

Enacted in 1964, it prohibits race discrimination in employment.

Age Discrimination in Employment Act (ADEA)

Enacted in 1967, it protects employees who are 40 years of age and older.

Occupational Safety and Health Act (OSHA)

Enacted in 1970, it governs safety in all businesses and created the Department of Labor and the Occupational Safety and Health Administration.

Fair Credit Reporting Act

Enacted in 1970, it regulates reporting agencies' collection, correction, dissemination, and use of consumer credit information .

Privacy Act

Enacted in 1973, it governs the release of private information about public employees to federal agencies.

Employee Retirement Income Security Act (ERISA)

Enacted in 1974, it protects worker benefits and encourages employer management of retirement funds.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Enacted in 1986, it allows an employee to extend company health care benefits for up to eighteen months after he or she leaves a job.

Electronic Communications Privacy Act (ECPA)

Enacted in 1986, it prohibits employers from intercepting or accessing employee communications.

Immigration Reform and Control Act of 1986 (IRCA)

Enacted in 1986, it prohibits employers from knowingly hiring undocumented workers and requires them to verify eligible workers within three business days of hiring.

Worker Adjustment and Retraining Notification Act (WARN)

Enacted in 1988, it gives terminated workers an opportunity to search for other employment or obtain additional training.

Employee Polygraph Protection Act

Enacted in 1988, it prevents employers from using polygraph tests for recruiting or retention purposes.

Drug Free Workplace Act

Enacted in 1988, it requires federal contractors to enforce drug-free policies.

Older Workers Benefit Protection Act (OWBPA)

Enacted in 1990, it allows employers to offer retirement incentives to older workers.

Omnibus Transportation Employee Testing Act (Omnibus Act)

Enacted in 1991, it authorizes and regulates the drug testing of employees in the airline, railroad, trucking, and public transportation sectors.

Family and Medical Leave Act (FMLA)

Enacted in 1993, this federal law governs leave for employees due to parental and medical necessity.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Enacted in 1994, it prevents any employer from discriminating against someone who is or has been in military service.

Health Insurance Portability and Accountability Act

Enacted in 1996, it establishes standards in the health industry for gathering, processing, retaining, and disclosing private health information.

In disparate impact discrimination, the plaintiff claims not that the employer intentionally discriminated, but rather the employer's procedures, policies, or practices are "not job-related and consistent with a business necessity" and have the effect of creating an unnecessary obstacle to employment opportunity for a specific protected class. Disparate treatment discrimination is directed at an individual, while disparate impact discrimination is directed at a class of persons.

Explain the difference between disparate impact (aka adverse impact) and disparate treatment (aka adverse treatment)

Employer obligations to an employee are many and varied. On the other hand, an employer is not vicariously liable for the torts of an independent contractor, and employer obligations are limited to the contract terms. For example, if a worker is an independent contractor, the employer is not subject to wage and hour laws, anti-discrimination laws, federal employee tax withholdings, or vicarious liability law.

Explain why it is important for an organization to correctly identify which workers are "employees" versus independent contractors?

over $10,000

Federal government and federal contractors doing _________ in business have to take affirmative action to hire qualified disabled persons.

- Virtually every federal court hearing age discrimination claims has ignored the EEOC regulation and concluded that the ADEA's protections do not provide a cause of action to younger workers within the protected class who complained that older workers were treated more favorably. - The United States Supreme Court held that employers may always favor the old over the young, even with both candidates being 40 years of age and older. Justice Souter wrote that "the enemy of 40 is 30 not 50." The idea was that without this rule, all retirement and seniority plans would be rendered null.

General Dynamics Land Systems, Inc v. Cline

The seminal case establishing the concept of disparate impact - black workers were overtly limited to low-paying labor jobs, while higher-paying positions were reserved for white persons - U.S. Supreme Court found that, while no evidence existed that the imposition of the test mandates were intended to be discriminatory, Duke Power had nevertheless failed to establish that the tests were meaningfully connected to job performance. - Congress passed the Civil Rights Act of 1991 to codify the concept of disparate impact discrimination as articulated in Griggs v. Duke Power.

Griggs v. Duke Power, 401 U.S. 424 (1971)

Sexual Harassment

Harassment directed at an employee because of his or her gender.

National Origin Discrimination Harassment

Harassment that includes offensive comments about an employee's national origin.

One year The application of Title VII continues for a year after a firm reaches the critical mass of 15 employers, even if the number of employees in the next year falls below the minimum

How long does the application Title VII continue after a firm has reached a critical mass of 15 employees?

13 A few states, just 13, recognize the third at-will doctrine exception known as the implied covenant of good faith and fair dealing.

How many states accept the at-will doctrine of implied covenant of good faith and fair dealing?

- The first step is determining which federal employment statutes apply to the firm. - The second step would be to determine if the employer does contract work for a federal or state government. - Third, after assessing which federal laws apply, the HR professional must look to state law. - The final step would be to understand which common law rules apply in the state where the business operates.

How would an HR professional determine whether an employment law is applicable to his/her employer?

1) is over 40 years of age and older; 2) was qualified for the employment position; 3) was adequately performing the essential job functions; and 4) was treated less favorably than another younger employee.

How would an employee establish a claim of age discrimination under the ADEA?

1. An apparently neutral employer's procedure, policy, or practice, which has the effect of limiting employment opportunities for a particular class. 2. That the difference in impact is substantial. Examples of neutral polices and protected classes impacted might include: >Height and weight restrictions - gender/national origin >Language requirements - national origin >Physical strength tests - gender >Educational requirements - race; dress codes - gender/religion >No beard policies - gender/race/national origin/religion

How would an employee establish a prima facie case for gender discrimination?

Reasonable Person Test

Hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability.

Workers' Comp

If a worker files a claim under ___________________________, he/she gives up the right to sue the employer.

may still exist under the theory that the raise is designed to induce the employee to accept the sexual advance.

If after a rejected sexual advance an employee receives an unanticipated favorable job outcome, like an unscheduled raise, a claim of quid pro quo sexual harassment

retaliatory discharge Retaliatory discharge refers to an employer terminating an employee for anything other than a work-performance related reason. The term most commonly refers to an employee being terminated for reporting the employer's wrongful conduct.

If an employee is terminated for claiming minimum wage or overtime compensation, engaging in union activities, opposing unlawful discriminatory practices, filing for workers' compensation, or "whistleblowing," the employer may face liability for a

IRCA - Immigration Reform & Control Act (1986)

Immigration Reform and Control Act

prohibited the elimination of unions and expressly removed union organizing efforts from the "anti-combination" language of the Sherman Anti-Trust Act. An unintended consequence of this exemption from anti-monopoly laws was that union officials were able to forcibly drive out independent or alternative employee bargaining groups. This began the consolidation of union power and subsequent union abuses.

In 1914, Congress passed the Clayton Act, which

The many factors which come into play in discrimination cases Most often it is difficult to parse out of employer actions a single reason for a claimed adverse job action due to age.

In age discrimination, what is the meaning of a mixed motive?

ADEA waivers From the text, "In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called "ADEA waivers.""

In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called:

There was an unauthorized employer intrusion or prying into his or her seclusion The employer intrusion was highly offensive to a reasonable person The matter intruded upon was private The intrusion caused anguish and suffering

In order to establish a claim of intrusion upon seclusion at work, an employee must show that:

passed the ADA Amendments Act.

In response to several United States Supreme Court cases that narrowly construed the definition of disability, in 2008 Congress

At-will doctrine From the text, "In the private employer arena, an employee would have to look to public policy exceptions and to the at will doctrine to determine if a case for retaliatory discharge is available when an employee is terminated for engaging in speech the employer does not sanction."

In the private employer arena, an employee would have to look to the public policy exceptions and to the _____________to determine if a case for retaliatory discharge is available.

Changes to NLRA Standards - prohibited Pension Plans - mandatory Strike Settlement Agreements - Permissive Employer Controlled Pricing in Vending Machines - mandatory

Indicate whether each item listed below is considered a mandatory, permissive, or prohibited bargaining subjects according to NLRA. Changes to NLRA Standards Pension Plans Strike Settlement Agreements Employer Controlled Pricing in Vending Machines

Corporate Social or Charitable Activities - Permissive Discriminatory Employment Practices - Prohibited Annual Bonuses - mandatory Shift Premiums - mandatory Specifying When Workers May Strike - Prohibited

Indicate whether each item listed below is considered a mandatory, permissive, or prohibited bargaining subjects according to NLRA. Corporate Social or Charitable Activities Discriminatory Employment Practices Annual Bonuses Shift Premiums Specifying When Workers May Strike

Wages - mandatory Union Procedure for Ratifying Contracts - Permissive Union Attempt to Negotiate a Closed Shop Agreement - prohibited Hours - mandatory Attempts to modify the union certification - Permissive

Indicate whether each item listed below is considered a mandatory, permissive, or prohibited bargaining subjects according to NLRA. Wages Union Procedure for Ratifying Contracts Union Attempt to Negotiate a Closed Shop Agreement Hours Attempts to modify the union certification

Whistleblower

Individual who reports real or perceived wrongs committed by the employer.

The common law agency test The economic realities test The IRS 20-factor analysis

List and describe the three tests used to determine independent contractor status

- The degree of interrelation between operations, such as sharing management services, payroll, and office space. - The degree to which the entities share management, as in having a common slate of managers, officers, and directors. - The degree of common control of labor relations, as in human resources administration or personnel policy development. - The level of shared ownership.

List the factors used to determine whether two or more firms are considered an integrated enterprise

1) the employee asks for an accommodation; 2) the employer and employee engage in an interactive discussion regarding barriers to performance; 3) a listing of possible accommodations is examined; 4) the employer determines which accommodation is reasonable and effective; and 5) the employer implements the accommodation.

List the steps in making a reasonable accommodation under the ADA.

Employee Dissatisfaction Initial Organization Meeting Signatures Secret Ballot Election/Card Check Voting and Contract

List the steps of the union organization process.

Interferes with employees as they engage in concerted activity Dominates or assists a labor union Discriminates against any worker because of union activity Punishes a worker for filing charges with the NLRB Fails to bargain collectively in good faith with the union

List unfair labor practices perpetrated by an employer.

Interferes with any employee's rights under the NLRA Aids an employer in discriminating or interfering with union activities Pickets unlawfully Charges excessive dues and initiation fees to union members Causes the employer to pay for work not performed Refuses to bargain in good faith

List unfair labor practices perpetrated by unions.

National Origin

Location of birth.

