HRM 6605 Final Exam!! (ch. 10-16)

Remedies under ADA:

1. compensatory and punitive damages are NOT available for disparate impact 2. punitive damages are available or intentional discrimination

Privacy must be protected by: (3)

1. constitution (federal or state) 2. federal and/or state statutes 3. common law principles

once a prima facie case is presented for age discrimination, the burden of proof shifts to employer to present:

LDNR for its actions

T or F: Employees are not expected to tell a company of their need for FMLA leave.

true (the company must investigate to see whether absences or other problems are being caused by FMLA qualifying event before disciplinary action is taken)

who is covered by FLSA

part-time and full-time employees; federal, state, local public employees; domestic workers (expect agriculture)

Provides insurance that covers potential losses of benefits if the plan is terminated without sufficient funds to pay all promised benefits.

pension benefit gurantee corporation (PBGC)

Participants notified in advance of any period in which they will be prohibited from trading in their plan accounts, or so-called 'blackout periods'. Participants in defined contribution plans that invest in publicly traded stock of their employer must be allowed to diversify their accounts into at least three other investment options and must be notified of such rights.

pension protection act (PPA) o 2006

ADA vs. Title VII: concept of essential functions.

title VII makes no distinctions regarding essentiality in analysis of qualifications

T or F: ADEA is more lenient than Title VII regarding latitude afforded empoyers' adverse employment decisions

true

True or false: There is no RFOA defense to age discrimination under Title VII, only under ADEA

true (BFOQ/business necessity defense under title VII; RFOA defense under ADEA)

True or false: No comprehensive federal workplace privacy legislation exists

true (no broad rights to personal workplace rights)

No burden shifting occurs in ADEA cases: plaintiff must prove age was the ________ factor.

"but-for" (Employee could recover only if the employment action would not have taken place but for age discrimination)

State age discrimination laws may provide greater protection for the following: (3)

1. apply to smaller employers 2. sometimes allow a wider range of damages 3. states often provide longer filing periods (keep in mind that NO STATE is permitted to extend the protection to someone younger than 40)

Employee's prima facie case for disparate treatment must establish: (Four elements to persuade the court about a claim for age discrimination)

1. Employee is a member of the protected class: age = 40+. 2. Adverse employment action: termination, demotion, etc. 3. Qualified for the job: meeting/able to meet position's legitimate requirements 4. Dissimilar Treatment vs. non-protected or younger employees based on age.

EEOC defines intellectual impairment as:

1. IQ below 70-75 (6.5 million americans) 2. significant limitations in adaptive skill areas 3. disability originated before the age of 18

To establish a prima facie case of discrimination under the ADAAA, plaintiffs must show that they:

1. are disabled as defined under ADAAA 2. are qualified, with or without reasonable accommodation by the employer, to perform the essential functions of the job 3. were discriminated against because of their disability

Employee defense for disability discrimination disparate treatment cases:

1. LNDR: employment action was taken for a reason other than disability discrimination, or 2. lack of notice or employee cooperation in iterative process, or 3. accommodation impossible or unduly burdensome

what factors determine reasonableness of accommodation in religious discrimination cases? (6)

1. Whether the employer made an attempt at accommodation. 2. Size of the employer's workforce. 3. Type of job in which the conflict is present. 4. Employer's checking with other employees to see if anyone was willing to assist in the accommodation. 5. Financial cost of accommodation. 6. Administrative burdens of accommodation.

An employee's prima facie case in a case of age discrimination - Disparate Impact

1. a facially neutral policy or rule is imposed by employer 2. which has a different effect on an older group of workers 3. no intent to discriminate is necessary

what are the privacy protections at common law (protections for private sector employees)

1. defamation- libel or slander 2. intrusion into seclusion 3. publication of private information 4. publication that places another in a false light

Upon receiving an age discrimination complaint, the EEOC could: (2)

1. dismiss if it believes that the charges have no merit 2. investigate the charges-- issues a right to sue letter

what are the remedies for age discrimination under ADEA?