1) Prohibits discrimination in all employment decisions on the basis of age 2) Prohibits mandatory retirement (except for firefighters and police officers and some executives who will make >$44k/yr. in pension benefits) 3) Differentiation may be established on "factor other than age" 4) Complaint must be filed with EEOC within 180 days of alleged violation 5) Whistleblower provision/prohibits retaliation

Main provisions of Age Discrimination in Employment Act (ADEA)

1) Prohibits discrimination based on a disability 2) Defines disability as physical or mental impairment that substantially limits one or more major life activities 3) Includes those covered to include "record of such impairment" 4) Also includes those covered to include perceived as having such an impairment 5) If person's condition poses direct threat to safety of others, then he/she is considered not qualified for the job 6) Prohibits pre-employment medical testing; permissible after job offer (can be contingent) if testing appropriately assesses physical or mental standards required for job 7) Whistleblower protection/prohibits retaliation

Main provisions of Americans with Disability Act (ADA)

1) Maintain drug-free workplaces 2) Provide education and enforcement of drug-free policies 3) No provision for drug-testing

Main provisions of Drug Free Workplace Act

1) Prevents employers from using polygraph tests for employment recruiting and retention purposes 2) Allowed if employee is suspected to be involved in a situation that caused the business harm or money 3) Can't use to investigate drug use, for theft among co-workers, accidents, or routine shortages in inventory or cash drawers

Main provisions of Employee Polygraph Protection Act

1) Employers must provide correct information about benefits, deliver promised benefits, provide a review for disputes, manage employee funds with light level of care, abstain from interference of employee benefit rights, specify premiums and copays, and identify the administrator and any factors that may impact benefits=Summary Plan Document 2) Summary Plan Document within 90 days of employment 3) Establishes minimum standards and requirements that the pension plan must meet

Main provisions of Employee Retirement Income Security Act (ERISA)

1) Pay men and women equal for equal work (work, effort, skills, responsibility, and working conditions) 2) Covers all aspects of compensation (includes benefits) 3) Pay differentials allowed for seniority (as long as the seniority system wasn't based on discriminatory practices), merit pay systems, productivity-based systems, and any other "factor other than sex" 4) Whistleblower provision/prohibits retaliation

Main provisions of Equal Pay Act (EPA)

1) Relates to medical records or payments, residential or tenant history, check writing history, employment history, and insurance claims 2) Must have written consent from applicant or employee; if applicant refuses, employer does not have to hire him/her 3) If info leads to adverse decision, employer must furnish the employee/applicant with negative information and rights under the law 4) Employee/applicant has chance to correct any erroneous info

Main provisions of Fair Credit Reporting Act (FCA)

1) 12 weeks unpaid leave if 1250 hours worked in the 12 months preceding leave for birth, adoption, or placement of new foster child AND/OR serious health condition of the employee, employee's spouse, son, daughter or parent 2) Amended to allow 26 weeks for qualifying family members of a veteran seriously injured in line of duty 3) Employer allowed to create policy for requesting FMLA and follow with proper disciplinary procedure if not followed 4) Upon return from leave, employee entitled to same or substantially the same position held prior to leave 5) Does not cover bereavement or protect against layoffs or termination for cause

Main provisions of Family Medical Leave Act (FMLA)

1) Prohibits unreasonable governmental searches into the private affairs of employees 2) Often at issue is the definition of personal space and what would be a reasonable expectation 3) Drug testing--considered a governmental search so employer must have reasonable suspicion employee is engaged in illegal drug use

Main provisions of Fourth Amendment to the Constitution of the United States

1) Sought to correct union over-reaching 2) Amended NLRA to protect a worker's right not to engage in concerted activity 3) Outlined unfair labor practices for unions 4) Prohibited wildcat strikes, solidarity or political strikes, secondary boycotts, secondary and mass picketing, monetary donations by unions to federal political campaigns, and closed shops 5) Allowed executive branch of federal government to "strike break" if the strike interfered with national health or safety

Main provisions of Labor Management Relations Act (LMRA) aka Taft-Hartley Act

1) Sought to empower union members and reduce corruption 2) Created a union member "bill of rights" >Right to attend meetings >Right to vote in elections and on union business >Right to vote for candidates in secret elections >After union grievance process was exhausted, members could bring union to court and provide for due process 3) Restraints on union practices >Elections for officers every three years >Candidates for office allowed access to voter rolls >Process to address election irregularities >Annual financial reports to DOL >Compelled to union democratic processes >Standards for dues >Fiduciary duty for officers, disclose conflicts of interest, and may be convicted with felony charges (federal crime to embezzle)

Main provisions of Labor Management Reporting and Disclosure Act (LMRDA) aka Landrum-Griffin Act

1) Provides for a federal minimum wage (exceptions include those under 20 years old for the first 90 days of employment) 2) Provides for overtime at 1.5x hourly rate for all hours worked within a work week over 40 for non-exempt employees 3) Protects from abuse of child labor (retail jobs allowed with restrictions for 14 year olds, 16 year olds can work if no interference with health, education, or well-being--standards set by state law) 4) Tipped workers, piece rate, and per assignment (e.g., referees) must earn at least minimum wage when wages are averaged for the work week 5) Children working for parents, children working as performers, and most farm workers exempt 6) Applies to undocumented workers (cannot knowingly hire illegals and break the law because they are illegal) 7) Whistleblower provision/prohibits retaliation

Main provisions of Main provisions of Fair Labor Standards Act (FLSA)

1) Prohibits the hiring of illegal aliens 2) Illegal to hire and or retain an undocumented worker 3) Within 3 days employer must verify eligibility to work U.S. 4) Established the I-9 form 5) Does not require investigation, just reasonable assurance the documents are valid 6) Also prohibits discrimination in employment on basis of national origin or citizenship 7) Two BFOQs established under IRCA: a) citizenship for specific jobs and public policy functions and b) English proficiency when necessary to carry out essential functions

Main provisions of Main provisions of Immigration Reform and Control Act

1) Allowed workers to form unions 2) Permitted collective bargaining 3) Allowed workers to strike

Main provisions of National Labor Relations Act (NLRA) aka Wagner Act

1) All employers must comply with all DOL safety and health requirements (compliance requirement) 2) Employers must provide a workplace free of recognized hazards likely to cause death or serious harm (general duty clause) 3) Allows for spot workplace inspections, imposes fines for rules violations, and ensures that continual training is taking place 4) Whistleblower provision/prohibits retaliation

Main provisions of Occupational Safety and Health Act (OSHA)

1) Waiver of claims if the waiver is knowing and voluntary AND employees receive additional compensation for the waiver, over and above that for which they are already entitled 2) Waiver must meet following conditions: Refer to employee's rights under the ADEA, contain an exchange of value, advice to consult an attorney, allow employees 21 days to consider, and provide 7 days to rescind 3) If part of termination program offered to group/class of employees then it must also meet the following conditions: allow 45 days for consideration, list the class eligible for early retirement, explain the factors used to determine eligibility, define time limits for deciding upon early retirement, and explain any adverse action should the employee decide to decline or accept early retirement

Main provisions of Older Workers Benefit Protection Act (OWBPA)

1) Amended Title VII 2) Prohibits employment discrimination on basis of pregnancy, childbirth, or pregnancy related medial conditions 3) Treat pregnancy as disability (employees on leave for pregnancy related issues still accrue seniority, vacation time, pay increases and benefits). 4) Health insurance must include pregnancy related conditions at same cost as other medical conditions (excludes abortions) 5) Pregnancy health coverage must be independent of marital status 6) Whistleblower provision/prohibits retaliation

Main provisions of Pregnancy Discrimination Act (PDA)

1) Prohibits discrimination based on a disability 2) Disability defined as physical or mental impairment that substantially inhibits one or more major life activities 3) Federal government and federal government contracts with contracts over $10,000 take affirmative action with regards to disabled 4) Reasonable accommodation unless undue hardship happens 5) Provides for technology accessibility (visual presentations must also have a auditory accompaniment)

Main provisions of Rehabilitation Act

1) Benefit coverage extends 18 months after qualifying event--an event that causes an employee to lose group health coverage; e.g., termination, reduction in hours (special causes can increase coverage period) 2) Employee/former employee is responsible for premium plus a small administration fee (up to 2% of the premium) 3) Employers must notify existing employees of their rights under COBRA 4) Exiting employee has 60 days to exercise COBRA rights

Main provisions of The Consolidated Omnibus Budget Reconciliation Act (COBRA)

1) Cannot release private medical data without the permission of the individual covered 2) Companies may develop organization-wide privacy policies and procedures and inform all employees of them 3) Electronic, physical, and other methods must be implement to protect the security of health records

Main provisions of The Health Insurance Portability and Accountability Act (HIPAA)

1) Established legitimacy of unions and organizing efforts 2) Relevance of employment to worker > worker to firm 3) Collective bargaining was the only way workers could affect meaningful change in the conditions of their employment 4) Curtailed the use of federal courts to intervene or issue injunctions in labor disputes 5) Yellow dog contracts against public policy and made them unenforceable

Main provisions of The Norris-LaGuardia Act

1) Illegal to discriminate in all employment related decisions on basis of race, color, religion, sex, or national origin. 2) Created EEOC 3) Allows for BFOQ 4) Establishes criteria for Disparate Impact/Disparate Treatment 5) Whistleblower provision/prohibits retaliation

Main provisions of Title VII of the Civil Rights Act of 1964

1) Protects against discrimination based on military service 2) Military employees can leave jobs to perform military service 3) Service employees entitled to reinstatement and employment benefits if they a) gave employer notice of service, b) absence is less than five years, and c) submitted application for re-employment within designated time period 4) Employers not required to reinstate if a) employer's circumstances have changed and re-employment would be unreasonable, b) re-employment would cause undue hardship, and/or c) initial employment was brief or nonrecurring

Main provisions of Uniformed Services Employment and Re-Employment Rights Act (USERRA)

1) 60 days advance notice for plant closings and mass layoffs 2) Requires multiple notices if reduction in workforces is done in a series of layoffs within a 90-day period; i.e., can't avoid notice by performing multiple smaller-scale layoffs 3) Doesn't apply for a) natural disaster, b) severe and unforeseen loss of capital, and c) company is failing and giving notice would prevent obtaining capital that would allow it to continue operations

Main provisions of WARN Act

1) Employee must provide written explanation of how wrongdoing involved the mismanagement, waste, or abuse of public funds, or posed a danger to safety and health of public 2) Protects whistleblower from retaliation

Main provisions of Whistleblower Protection Act

National Labor Relations Act of 1935 (Wagner Act) -->Rights of unions Labor Managemet Relations Act of 1947 (Taft-Hartley) -->Rights of management Labor and Management Reporting and Disclosure Act (Landrum-Griffin Act) -->Rights of union members

Major National Labor Laws

- The foundational case that established the notion of pretextual discrimination - Green, an African-American mechanic at McDonnell Douglas in St. Louis, was laid off following a downturn in firm business. Green believed his discharge was racially motivated and became involved in several illegal worker demonstrations against the company. Later, McDonnell Douglass advertised for job openings for mechanics and Green applied. He was rejected on the basis of his involvement in illegal activity against the firm. Green sued under Title VII, arguing the real reason for his job application rejection was his race and involvement in civil rights matters. - The U.S. Supreme Court ultimately heard the matter and developed the prima facie case for determining if a proffered employer's reason for an adverse hire decision was merely pretext. The U.S. Supreme court remanded the matter to the lower court to conduct a hearing under the prima facie standards it established.

McDonnell Douglas, Corp. v. Green.

- The seminal case for hostile environment sexual harassment - Vinson claimed Taylor, a bank vice president, had coerced her into having repeated sexual relations with him. Vinson claimed Taylor also touched her in public, exposed himself to her, and forcibly raped her multiple times. Vinson could not show the sexual relations resulted in any tangible job action. - The U.S. Supreme Court held, for the first time, that Title VII prohibits sexual harassment which creates a hostile, intimidating work environment, even if the harassment does not cause a direct financial injury.

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986)(Meritor)

Back Pay

Monetary compensation for a plaintiff's lost earnings.

Front Pay

Monetary compensation in lieu of reinstatement.

Compensatory Damages

Monetary compensation necessary to replace a plaintiff's losses.

Punitive Damages

Monetary damages designed to punish an employer who acted maliciously or recklessly.

Formally established the legitimacy of unions and labor organizing efforts Articulated that employment to a worker was more significant than the worker to the firm Established a public policy recognizing that collective bargaining was the only way workers could effect meaningful change in the conditions of their employment Curtailed the use of federal courts to intervene or issue injunctions in labor disputes Declared yellow dog contracts to be against public policy and rendered them unenforceable in any United States court

Norris-LaGuardia was the first significant comprehensive labor statute governing the interplay between unions and business. It is important because it:

- Dr. Ortega was a physician and director of training at a federal government medical facility. Officials became concerned with the integrity of Dr. Ortega's administration of the program and allegations of sexual harassment and, while he was on leave, searched Ortega's office and desk to inventory state property. That search produced several incriminating personal items that were used in the dismissal case against Ortega. Ortega complained he had a reasonable expectation of privacy to personal items in his office and the employer search was unlawful. - The Supreme Court, without actually deciding the merits of the matter, found that such a search may be reasonable if it is: Justified at the start Limited in scope in its execution The high court eventually sent the case back to the trial court for that determination.

O'Connor v. Ortega

the landmark United States Supreme Court case which found a fundamental right to marry is guaranteed to same-sex couples by the Fourteenth Amendment

Obergefell v. Hodges, 576 U.S. ___ (2015)

Reduction in Force (RIF)

Occurs when a business eliminates one or more positions as part of a strategic business plan to realign operations or reduce cost.

Dual Purpose Mission

Occurs when an employee conducts personal and work business at the same time; subjecting the employer to liability for the employee's actions

Employee

One who performs services under the direction and control of another.

Equal Pay Act (EPA)

Passed in 1963, it requires nearly all employers to pay men and women equally for the same work.

Vietnam Era Veteran Readjustment Assistance Act

Passed in 1974, it requires contractors to take affirmative action toward veterans.

ADA Amendments Act

Passed in 2008, it amends the ADA by adding new protections for employees with disabilities.

Progressive Discipline

Performance management tool designed to modify employee behavior by using a set of increasingly severe discipline steps, with consequences, that hold the employee responsible.

Affirmative Action

President Kennedy in 1961 introduced the term ___________ for the concept of redressing the effects of persistent discriminatory employment practices in spite of civil rights laws and constitutional guarantees.

- An important area of gender discrimination is the stereotyping of how a male or how a female should act. - a highly qualified female employee, Hopkins, was entitled to relief under Title VII for being denied promotion at a prestigious accountancy firm because she did not conform to traditional views of how a woman should act at work.

Price Waterhouse v. Hopkins

Common Law

Principles developed over centuries as a result of legal decisions made by judges in individual cases.

Conciliation

Process where a third party acts as an intermediary between the parties to a labor dispute, helping them to reach a settlement.

Title VII of the Civil Rights Act of 1964

Protects all races from discrimination.

Direct Evidence

Real, clear evidence of discrimination that requires no inference or consideration to prove its existence.

Due Diligence

Reasonable steps taken by an employer to ensure that applicants are eligible to be hired.

Fair Credit Reporting Act (FCRA)

Requires employers take specific steps prior to requesting or using a consumer report (disclosure, written permission, notice of adverse action, right to dispute).

General Duty Clause (under OSHA)

Requires employers to provide their employees with a safe and hazard-free place of employment.

Constructive Discharge

Resignation of an employee because an employer allows working conditions that are no longer tolerable for any reasonable employee.

Joint Ownership

Right of ownership shared by two or more owners such that on the death of an owner his or her right passes on to surviving owner(s), the last survivor becoming the full owner.

is not permissible.

Rigid quotas or reserving positions for a specific protected class of individuals who are less qualified

Exempt Employees

Salaried employees are not necessarily ___________________________________ under the FLSA.

First Written Warning

Second step in a disciplinary process, which advises an employee that work behavior must change, lays out steps that have already been taken to advise the employee of the deficit, and describes steps that need to be taken to improve performance and remain employed.

Color

Skin pigmentation characteristic of race, especially other than white.

Intelligence Tests

Standardized assessments designed to assess human ability to learn or understand or to deal with new or trying situations.

1 Employee believes a discriminatory act occurred 2 Employee files compliant with EEOC 3 EEOC examines employee's claim to determine whether a prima facie case exists 4 EEOC sends complaint to employer 5 Employer responds to EEOC addressing employee's assertion of events 6 EEOC decides to pursue further with more investigation and pursuit of settlement or issuance of a "Right to Sue" letter, which gives employee the right to seek private counsel and sue the employer

Steps of filing a discrimination complaint with the EEOC

- age and seniority are "analytically distinct" from each other in the ADEA context. - a paper company's decision to terminate an employee because his pension was about to "vest" did not violate the ADEA. That is, the decision was made due to years of service and "vesting," not due to the employee's age. - the Supreme Court noted that the ADEA was designed to eliminate practices based upon the negative and unsupported age stereotypes of reduced performance and competence and that the paper company's decision was not motivated by these considerations. * Notwithstanding the Hazen case, and because of the high correlation between salary and age, federal courts are not unified regarding the issue of whether RIF plans based solely on salary constitutes disparate impact under the ADEA.

Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604

Retaliatory Discharge

Termination of an employee as punishment for engaging in a protected activity.

Sherman Anti-Trust Act From the text, "The Clayton Act prohibited the elimination of unions and expressly removed union organizing efforts from the "anti-combination" language of The Sherman Anti-Trust Act."

The Clayton Act prohibited the elimination of unions and expressly removed union organizing efforts from the "anti-combination" language in which act?

The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; The Americans with Disabilities Act of 1990 (ADA) (Title I and Title V), and its 2008 Amendments (ADAAA), which prohibit disability discrimination in the private sector; The Rehabilitation Act of 1973 (Sections 501 and 505), which prohibit discrimination against qualified individuals with disabilities who work in the federal government; The Civil Rights Act of 1991, which allows for compensatory and punitive damages for violations of Title VII; and The Uniformed Services Employment and Re-employment Rights Act (USERRA), which protects military personnel from employment discrimination.

The EEOC conducts enforcement litigation for several federal statutes in addition to Title VII of the Civil Rights Act of 1964. These laws include:

against union organizing efforts. In 1908, the Supreme Court held that workers organizing into unions was a combination designed to restrain trade and, therefore, violated the Sherman Anti-Trust Act.

The Sherman Anti-Trust Act, which was designed to curtail business abuses, was used

Whistleblowing

The action of an employee to report the wrongdoings of an employer.

Rebuttal

The action of contradicting or opposing by formal legal argument, plea, or countervailing proof. In this step the plaintiff responds to the employer during an EEOC discrimination claim hearing.

a year after a firm reaches the critical mass of 15 employers, even if the number of employees in the next year falls below the minimum.

The application of Title VII continues for

Vesting

The conveying of an employee's rights to benefits or contributions after a certain amount of time.

Equal Employment Opportunity Commission (EEOC)

The federal agency that enforces federal anti-discrimination laws and oversees all federal equal opportunity in employment regulations.

privacy

The interest of Uncle Sam outweighs and individual's right or the protection of the greater good outweighs an individual's right are common phrases when we refer to _____________________________.

Case Law

The law as laid down in the decisions of the courts (distinct from statutes or other sources of law).

Contract and Agency

The legal construction of employment has its roots in the traditional master/servant relationship under the common law. The legal principles surrounding that relationship grew into modern ________________ law.

Collective Bargaining

The negotiation process between unions and employers.

Comparable Worth Theory

The notion that men and women should receive equal pay when they perform work that requires comparable skills and responsibilities.

Judicial Review

The power of the Supreme Court to consider whether a law complies with the Constitution.

Employment-at-will Doctrine

The predominant rule governing employer-employee relations that states that an employer may terminate an employee at any time, for any legal reason, without incurring liability.

A worker engaged in concerted activity The employer was aware of the concerted activity The employer demonstrated hostility to the concerted activity That hostility led to a denial of an employment benefit to the worker. Additionally, and very importantly, the NLRA authorizes union election oversight by the NLRB.

The prima facie case elements, which the NLRB must establish to show a worker suffered employer discrimination for concerted activity are as follows:

Gender Discrimination

The stereotyping of how a male or how a female should act.

Medical records or payments Residential or tenant history Check writing history Employment history Insurance claims

The type of information covered by the FCRA includes:

Intrusion upon seclusion Public disclosure of private facts Placement in false light Appropriation of image or likeness

There are four separate torts under the invasion-of-privacy umbrella:

Fiduciary Duty

There were also changes in the rules governing union officers, which included the command that every union officer must act as a fiduciary in handling the assets and affairs of the union, must disclose conflicts of interest, and may not be a convicted felon. The LMRDA made it a federal crime to embezzle or steal union funds. Persons or entities that manage benefits funds are fiduciaries - guardians or caretakers - and must act with a high level of skill, due care, and prudence in that task. This requires benefit managers to operate according to the written benefits plans, diversify benefit fund investment, monitor investments, comply with law, avoid conflicts of interest, and properly fund pension plans. Failure to exercise this high duty with care may result in liability and ERISA sanctions.

Pregnancy Discrimination Act (PDA)

This Act recognizes pregnancy as a temporary disability and prohibits applicants from being discriminated against in the recruitment process because of pregnancy, childbirth, or related medical conditions (Amendment to Title VII).

Rehabilitation Act of 1973

This federal law prohibits discrimination on the basis of disability. The Act also authorizes state grants for rehabilitation services to disabled persons.

Workers' Compensation Insurance

This is a type of insurance, so employers often will investigate claims and try to deny claim to keep costs down:__________________________.

clearly employees but also those who "are susceptible to the kind of unlawful practices that Title VII was intended to remedy," such as independent contractors. It includes U.S. citizens employed by U.S. firms abroad, non-U.S. citizens employed in the U.S., and illegal aliens working in the U.S.

Title VII's application to employees includes those who are

E-verify

To check an employee's eligibility to work in the United States, employers often use __________________________.

"Key Employee" defined by FMLA

Under certain circumstances, an employer may deny job restoration to "key employees." A "key employee" is a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite.

workweek

Under the FLSA, employers define this 7-day consecutive period as the __________________________________.

Class Title VII, as well as other federal anti-discrimination statutes, protects persons from retaliation in the workplace for exercising rights under its provisions. Unlike disparate treatment based upon a class characteristic, retaliation involves adverse job action based upon an employee's lawful actions. For example, an employee cannot be subject to any negative job action for making a claim of disparate treatment discrimination under Title VII. Ironically, claimants may not have a sufficient case to make a showing that discrimination occurred, but might be able to sustain a retaliation claim for raising the discrimination challenge in the first place, if the negative job action is severe enough.

Unlike disparate treatment based upon __________ characteristics, retaliation involves adverse job action based upon an employee's lawful actions.

Back wages and legal fees; liquidated damages if the employer acted willfully Enforced by: EEOC

What are the remedies available for Age Discrimination in Employment Act (ADEA) violations?

ADA remedies are the Same as Title VII Enforced by: EEOC

What are the remedies available for Americans with Disability Act (ADA) violations?

? Enforced by: Federal Courts

What are the remedies available for Drug Free Workplace Act violations?

Fines Enforced by: Federal Courts

What are the remedies available for Employee Polygraph Protection Act violations?

Money that should have been paid plus interest, clarification of future benefits Enforced by: IRS, DOL, and Pension Benefit Guarantee Corporation (PBGC) jointly

What are the remedies available for Employee Retirement Income Security Act (ERISA) violations?

Unpaid back wages and may receive amount equal to back wages as liquidated damages (but technically no punitive damages) Enforced by: EEOC

What are the remedies available for Equal Pay Act (EPA) violations?

Civil penalties, individuals can sue Enforced by: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf

What are the remedies available for Fair Credit Reporting Act (FCA) violations?

Back wages owed and liquidated damages equal to wages owed, injunctions, willful violations may be instituted by Department of Justice, reinstatement, and recovery of legal fees Enforced by: Department of Labor

What are the remedies available for Fair Labor Standards Act (FLSA) violations?

Back pay, reinstatement, front pay, accumulation of benefits, other monetary damages, liquidated damages, attorneys' fees, cost and interest Enforced by: Department of Labor

What are the remedies available for Family Medical Leave Act (FMLA) violations?

Compensatory and punitive damages; any evidence obtained Enforced by: Federal Courts

What are the remedies available for Fourth Amendment to the Constitution of the United States violations?

Fines and/or criminal charges for employer Enforced by: Immigration and Customs Enforcement (ICE) other agencies may get involved if there are other issues--FBI (terrorism), DEA (drug smuggling), DOL and Dept. of State (visas)

What are the remedies available for Immigration Reform and Control Act violations?

"Make whole" or Informational requirements--NLRB does not assess penalties Enforced by: NLRB

What are the remedies available for Labor Management Relations Act (LMRA) violations?

Injunctions, compliance, remedies related to loss Enforced by: NLRB, DOL

What are the remedies available for Labor Management Reporting violations?

Fine, correction of hazard, and/or criminal penalties (imprisonment) Enforced by: Occupational Safety and Health Administration

What are the remedies available for Occupational Safety and Health Act (OSHA) violations?

Same as those under ADEA Enforced by: EEOC

What are the remedies available for Older Workers Benefit Protection Act (OWBPA) violations?

PDA remedies are the Same as Title VII Enforced by: EEOC

What are the remedies available for Pregnancy Discrimination Act (PDA) violations?

Civil and criminal penalties Enforced by: Federal Courts

What are the remedies available for Privacy Act of 1974 violations?

Injunctions, reinstatement with or without back pay and interest, attorney fees, and expert witness fees Enforced by: Agency's EEO counselor, but employee can also see final judicial review or final decision by EEOC

What are the remedies available for Rehabilitation Act violations?

Criminal and civil penalties for organizations and individuals who act willfully when sharing private medical information could face civil liability and criminal sanctions--including prison time Enforced by: Office of Civil Rights in the Health and Human Services Agency

What are the remedies available for The Health Insurance Portability and Accountability Act (HIPAA) violations?

Injunctions, compliance, remedies related to loss Enforced by: Arbitration, federal courts

What are the remedies available for The Norris-LaGuardia Act violations?

Up to 2 years of back pay for lost earnings, compensatory awards, punitive damages, return to job (or front pay if not realistic); employers may have to initiate an affirmative action plan Enforced by: EEOC

What are the remedies available for Title VII of the Civil Rights Act of 1964 violations?

Order of compliance, compensation for lost wages and benefits, and recovery of legal fees Enforced by: Federal Secretary of Labor

What are the remedies available for Uniformed Services Employment and Re-Employment Rights Act (USERRA) violations?

Up to 60 days' pay for affected employees, fines Enforced by: No specific

What are the remedies available for WARN Act violations?

Whistleblower may receive 15-25% of proceeds/charge Enforced by: Office of Special Counsel

What are the remedies available for Whistleblower Protection Act violations?

1 Workers gather 30% interest from current employees expressing desire to join union 2 Petition indicating 30% interest is submitted to NLRB 3 NLRB investigates to ensure it has jurisdiction, union is qualified, and no existing labor contracts exist 4 NLRB approves 5 Election agreement between union and employer 6 NLRB conducts election 7 Majority vote of those voting determines certification

What are the steps of the union organization process?

Applicable Concept: Employee

What concept most closely identifies with the following situation: A person who works for an organization for a wage or salary.

Applicable Concept: Integrated Enterprise

What concept most closely identifies with the following situation: ABC Company and XYZ Corporation share a CEO and HR Director and both use the same employee manual.

Applicable Concept: Common Law

What concept most closely identifies with the following situation: Roe v. Wade was decided at the Supreme Court level and thus became "law"

Applicable Concept: IRS 20-Factor Analysis

What concept most closely identifies with the following situation: The test that bases the determination of independent contractor status on whether the worker supplies his/her own protective equipment.

Applicable Concept: Employment At Will

What concept most closely identifies with the following situation: This allows you to quit your job without repercussions and also allows the employer to fire you at any time for any legal reason; i.e., no notice is required by either side when terminating the employment relationship.

Applicable Concept: Explicit Contract

What concept most closely identifies with the following situation: Your friend, Rashad, asks you to borrow $100 and states he will pay you back next week.

Fires an employee for filing a workers' compensation claim - Public Policy Exception Fires employee for requesting FMLA - Public Policy Exception During a performance review, supervisor tells employee she is doing a great job and will have her job for a long time - Implied Contract Exception

What exception to employment-at-will does each act by an employer violate? Fires an employee for filing a workers' compensation claim Fires employee for requesting FMLA During a performance review, supervisor tells employee she is doing a great job and will have her job for a long time

Fires an employee for missing work due to jury duty - Public Policy Exception Fires an employee even though the discipline policy in the employee handbook wasn't followed - Implied Contract Exception

What exception to employment-at-will does each act by an employer violate? Fires an employee for missing work due to jury duty Fires an employee even though the discipline policy in the employee handbook wasn't followed

Fires an employee for participating in a sexual harassment investigation - Public Policy Exception Manager ignores sexual harassment and employee quits because of it - Constructive Discharge

What exception to employment-at-will does each act by an employer violate? Fires an employee for participating in a sexual harassment investigation Manager ignores sexual harassment and employee quits because of it

Fires an employee just prior to that employee gaining "fully vested" status - Implied Covenant of Good Faith and Fair Dealing Fires employee to avoid paying a large commission - Implied Covenant of Good Faith and Fair Dealing Fires an employee because he/she wouldn't "cook the books" - Public Policy Exception

What exception to employment-at-will does each act by an employer violate? Fires an employee just prior to that employee gaining "fully vested" status Fires employee to avoid paying a large commission Fires an employee because he/she wouldn't "cook the books"

State law From the text, "For private employees, drug testing is governed primarily by state law, with most states allowing for pre-employment testing and requiring post-accident testing of employees."

What governs drug testing of private employees?

Election results are set aside

What happens if either the employer or union interfere with employees' freedom of choice?

Election is set according to NLRB rules

What happens if the parties cannot agree on election specifics?

Vote is held for no union, union #1, or union #2

What happens if there is a competing union that has 30% interest as well?

A workforce reduction at a single employment site during a 30-day period which is not caused by a plant closing. It involves workforce reductions of at least 50 full-time employees, when they comprise at least 33% of full-time employees, or the reduction of at least 500 employees.

What is a "mass layoff"?

The subject class characteristic is reasonably necessary to the normal operation of that particular business or enterprise.

What is a bona fide occupational qualification?

Given that the request is legitimate, an employer has the duty to provide the employee with a reasonable accommodation absent an undue hardship to the business. The level of accommodation has been characterized by the courts as "de minimus," meaning not very much. For example, a Seventh-Day Adventist who wishes not to work Saturdays may be given permission to change shifts with another employee. The employer is not required to change its shift management schedule, order other employees to work alternate shifts, violate seniority rules to accommodate an employee

What is an employer's responsibility for accommodating shift changes for those requesting days off due to religious observance?

Could include, among other things, sexual or other harassment, failure to accommodate a disability, or excessive pressure to retire.

What is an example of constructive discharge?

The employer is not required to change its shift management schedule, order other employees to work alternate shifts, violate seniority rules to accommodate an employee, and so on. This would constitute an undue hardship to the employer. When looking at whether an accommodation is a hardship, courts look to the employer's efforts, the cost of accommodation in terms of wages and administration, the type of job involved, and the size of the employer. Employees requesting an accommodation must cooperate and may not demand a particular accommodation other than a reasonable one offered by the employer.

What is important for the employer to consider after an employee makes a request for accommodation because of religious reasons?

- to safeguard employees' rights to organize and to determine whether to have unions as a bargaining representative. - to prevent and remedy unfair labor practices committed by private sector employers and unions. - provides the legal framework and supervision for union elections and decertification in the private sector. - empowered to investigate charges by employees, unions, or management of unfair labor practices. - has executive, legislative-ruling making, and judicial authority. - may determine the merit of claims and adjudicate labor disputes through the use of administrative law judges. By that authority the NLRB may compel compliance with its rulings by appeal to the U.S. Court of Appeals.

What is the National Labor Relations Board (NLRB) and what are its main functions?

Under the FMLA provisions, an employee is entitled to twelve weeks annual unpaid leave if the employee has worked for the firm for 1,250 hours in the twelve months prior to taking leave, experiences a qualifying event, and provides timely notice to the employer. A 2008 amendment allowed for a twenty-six week period of leave for qualifying family members of a veteran seriously injured in the line of duty.

What period of leave is allowed under FMLA provisions?

Consumers refuse to buy products from All Toys, Inc. because they do not agree with its business practices - Boycott

What type of strike or protest does this action represent: Consumers refuse to buy products from All Toys, Inc. because they do not agree with its business practices

During the collective bargaining process, the union and management cannot agree to terms related to shift premiums - Impasse

What type of strike or protest does this action represent: During the collective bargaining process, the union and management cannot agree to terms related to shift premiums

Management at All Toys, Inc. is frustrated with the union's demands and refusal to bargain; therefore, replacement employees for the striking workers are hired - Lockout

What type of strike or protest does this action represent: Management at All Toys, Inc. is frustrated with the union's demands and refusal to bargain; therefore, replacement employees for the striking workers are hired

The union decides to strike because it wants higher profit sharing for All Toys, Inc. workers - Economic Strike

What type of strike or protest does this action represent: The union decides to strike because it wants higher profit sharing for All Toys, Inc. workers

Workers at All Toys, Inc. strike because they believe management is not bargaining in good faith - Unfair labor Practice strike

What type of strike or protest does this action represent: Workers at All Toys, Inc. strike because they believe management is not bargaining in good faith

Workers from Local 54 at All Toys, Inc. decide to strike without getting approval of the union - Wildcat Strike

What type of strike or protest does this action represent: Workers from Local 54 at All Toys, Inc. decide to strike without getting approval of the union

Drug/Alcohol Employers can choose to administer drug/alcohol tests to employees and perspective employees to ensure safety

What type of testing would be allowed in this scenario: A transportation company is hiring for new drivers. The company already runs a driving record background check.

None Allowed Employers can administer medical/physical tests but not to discriminate against employees in terms of employment including benefits.

What type of testing would be allowed in this scenario: Before Hullabaloo Inc. decides on medical insurance premiums for its employees, it wants to assess the health of current employees to determine if they have pre-existing conditions or if they are likely to develop diseases in the future.

Drug/Alcohol There are no laws that prevent employers from administering drug/alcohol tests and they are at the perogative of the employer to ensure a drug-free workplace.

What type of testing would be allowed in this scenario: Phil, an employee at Ooopsie, LLC had an accident on the job. Ooopsie immediately decides to investigate.

Honesty Testing Honesty/integrity tests are often used to ensure a good person-organizational fit.

What type of testing would be allowed in this scenario: Pollyanna Co. has an ethics code of which it is extremely proud. It wants to ensure any candidates who it interviews are also ethical and will identify with its ethics policy.

Medical/Physical When the job requires strenuous activity

What type of testing would be allowed in this scenario: The job of the firefighter is very physically demanding and requires lifting, running, climbing, lifting, and long periods of strenuous activity.

Authorization cards

When a threshold number of workers - 30 percent of the appropriate bargaining unit - sign authorization cards to seek union formation, they petition the NLRB to authorize an election. 1.2

Pattern and Practice

When an employer's policies have the effect of discrimination for no legitimate business necessity.

The ADEA prohibits the imposition of a mandatory retirement age. Two exceptions include: 1) firefighters and police officers; and 2) a small number of corporate executives who carry substantial discretionary authority and will have a company pension of at least $44,000.

When are employers allowed to force retirement?

Sometimes a contingent or temporary worker, hired on an ad hoc basis from an employment agency, may become a full-fledged employee for federal law purposes if he or she works for a long time for an employer and performs the same work, and in the same circumstances, as a traditional employee.

When might a contingent employee (or temporary worker) hired from an employment agency be considered an employee?

Partners, corporate officers, directors, and major shareholders are not employees.

Which members of an organization's leadership are exempt from employee status?

Gender harassment Sexual harassment does not necessarily involve sexual motive, sexual behavior, or requests for sexual favors.

Which of the following is always involved in a case of sexual harassment?

Pervasive conduct Unwelcome conduct

Which two types of conduct make a company liable for race-based harassment?

Those employees and candidates for employment who are able to perform essential duties of the job with reasonable accommodation Coverage type: ALL Coverage size: >=15 employees

Who does the Americans with Disability Act (ADA) protect?

ALL Coverage type: Federal Contractors Coverage size: contracts > $100k

Who does the Drug Free Workplace Act protect?

ALL Coverage type: Private (some national defense, security contractors, FBI, private security firms, and pharmaceutical firms may be exempt) Coverage size: ALL

Who does the Employee Polygraph Protection Act protect?

All workers with a pension plan or retirement savings account Coverage type: Private sector employers that offer plans--does not apply: tax-exempt churches, workers' compensation plans, or foreign plans for non-resident aliens Coverage size: N/A

Who does the Employee Retirement Income Security Act (ERISA) protect?

Women Coverage type: ALL Coverage size: ALL

Who does the Equal Pay Act (EPA) protect?

FCRA covers ALL Coverage type: ALL Coverage size: ALL

Who does the Fair Credit Reporting Act (FCRA) protect?

Most--except children working for parents and some agricultural workers Coverage type: ALL--Some small employers may be exempt, but are most likely covered by state law Coverage size: Most

Who does the Fair Labor Standards Act (FLSA) protect?

ALL employees (except "key" employees) Coverage type: Private Sector Public Sector Coverage size: >=50* ALL

Who does the Family Medical Leave Act (FMLA) protect?

ALL Coverage type: Public Coverage size: ALL

Who does the Fourth Amendment to the Constitution of the United States protect?

Employers, citizens, and non-citizens Coverage type: ALL Coverage size: >=4 employees

Who does the Immigration Reform and Control Act protect?

Designed to curb union overreaching. Taft-Hartley amended the NLRA to protect a worker's right not to engage in concerted activity and outlined the unfair labor practices in which a union could engage.

Who does the Labor Management Relations Act (LMRA) protect?

Workers and unions covered by the NLRA and Railway Labor Act Coverage type: Private Coverage size: ALL

Who does the Labor Management Reporting and Disclosure Act protect?

Employees who belong to a union or which to belong to a union Coverage type: Private Coverage size: ALL

Who does the National Labor Relations Act (NLRA) protect?

OSHA covers ALL Coverage type: ALL Coverage size: ALL

Who does the Occupational Safety and Health Act (OSHA) protect?

Employees receiving special benefits upon early retirement Coverage type: ALL Coverage size: >=20 employees

Who does the Older Workers Benefit Protection Act (OWBPA) protect?

Those employees or candidates for employment who are pregnant or may become pregnant Coverage type: ALL Coverage size: >=15 employees

Who does the Pregnancy Discrimination Act (PDA) protect?

Employees and candidates for employment who are able to perform essential duties of the job with reasonable accommodation Coverage type: Federal or those receiving federal assistance Coverage size: ALL

Who does the Rehabilitation Act protect?

ALL with health insurance options Coverage type: ALL Coverage size: >=20 employees

Who does the The Consolidated Omnibus Budget Reconciliation Act (COBRA) protect?

ALL Coverage type: ALL entities that process medical information or deliver health care services or benefit plans Coverage size: ALL

Who does the The Health Insurance Portability and Accountability Act (HIPAA) protect?

Employees who belong to a union or wish to belong to a union Coverage type: ALL Coverage size: ALL

Who does the The Norris-LaGuardia Act protect?

Protected classes based on race, color, sex, religion, and national origin Coverage type: ALL Coverage size: >=15 employees

Who does the Title VII of the Civil Rights Act of 1964 protect?

Employee Reservists and National Guard--non-career service military Coverage type: ALL Coverage size: ALL

Who does the Uniformed Services Employment and Re-Employment Rights Act (USERRA) protect?

ALL Coverage type: Public-Federal Coverage size: ALL

Who does the Whistleblower Protection Act protect?

managers of federally-funded projects, contractors and their subcontractors doing business with the federal government

Who must practice Affirmative Action?

It is viewed after, not during, transit From the text, "Searching email is not prohibited by the EPCA because it is viewed after, not during, transit. Because email is a permanent record and is discoverable in court, employers have a strong interest in protecting themselves from errant emails. The general rule is that when the employer is providing the computer and email service, it is free to read employee email messages pursuant to a business purpose."

Why is searching emails not prohibited by the EPCA?

Tips for passing

You kinda want to at least skim the text in this one. The recorded cohorts are vague and not that helpful, but maybe listen to them while studying. Click on Assessments in the text and do all of the end of topic quizzes. If you get less than 85% or so on any topic, do that all of that topic's mini quizzes. At the bottom are 2 end of class quizzes. Do the one with 70 questions. If you get over 80% or so, you should be good. If you get less, study a little more then do the other longer one.

Montana Wrongful Discharge From Employment Act Montana Wrongful Discharge From Employment Act of 1987 prohibits termination for other than good cause once an employee has successfully passed a probationary period and allows for an employee to seek arbitration for a termination dispute.

_____________ prohibits termination for other than good cause once an employee has successfully passed a probationary period and allows for an employee to seek arbitration for a termination dispute.

FLSA

__________________________ defines dangerous occupations and regulates what types of jobs workers under 16 may have.

Exempt employees

___________________________________ may not be entitled to overtime under FLSA.

McDonnell Douglas, Corp. v. Green This case involved Mr. Green's activist activies against the defense contractor.

_______________is the foundational case that establishes the notion of pretextual discrimination.

Due process

notice and an opportunity to be heard (part of LMRDA union member "bill of rights") 12.8

Respondeat Superior Doctrine

respondeat superior - "let the master answer for the servant." Under respondeat superior doctrine, an employer is only responsible for the employee action performed within the scope of employment. 9.6

Lock Out

An employer's temporary work stoppage initiated during a labor dispute.

Tangible Job Action

An employment outcome arising out of sexual harassment.

Fiduciaries

An entity that acts as a guardian or caretaker.

Consumer Reporting Agency (CRA)

An entity that collects and provides information about persons for use in credit and/or employment evaluation.

Impairment

Any loss or abnormality of a person's physical or mental state.

Federal Whistleblower Statute

Enacted in 1982, it protects contractor employees from employment discrimination or retaliation for reporting company violations of the law.

Common Law Criminal Conspiracy

A combination of two or more individuals planning to accomplish an unlawful purpose.

Customer Discriminatory Preference

An unacceptable pretext of discrimination in which an employer uses race as the basis for a business decision in order to please customers.

Concerted Activity

Any effort by employees to join together to seek improvement in working conditions.

U.S Constitution

Established America's national government and fundamental laws, and guaranteed certain basic rights for its citizens.

Federal Mediation and Conciliation Service (FMCS)

Established by Taft-Hartley, an agency to help management and laborers settle labor contract disputes.

Executive Order 11246

Issued in 1965, it requires that government contractors take affirmative action toward prospective minority employees in all aspects of employment.

Reasonable Action

Sensible action taken to remedy an injustice or imbalance.

This claim, which is limited in its recognition, exists when a third party, perhaps a co-worker or client, pressures the employer to terminate an employee without cause.

Describe how intentional interference with a contract may happen.

Disparate Treatment

Theory of discrimination based on different treatment given to individuals because of their race, color, religion, sex, national origin, age or disability status. McDonnell-Douglas v Green 1973

Employer

One who employs the services of others in exchange for wages.

RFOA, RIF, Hazen Paper Co. v. Biggins

What are some applicable employer defenses to age discrimination claims?

That a contract which cannot be performed within a year of its creation must be in writing

What is required by the statute of frauds?

On 25 June, 1941, President Franklin D. Roosevelt issued Executive Order 8802, which declared that full participation in national defense programs by all U.S. citizens, regardless of race, creed, color, or national origin was federal government policy.

Executive Order 8802

Retaliation Claim

A complaint filed by an employee who feels he or she was discriminated against in violation of the law.

Disability

A physical or mental condition that hinders an employee's movement or activities.

Voluntary Affirmative Action Plan

A plan put into place by an employer whose self-analysis reveals effects of past discriminatory action.

Covenant of Good Faith

A presumption that each party in a contract will deal with each other in good faith and fairness.

Implied Covenant of Good Faith and Fair Dealing

A presumption that each party in a contract will deal with each other in good faith and fairness.

Mediation

A procedure for resolving collective bargaining impasses by a mediator (third party with no formal authority) who acts as a facilitator and go-between in the negotiations.

Arbitration

A procedure for resolving collective bargaining impasses by which an arbitrator (third party) choose a solution to the dispute.

Economic Strike

A stoppage of work based upon a union's frustration that management will not meet its demands for improvements in wages, hours, and benefits.

Unfair Labor Practices Strike

A stoppage of work in order to pressure management to follow the law.

Wildcat Strike

A strike by a portion of workers that is not authorized by the union.

Economic Realities Test

A test that classifies a worker as an employee if the employee is substantially economically dependent on an employer.

Common Law Agency

A test that classifies a worker as an employee if the employer maintains the right to control the method of work performed.

Job Group Analysis

A tool that groups jobs within an organization by responsibilities and potential and then analyzes characteristics of each employee in the job group.

Continuous Leave

A type of leave in which an employee is absent from work for a continuous length of time.

Intermittent Leave

A type of leave in which an employee is intermittently absent from work.

Defined Contribution Pension Plan

A type of pension plan in which an employer sets aside a certain amount each year for the employee, to be distributed upon retirement.

Defined Benefit Pension Plan

A type of pension plan that provides a fixed amount payment upon retirement.

Steering Assignments

A type of race discrimination in which an employer hires a minority and assigns him or her to a less-desirable position.

Racial Animus

A type of race discrimination in which an employer obviously excludes an applicant from a job opportunity on the basis of race.

Intrusion Upon Seclusion

A type of tort in which an employer intrudes upon an employee's private information.

Undue Hardship

An accommodation to the work environment that places a significant burden or expense on the employer.

WARN Act (Worker Adjustment and Retraining Notification Act)

Because a tornado decimated Blah Blah Inc.'s plant and forced it to close, the _________________________ does not apply.

the Fair Credit Reporting Act

Because of ___________________________, employers are permitted to investigate a prospective employee's credit history.

Defamation

Communicating false statements that harm a person's reputation.

An implied contract is a legally binding agreement which is created, not through formal contract negotiation and documentation, but by the actions of the employer and the employee.

Describe and give examples of the following type of employment contracts: Implied Contracts

Contracts and union collective bargaining agreements may lessen the brunt of the at-will doctrine by providing for specific terms of employment or termination only for cause - poor employee performance or misconduct - or economic exigencies.

Describe and give examples of the following type of employment contracts: Union Contract

Exists when an employer allows intolerable conditions of unfairness or mistreatment to exist at work to such a degree that no reasonable employee would feel he or she had any other option but to quit.

Describe constructive discharge.

quid pro quo hostile environment

Describe the two types of sexual harassment

Disparate Impact Discrimination

Discrimination in which a plaintiff claims not that the employer intentionally discriminated, but rather the employer's procedures, policies, or practices have the effect of creating an unnecessary obstacle to employment opportunity for a protected class. Washington v Davis 1976

Reverse Discrimination

Discrimination that occurs when an employer, acting under an affirmative action plan, favors one race or gender in an employment decision.

Gender Plus Discrimination

Discrimination that results when an employer classifies employees on the basis of gender, plus another characteristic.

bias against Muslims.

EEOC statistics show that, annually, 20 percent of employee complaints of religious discrimination involve

Scope of Employment

Employee conduct that is reasonably relative to a job description.

tort claims A tort is a wrongul act which infringes on the rights of another. If an employer engages in wrongful behavior towards an employee, the employee may have a civil claim against the employer.

Employees may claim wrongful termination through _________ or constructive discharge.

Exempted Employee

Employees who are fully or partially free from FLSA provisions.

Comparative Evidence

Evidence of discrimination that is found by comparing two similarly situated employees who were treated differently because of a class characteristic.

On March 6, 1961, Kennedy signed Executive Order 10925, which mandated that managers of federally-funded projects "take affirmative action" to eliminate bias in employment practices. This changed the effort to eliminate employment discrimination from the passive to the active.

Executive Order 10925

E-Verify is an internet-based system operated by the federal government which allows an employer to determine the eligibility of an employee to work in the United States using information reported on that employee's Form I-9, Employment Eligibility Verification.

Explain employer's use of E-verify and how it ascertains worker eligibility

Under this statistical test, any hiring criteria may be deemed discriminatory if the selection rate of a protected class is less than 80 percent of the majority.

Explain how to measure unlawful disparate impact using the four-fifths (4/5) rule (aka the 80% rule).

The employer must be very careful to avoid a claim that termination was motivated by retaliation. However, if an employee deserves termination, the employee's failings have been adequately documented, and all progressive discipline steps been unsuccessful, then the employer is justified in terminating the employee.

How can an employer protect itself against a wrongful termination, termination based on discrimination, or retaliation claim?

44 As stated in the text, at least 44 states recognize this exception.

How many states recognize the public policy exception?

FMLA (Family and Medical Leave Act of 1993)

Juan, Kenya's husband, wants to take two weeks off when the baby comes home. He may be entitled to leave under _____________________.

50

Kenya may not be entitled to any additional leave if her employer has fewer than ____________________________ employees.

FMLA (depending on time worked and company size)

Kenya, an Administrative Assistant, just had a baby. She used all of her PTO time but wants to stay home a bit longer. She may be entitled to leave because of ________________________.

Civil Law

Laws that deal with the rights of people rather than with crimes.

Right-to-work Laws

Laws that give employees the option to not join a union.

1) Governs release of private information about public employees 2) Employees have access to personnel files, a method to correct erroneous information in the file, and power to prevent release of information in the file 3) Duty on employer to ensure privacy and accuracy

Main provisions of Privacy Act of 1974

I can't believe they hired that kid out of college when James has 20 years experience. - ADEA I'm not going to hire any women. - disparate treatment If you would like a new chair because of back problems, please provide a doctor's note. - Reasonable accommodation If you sleep with me, I'll let you choose your next assignment. - Quid Pro Quo harassment

Match each statement with its likely applicable law or corresponding vocab word: I can't believe they hired that kid out of college when James has 20 years experience. I'm not going to hire any women. If you would like a new chair because of back problems, please provide a doctor's note. If you sleep with me, I'll let you choose your next assignment.

We are going to "right" the "wrongs" of the past at Right Way, Inc. - Affirmative Action You have to be a woman to be a ladies' washroom attendant at Fancy, Inc. - BFOQ I'm a woman, was qualified, applied for that job, was denied, but they kept the posting up. - Establishing a prima facie case

Match each statement with its likely applicable law or corresponding vocab word: We are going to "right" the "wrongs" of the past at Right Way, Inc. You have to be a woman to be a ladies' washroom attendant at Fancy, Inc. I'm a woman, was qualified, applied for that job, was denied, but they kept the posting up.

We have to do a credit check for anyone working in our plant. - disparate impact Marquis got hurt and now cannot groom himself without assistance. - Disability If I give Sasha every Saturday off because of religious reasons, Andre then has to work. - Undue hardship These lewd, bias jokes are inappropriate and happen too much! - Hostile environment

Match each statement with its likely applicable law or corresponding vocab word: We have to do a credit check for anyone working in our plant. Marquis got hurt and now cannot groom himself without assistance. If I give Sasha every Saturday off because of religious reasons, Andre then has to work. These lewd, bias jokes are inappopriate and happen too much!

negligent reference

Megan has applied at Boo Corp. Boo Corp calls her previous employer and asks about her work habits and history. Her previous employer does not divulge her numerous accidents on the job or her three separate violent interactions with co-workers. Boo Corp, not hearing anything negative decides to hire Megan, who then assaults and injures her supervisor. In this example, Megan's previous employer could be liable based on __________________________________.

NLRA

National Labor Relations Act

Discovery

Procedures for gathering facts prior to the time of trial in order to eliminate the element of surprise in litigation.

established the "political function doctrine"

Sugarman v. Dougall, 413 U.S. 634 (1973)

The employee has a burden to provide the employer with health care provider certification that a serious health condition exists and provide timely notice to the employer

Summarize the employee's responsibility when requesting FMLA leave.

Twenty While some regulations apply to employers with only 15 employees, "the ADEA applies to public and private employers and unions with more than 20 employees."

The ADEA applies to public and private employers and unions with more than _______ employees.

20 or more employees, provides that benefit coverage extends 18 months (in some cases 36) from the date of a qualifying event.

The COBRA law, which applies to firms with

Privacy

The right of an individual to be left alone.

Griggs v. Duke Power The seminal case establishing the concept of disparate impact is Griggs v. Duke Power, 401 U.S. 424 (1971).

The seminal case establishing the concept of disparate impact is:

Four-fifths Rule

The simplest and most common way of estimating adverse impact by ruling a screening device as discriminatory if its selection rates of a protected class are less than 80% of the majority.

Essential Functions

The skills, talents, and education necessary to carry out a job.

there is no discriminatory purpose or effect. Nevertheless, the English-only rule must be justified by "business necessity." Some examples of this include the need to communicate effectively with coworkers, supervisors, and customers, to address safety requirements, and to protect employees in emergency situations. Consequently, English-only rules need to be narrowly drafted to meet the specific business need.

Title VII allows for English-only rules under certain circumstances where

federal, state and local government employers and employment agencies and labor unions.

Title VII also applies to

fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year

Title VII covers employers who have

employers' businesses operated in proximity to Native American reservations from preferring Indians over others for jobs, nor does it prevent religious organizations or associations from conducting their affairs.

Title VII does not prevent

Ethnicity

Traits, background, allegiance, or association.

Age Discrimination

Treating an applicant or employee less favorably because of his or her age.

the burden is on the former employer to affirmatively prove that the statement or information was truthful.

Truth is an absolute defense to defamation claims, but

key employees

Under FMLA, ______________________________ may be denied leave if that leave will impede business operations.

imperiled national health or safety. President Bush employed this provision in 2002 when he shut down an 11-day West Coast port workers strike which was costing the nation's economy $1 billion a day.

Under Taft-Hartley the executive branch of the federal government was empowered to obtain legal strikebreaking injunctions in the courts if an impending or current strike

Breach of Duty

Under the doctrine of negligent referral, an employer may be liable for providing untrue reference information which omits a former employee's dangerous and/or criminal behavior. 10.1

USERRA

Uniformed Services Employment and Reemployment Rights Act

Termination only for cause Poor employee performance or misconduct Economic exigencies

Way that unions attempt to lessen the blow of at-will doctrine

Volunteers, who are not employees, may become employees if their service results in the conferral of benefits such as a pension, group life insurance, workers' compensation, or access to professional certification. The test is whether the benefits constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship."

What action(s) may require a volunteer to be classified as an employee?

The law favors the employer in this area. Most employees do not understand that the fundamental privacy protections implied by the Constitution apply to governmental intrusion and not to employer action. Consequently, with sufficient notice and an articulated and legitimate business purpose, employers may engage in a wide range of monitoring activities which otherwise might be inimical to employee privacy. Privacy is protected in the workplace by reference to the Constitution, federal statutes, and the common law.

What are potential limitations to employee privacy?

A qualifying event is: Birth, adoption, or placement of a new foster child A serious health condition of the employee, or the employee's spouse, son, daughter, or parent. Other family obligations are not covered. The FMLA applies to both men and women. In 2010, the leave provisions were expanded to include de facto parents of seriously ill children.

What are qualifying events for FMLA leave?

strikes, mediation, lockout

What are some strategies for resolving labor disputes?

Applicable Concept: Public Policy Exception

What concept most closely identifies with the following situation: You are the HR Generalist for Little Manufacturing Co. A big project just came in and your boss has directed you to deny all FMLA leave requests. You explain that you can't do that because Little Manufacturing has 75 employees and is bound by law to offer FMLA to eligible employees with qualifying events. Your boss storms off in a huff. A week later, Saree, a full-time supervisor in the accounting department requests FMLA due to her impending labor and provides documentation from her doctor. You grant her the leave and then are subsequently fired.

Applicable Concept: Implied Contract

What concept most closely identifies with the following situation: You hire Miquel and during his offer interview, you state that the salary is $62,000 per year. After six months, Miquel's supervisor decides he is not right for the job or organization and fires him. Miquel believed he would be there for a year because of how his salary was quoted.

Applicable Concept: Respondeat Superior Doctrine

What concept most closely identifies with the following situation: Your friend, Missy at Big Box, Inc. calls you to get knowledge on Bobby Boxer an applicant she is considering. You are hesitant to provide any information because you are worried about repercussions, but Missy explains to you that you are protected under the law as long as you keep your comments related to the work Bobby performed while he was employed at your organization.

if a worker is an independent contractor, the employer is not subject to wage and hour laws, anti-discrimination laws, federal employee tax withholdings, or vicarious liability law. Given these factors, employers are often eager to classify workers as independent contractors rather than employees.

What is an independent contractor?

U.S. law is based on the English and American common law, which consists of opinions of judges in cases covering hundreds of years.

What is common law and how does it get created?

The employer must remember when terminating employees to treat all employees exactly the same. Disparate treatment of employees in the termination process is just as unlawful as in the on-boarding process. Ex: Noonan v. Staples, Inc.

What is important for employers with regard to how they treat employees during termination?

treatment is on purpose, impact is not intentional

What is the difference between disparate treatment and disparate impact?

Whether the employer has clearly defined the business purpose of the factor Whether the factor itself is clear and applied fairly The extent to which managers and supervisors are trained to apply the factor without engaging in discrimination The extent to which supervisor discretion is limited or based on subjective judgments The extent to which older employees are impacted by the practice The degree of harm to individuals within the protected age group

What is used to determine whether an employment practice was based on a reasonable factor other than age?

The employer may require the employee to see a company-paid physician to make an additional assessment if it has concerns about the validity of the certification provided.

What limitations or requirements may an employer impose on employees requesting FMLA leave?

IRCA

What requires employers to perform due diligence in ensuring prospective employees are eligible to work in the United States?

Medical records

Which type of information is covered by the Fair Credit Reporting Act?

Employees/applicants 40+ years of age Coverage type: ALL Coverage size: >=20 employees

Who does the Age Discrimination in Employment Act (ADEA) protect?

Non-exempt Employee

Workers who are normally paid an hourly wage and are entitled to earn overtime the FLSA allows employers to exempt certain employees from its provisions either fully or partially depending on the nature of the work position. Titles do not matter, as it is the nature of the duties performed which determines exempt status. Employers must keep accurate job descriptions that support the exempt status or face large fines for mischaracterization of employees.

Also

Write on your whiteboard each law and the workplaces it applies to (look in the excel study guide, there's a tab with a table) so while you're studying you have right in front of you Title VII, PDA, etc - 15, ADA - 20, and so on.

one who, with or without an accommodation, possesses the skills, talents, education, and other abilities necessary to carry out the essential functions of the job.

a qualified individual is

$100,000 require contractors and subcontractors to undertake AA for specified categories of veterans, which include a priority referral requirement for employment openings.

Amendments to The Vietnam Era Veteran Readjustment Assistance Act of 1974 require that federal contracts entered into after 1 December 2003, and worth more than _________________

A consumer report (Section 1681 of FCRA)

Any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used, or expected to be used, or collected in whole, or in part, for the purpose of serving as a factor in establishing the consumer's eligibility for... employment purposes... is known as:

American life or law Kennedy stated: "Next week I will ask the Congress of the United States to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law."

John F. Kennedy made the proposition to Congress that race had no place in:

federal contracts entered into after 1 December, 2003, and worth more than $100,000 require contractors and subcontractors to undertake AA for specified categories of veterans, which includes a priority referral requirement for employment openings. This legislation also requires employers to report on the number of current employees who are veterans.

The Vietnam Era Veteran Readjustment Assistance Act of 1974 carries the same purpose for veteran workers. Amendments to the act require that

The plant shutdown or layoffs are due to a natural disaster The firm experiences a severe and unforeseen loss of capital When the company is faltering and giving notice would prevent obtaining capital to continue operations

The WARN allows for an employer to escape the notice requirements if:

The release of private information by federal agencies about public employees From the text, "Federal employers must ... comply with the provisions of the Privacy Act of 1974, which governs the release of private information by federal agencies about public employees."

What does the Federal Privacy Act of 1974 govern?

Intercepting by electronic means any employee wire, oral, or electronic communications Accessing, without permission, stored electronic communications

The Electronic Communications Privacy Act (ECPA) prohibits employers from purposefully:

were inadequate.1

According to a survey done by Salary.com, some 90 percent of employee performance appraisals

Layoffs due to a severe unforeseen loss of capital

A manufacturing firm with 370 employees plans to close one of its plants and lay off 56 employees. To facilitate the plant closure and allow its employees time to seek other employment, the firm gives the employees 40 days' notice of the impending closure. Because of financial troubles, the firm is not providing severance packages. Which circumstance allows the firm to take these actions without violating the Worker Adjustment Retraining Notification (WARN) Act?

In 1969, President Nixon authorized the implementation of the Philadelphia Plan, which, for the first time, required contractors to establish specific goals and timetables for correcting imbalances in employment practices. The creation of preferences and goals has led to the forty-year-old debate over whether AA is simply a way to establish unlawful quotas for race, ethnicity, or gender.

Philadelphia Plan

suffer termination, layoffs longer than six months, or a 50 percent reduction in work hours.

Under WARN, affected employees are those who

Yes. Because the agency is a government entity, the employees are protected from drug searches unless there is reasonable suspicion that they are engaged in drug use.

A government agency wants to drug test its employees, but it is concerned about legal ramifications of possible privacy concerns regarding its testing. To address these concerns, the firm conducts pre-employment drug screening and random drug testing of employees each quarter. Should the firm be concerned about legal challenges to its policy?

1) the position exists to perform the function; 2) there is a limited number of workers among whom the function may be distributed; and 3) the task is highly specialized."

A job function may be considered essential for any of several reasons, including:

he or she will not be considered disabled. For example, twin pilots who suffered from vision problems, which were fully corrected by prescription lenses, were not considered disabled for ADAAA purposes. In contrast, for example, a person with a seizure disorder who is taking medication and is therefore seizure free is still a covered employee under the ADA. This mitigating circumstance—the medication—does not disqualify him. It further provides that impairments that last only a short period of time qualify for protection under the ADAAA for the duration of the disability. In other words, the disability may be temporary. This is an express repudiation of court cases holding that a disability must be permanent for ADA protection to apply.

ADAAA clarifies that if a person can be made substantially whole through corrective devices

Difficulty walking or climbing stairs Over 30 million Americans have a difficult time walking or climbing stairs.

According to the U.S. Census Bureau, the largest claim for disability comes from:

only about 20 percent of the workforce.

Affirmative action applies to

The Federal Mediation and Conciliation Service must be notified.

After good faith negotiations, an employer and a labor union cannot resolve an issue and have reached an impasse. What does the National Labor Relations Act (NLRA) require in this situation?

Does the employee meet the eligibility requirements?

An employee claimed the need for special treatment based on Title VII of the Civil Rights Act of 1964. What is the first question a human resources professional should ask to determine if this law applies to the employee?

Federal contract of over $100,000 and work performed in the United States within the last 120 days From the text, "A covered contractor is one who has an agreement to do certain type of work for the federal government valued at more than $100,000 for work that is performed in the United States and within a period of at least 120 days."

By 2009, the Department of Homeland Security started requiring covered contractors to enroll in E-Verify. What defines a covered contractor?

In 1965, President Johnson issued Executive Order 11246, which required that contractors and their subcontractors doing business with the federal government must have a nondiscrimination clause in contracts and abide by its terms. The Order requires government contractors to "take affirmative action" toward prospective minority employees in all aspects of hiring and employment.

Executive Order 11246

any federal contract for services with a value over $10,000 must include anondiscrimination clause with which the contractor must comply.

Executive Order 11246 requires that

Department of Justice The Department of Justice pursued litigation for discrimination claims until 1972.

During its first few years, the EEOC lacked enforcement authority and had power only to investigate discrimination and then refer meritorious claims to the _________________ to pursue through litigation.

- case involving disparate treatment discrimination arising out of performance appraisals actually involving a lack of appraisals. - a woman lawyer in a prestigious New York City law firm was able to show that over a twelve-year period she received, after repeated requests, only one performance appraisal before she was terminated, while during the same time period two younger male counterparts each received nine appraisals. Moreover, the sole appraisal Esterquest received did not include a plan for remediation of her performance deficiencies or a path to promotion, which was included in other employee's evaluations. Under these circumstances she was able to show age and gender discrimination.

Esterquest v. Booz, Allen & Hamilton

The ultimate ideas about life, purpose, and death Under Title VII, beliefs become religious beliefs when they are based on the ultimate ideas about life, purpose, and death.

For Title VII purposes, religious beliefs cover:

At least one The ADAAA provides that a disability need not limit all major life activities, merely one.

How many life activities must an impairment limit to be considered a disability?

Three : one From the text, "IRCA requires employers to retain the Form I-9 in a file, separate from the standard personnel file, for a period of three years after hire or one year after termination, whichever is longer."

IRCA requires employers retain the Form I-9 in a file, separate from the standard personnel file, for a period of ________ year(s) after hire, or ________ year(s) after termination, whichever is longer.

Eight From the text, "The regulations require the employee to contact the appropriate federal agency within an eight-day window from the time of notice."

If E-Verify gives a tentative nonconfirmation response, how many days does the employee have to contact the appropriate federal agency?

the negative referral provided by the former employer was in response to an employee's claims of discrimination or acts of whistleblowing. The U.S. Supreme Court held that the term "employees" as used in the retaliation section of Title VII extends to former employees.

In a retaliation referral claim, a former employee must show that

Substantially younger

In age discrimination cases, it is important to note that a favored younger employee may be over 40 years old. The key is that the favored employee must be ______________ than the complaining employee, not that the favored employee is outside the protected class.

Contributory negligence-the worker's errant conduct that contributes to the injury Assumption of the risk-the worker knew and accepted the risk of potential injury; and Fellow servant rule-another employee, not the employer, caused the injury. Additionally, there were no national safety standards for the workplace, so work safety regulations and remedies to injured workers were uneven.

In common law, an injured employee could make a tort claim against an employer for negligence if the employer's breach of the duty to provide a safe workplace caused the worker's injury. However, three employer defenses severely limit the relief an injured worker could obtain. These are:

Tort From the text, "The common law definition of a tort is the commission of a civil wrong which causes someone to suffer loss or harm resulting in legal liability. Invasion by an employer into the private affairs of an employee may be the tort of invasion of privacy."

Invasion by an employer into the private affairs of an employee may be the ______ of invasion of privacy.

- in 1964 the New York State Commission for Human Rights had determined the sheet metal workers' union had systematically excluded African-Americans from the union and from obtaining apprenticeships. - After 18 years of not complying with court orders to stop discrimination, the Supreme Court affirmed a lower court order, entered in 1975, imposing an AA plan remedy upon the union which required a fund be set up, and other action taken, to assist in reaching the goal of 29 percent non-white membership in the union. The duty to comply with imposed AA plans evaporates once the problem has been addressed.

Local 28, Sheet Metal Workers v. EEOC

Race : religion

Nation of origin employment discrimination is often linked to ________ and ____________ discrimination because those factors are closely associated with a specific country or ethnic group and often the same set of facts support the varied claims.

- a white medical school applicant challenged the University of California at Davis' policy of setting aside 16% of admission spots for "disadvantaged" minority applicants who could also compete in the standard applicant pool. Mr. Bakke was qualified to be admitted, and he argued that the strict 16% standard was an impermissible quota and unfair. - While not dismissing the principles of AA, the Supreme Court agreed that the AA method used by the university was unlawful, as it gave an unwarranted advantage to minority applicants.

Regents of the University of California v. Bakke (Bakke)

is discriminatory. Submitting only a certain nation of origin group to eVerify but not U.S. citizens also violates Title VII.

Requesting specific documents from aliens to establish work eligibility, but allowing U.S. citizens to choose which documents will support the right to work

- candidates for firefighting positions in New Haven, which was seeking to promote the hiring of non-white firefighters, were required to complete a validated qualification test. When the test revealed that non-white applicants did not perform as well as white candidates, the city threw out the test as a qualifying mechanism and started the hiring process anew. - The Supreme Court held that New Haven had violated Title VII because the test was valid and the decision not to use it was "race-conscious."

Ricci v. DeStefano, 557 U.S. 557 (2009)

- Defined the scope of "record of impairment" and "regarded as disabled" criteria of the Rehabilitation Act - The Nassau school board fired a teacher who had recently recovered from a documented third bout of tuberculosis, for fear that the disease would return and pose a risk to school children. - The Supreme Court held that the teacher was protected under the Act because "[a]llowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others."

School Board of Nassau v. Arline 1987

- reverse discrimination suit - the Supreme Court upheld Michigan's voter-approved Proposal 2, which made unlawful any discrimination or preferential treatment based upon a class characteristic in public education, government contracting, and public employment. This had the specific effect of undoing Michigan's university admissions rubrics, which allowed for consideration of race and gender in evaluating college applications. The general effect of this was to put into question whether other university applications systems nationwide, which allow for preferences, are valid

Schuette v. Coalition to Defend Affirmative Action, __ U.S. __(2014)

the EEOC looks at: The frequency of the action The severity of the unwelcome conduct The physical or threatening nature of the harassment The impact on the victim's performance

Severity and Pervasiveness of Unwelcome Conduct

cancel a contract or debar a contractor from participating in bidding for future contracts. Additionally, the DOL may ask the attorney general to seek equitable relief to enforce orders, seek that the Department of Justice pursue criminal penalties where fraud is involved, publish the names of offending contractors, and/or recommend to the EEOC that judicial proceedings be commenced under Title VII.

Sometimes a contractor will run afoul of federal anti-discrimination statutes or Executive Order 11246. The Department of Labor may

Particularly simple and straightforward : not require extensive analysis

The ADAAA requires that the determination of whether an employee has a disability be ___________ and _____________.

Nominal From the text, "The EEOC reports that 30 percent of accommodations cost nothing, while almost 20 percent cost the employer under $50, and 50 percent involve expenses of $500 or less. Even for the smallest employer, these expenses are nominal."

The EEOC reports that the majority of accommodations made by employers are:

entitled to the same legal remedies as a legal worker, including back pay and reinstatement.

The EEOC takes the position that illegal immigrants are

50+ From the text, "The FMLA governs leave for employees due to parental and medical necessity, and applies to all government employers and private employers with fifty or more employees."

The Family Medical and Leave Act (FMLA) applies to all government and private employers with how many employees?

ERISA From the text, "The Health Insurance Portability and Accountability Act was passed in 1996 as an amendment to ERISA for the purpose of establishing standards in the health industry for the gathering, processing, retention, and disclosure of private health information."

The Health Insurance Portability and Accountability Act was passed in 1996 as an amendment to which act?

Citizenship for specific federal jobs and public policy functions English proficiency to the standard necessary to carry out essential business operations

The IRCA prohibits employers from discriminating in employment on the basis of nation of origin or citizenship, with some exceptions. Unlike Title VII, the IRCA does allow an employer to discriminate in favor of a citizen over a legal alien when both are equally qualified. There are two bona fide occupational qualifications which come into play under IRCA:

Four or more employees The IRCA rendered it unlawful for an employer employing four or more workers to knowingly hire or retain an undocumented worker.

The Immigration Reform and Control Act prohibits employment discrimination on the basis of citizenship in firms with:

regulation of AA. The OFCCP conducts extensive research on worker demographics and creates, implements, and enforces a myriad of regulations related to implementing the goals of AA.

The Office of Federal Contract Compliance Programs (OFCCP), within the Department of Labor, oversees the

11 From the text, "The Privacy Act has carved out 11 exceptions to this policy that provide for a common sense approach to revealing information which is necessary for the functioning of government, in response to a court order, or for national security."

The Privacy Act has carved out ___ exceptions to its policy which provide for a common sense approach to revealing information which is necessary for the functioning of government, in response to a court order, or for national security.

fifty or more employees and contracts valued at $50,000 or more must take "affirmative action to employ qualified individuals with disabilities."

The Rehabilitation Act of 1973 prohibits federal government contractors from discriminating on the basis of disability. This act requires that contractors, including subcontractors, with

100+ From the text, "WARN requires employers with over 100 employees to provide detailed written advance notification of plant closings and mass layoffs to affected employees, union bargaining units, and state and local government officials at least 60 days prior to the closing."

The WARN requires employers with ________ employees to provide detailed written advance notification of plant closings and mass layoffs to affected employees.

continual training requirement Under this requirement, employers are required to provide training to workers on a periodic basis and whenever an employee is hired or transferred to a new job assignment.

The ______________ is the most frequently violated OSHA regulation.

$100,000 The federal Drug Free Workplace Act of 1988 requires federal contractors doing more than $100,000 in business with the federal government to ensure a drug-free workplace through education and enforcement of drug-free policies.

The federal Drug Free Workplace Act of 1988 requires federal contractors doing more than _____________ in business with the federal government to ensure a drug-free workplace through education and enforcement of drug-free policies.

$100,000 in business with the federal government to ensure a drug-free workplace through education and enforcement of drug-free policies.

The federal Drug Free Workplace Act of 1988 requires federal contractors doing more than ________________

Collection : dissemination

The intrusion upon seclusion tort deals with the _____________ of information about an individual, rather than the _____________ of that information, and can involve a physical or electronic invasion.

Low-paying We know race discrimination continues based on data showing that some races earn less money than others. This data cannot simply be explained by cultural factors.

The problem of continued race discrimination is evident by reference to the labor market itself, with persons of color being much more likely to work in __________ jobs than whites.

The conduct must be unwelcome; and The conduct must be sufficiently severe or pervasive to alter the terms and conditions of employment in the mind of the victim and from the perspective of a reasonable person in the victim's position.

There are two requirements to trigger liability for race-based harassment:

requiring workers to work more than eight hours per day or more than forty hours per week. This is not so. The FLSA does require that overtime be paid, and that it is earned on a weekly, not daily, basis.

There is a misconception that the FLSA prevents employers from

The former employer The former employer has the burden to affirmatively prove the statement or information was truthful. The complaining former employee is not required to prove the statement was false.

To whom falls the burden to determine if an employer referral was truthful or not?

Appearing in public

Traditional views of disabled people have been changing. In 1973, the city of Chicago repealed a law created in the 1880's that forbade disabled people who were diseased, maimed, or unsightly from:

Integrated enterprise

Two corporations have combined their management and operations into a single place with 30 total employees. Which type of business relationship is formed that now requires both companies to comply with federal employment law?

90 From the text, "The employer provides this information to an employee within ninety days of the beginning of coverage in a document called a summary plan document (SPD)."

Under ERISA, how many days from the beginning of benefits coverage does an employer have to provide a summary document plan to the employee?

it makes the decision not to hire the disabled person based on the disability or a reluctance to accommodate the disability.

Under the ADA, if an employer is considering two qualified applicants for a job, one of whom is disabled, the employer will violate the ADA if

15 From the text, "Under the ADA, it became illegal for any firm with 25 (now 15) or more employees to discriminate in employment against a qualified person with a disability."

Under the Americans with Disabilities Act, it is illegal for a company with ____ or more employees to discriminate in employment against qualified persons with disabilities.

a valid passport, a border crossing identification card, a permanent resident card (green card), or a reentry permit.

Under the INA a documented alien possesses the proper identification for admission into the U.S. That documentation includes

4+ From the text, "The IRCA rendered it unlawful for an employer employing four or more workers to knowingly hire or retain an undocumented worker."

Under the IRCA, it is illegal to hire or retain undocumented workers if you employ how many workers?

- the Supreme Court has provided some leeway in using race and gender in employment decisions without invoking reverse discrimination. For example, in voluntary affirmative action plans, private employers may lawfully use race and gender in employment decisions where there has been a historical "manifest imbalance" in the workplace when that effort is limited in duration and scope and when it is not a quota system

United Steelworkers v. Weber, 443 U.S. 193 (1979); Johnson v. Santa Clara County Transportation Agency 480 U.S. 616 (1987)

In the race and color context, virtually all race-based conduct may be eventually considered unwelcome. This includes joking or playful banter, even where the victim is a participant, because such conduct can quickly turn a workplace in a hostile work environment. Moreover, while an occasional joke may be taken lightly, over time such banter can have a fatiguing effect upon the employee to whom it is directed. The best policy is to strictly prohibit workplace race or color joking.

Unwelcome Conduct

100 employees to provide detailed written advance notification of plant closings and mass layoffs to affected employees, union bargaining units, and state and local government officials at least 60 days prior to the closing. Employers are prohibited from plant closings or mass layoffs until the end of the 60-day notice period.

WARN requires employers with over

Provide the NLRB with contact information of workers eligible to vote in the election

What are the employer's responsibilities after the National Labor Relations Board (NLRB) has authorized a union election?

Seek external government funding From the text, "Congress intended that an employer seek external government funding, apply for tax incentives, and see if the disabled employee could bear some of the accommodation costs before claiming undue hardship."

What did Congress intend employers to do before claiming undue hardship?

the employer's efforts, the cost of accommodation in terms of wages and administration, the type of job involved, and the size of the employer.

When looking at whether an accommodation is a hardship, courts look to

Employing fewer than 10 employees so the ADEA does not apply

Which employer action is a possible employer defense to a claim asserted under the federal Age Discrimination in Employment Act (ADEA)?

Biannual scheduled drug tests From the text, "In 1991, Congress passed the Omnibus Transportation Employee Testing Act (Omnibus Act), which authorizes and regulates drug testing of employees in the airline, railroad, trucking, and public transportation sectors. The Omnibus Act requires pre-hire testing and post-hire random drug screens and sets procedures for ensuring drug test accuracy, chain of custody rules, and employee discipline procedures."

Which of the following is not a requirement of the Omnibus Transportation Employee Testing Act (Omnibus Act)?

An individual HR employee who fails to check a new worker's eligibility to work in the United States may face civil liability.

Which penalty is imposed by the Immigration Reform and Control Act?

Economic realities test

Which test is used to distinguish an independent contractor from an employee?

The union may call a strike. The employer may lock out the union workers. Either party may resume discussions with the other.

Which three outcomes are legally possible if parties cannot resolve one or more mandatory issues during collective bargaining negotiations and reach a deadlock?

Judicial authority Executive authority Rule-making authority

Which three types of statutory authority does the National Labor Relations Board (NLRB) have?

Most federal civil service positions require U.S. citizenship for public policy reasons. Indeed, the Supreme Court in Sugarman v. Dougall, 413 U.S. 634 (1973), established the "political function doctrine," which holds that Title VII is not violated when citizenship is a requirement for non-elected governmental positions when those positions require formulation, execution, or review of public policy issues. In other words, legal aliens may be excluded from consideration for such positions. Finally, the Immigration Reform and Control Act prohibits employment discrimination on the basis of citizenship in firms with four or more employees.

political function doctrine