1. equitable relief (not in the form of money damages-- reinstatement, promotions, injunctions) 2. Liquidated damages (predetermined amount of damages, equal to the unpaid wage liability-- available in 'willful' cases)

what are the protections for private-sector employees in terms of privacy rights:

1. federal and state statutory protections, such as anti-discrimination laws 2. employment contracts, where they exits 3. collective bargaining agreements, where applicable 4. state law exceptions to employment-at-will

two types of coverage under the FLSA

1. individual coverage- if individual's job involves interstate commerce directly, then they are covered 2. enterprise coverage- all employees of a business will be covered if the business is engaged in interstate commerce or producing goods for interstate commerce; meets a minimum gross annual revenue of $500,000

In the event of an RIF (reduction in workforce), age discrimination may be proven where an employer: (2)

1. refuses to allow the discharged (or demoted) employee to bump others with less seniority 2. hires younger workers when the jobs become available after the employee was discharged (or demoted) at the prior salary of the older worker

Mandatory retirement was deemed illegal by the 1986 amendments to the ADEA, with what exceptions: (2)

1. retirement at age 65 or beyond for high level executives who receive a company pension of $44,000 or more 2. police officers and firefighters

ADA prima facie case for disability discrimination: An employee may be able to claim discrimination on the basis of disability if the employee can prove:

1. she or he is disabled 2. is otherwise qualified for the position 3. whether an accommodation is required and if the accommodation is reasonable 4. suffered an adverse employment decision such as termination, demotion or failure to hire applicants

'undue hardship' in cases of disability discrimination includes accommodations that would be: (3)

1. unduly expensive in context, or 2. unduly expensive, substantial, or disruptive, or which 3. fundamentally alter the nature of operation of the business

Conflicts with some religious beliefs emerge regarding: (3)

1. union memberships (unions are also under a duty to reasonably accommodate religious conflicts) 2. payment of union dues 3. engagement in concerted activity such as picketing and striking

under FMLA, employers are required to offer as much as ___ weeks of unpaid leave in any 12 month period after childbirth, adoption, foster care, to care for a seriously ill child (any child whom employee is acting as a parent under 18 or incapable of self-care due to disability), spouse, or parent, or in case of an employees own serious illness

12

The ADA applies to employees with ___ or more employees

15

Both the FMLA and ADA require a covered employer to grant leave based on medical reasons. The major distinctions are that: ADA applies to private employers of ___ or more employees, while the FMLA covers private employers with ___ or more employees. FMLA provudes or up to ___ weeks of leave per year for covered conditions, while ADA's duration for leaves due to disabilities is ____

15; 50; 12; not identified

The deadline for filing a complaint with the EEOC for age discrimination is ____ days from when the discrimination occurred. can be extended to ____ days if the state has age discrimination laws and an administrative agency to oversee age discrimination complaints

180; 300

this act recognized the rights of labor unions

1989 erdman act

If the government is employer, what constitutional rights/legislation attach to discrimination claims on the basis of sexual orientation and gender identity?

1st, 5th, and 14th amendment (Equal protection), privacy rights

an employer may designate leave as FMLA leave after an employee has already returned to work when an employee was absent for an FMLA reason and the employer did not learn the reason for the absence until the employee's return to work. in this case, it must be recorded within ____ days of the employee's return to work

2

COBRA applies to group health plans and is provided by employers with ___ or more employees on a typical working day in the previous calendar year. provides ___ months coverage post-termination at "retail" rates

20;18

the FMLA requires ____ workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service members spouse, son, daughter, parent, or next of kin (military caregiver leave)

26

under FMLA, if an employee is sick more than ___ days and not in the hospital and not seeing (under a doctors care) a doctor, the employer can terminate

3

Under FMLA, employees are required to provide ___ days' notice or foreseeable leaves or birth, adoption, or planned medical treatment. Failure to do so without a reasonable excuse allows the employer to delay the leave until __ days after the noticeis

30;30

In the absence of age as a bona fide occupational qualification (BFOQ), the Age Discrimination in Employment Act of 1967 prohibits discrimination against an individual __________ years of age or older and applies to employer who have __________ or more employees. 35, 20 40, 20 40, 15 50, 20

40,20

the Age Discrimination in Employment Act applies to individuals who are at least ___ years old and covers businesses with ___ FTEs and all ______

40; 20+; governments

Under the FMLA, Employees are eligible if there are ____ employees within a ___ radius; have been working for the employer for at least ___ months before the leave request (do not need to be consecutive); have worked at least _____ hours during that time.

50; 75; 12; 1.250

Under FMLA, to change the method of tracking leave, must give workers ___ day notice

60

under FLSA, federal minimum wage is _____/hour enacted in 2009

7.25

president may order sides back to table when strike or lock-out would imperil national health or safety

80-day cooling off period

in 2008, this act: Mandates that A D A be broadly interpreted.• Enabled new claims based on less severe or temporary disabilities. - extended the definition of 'major life activity' to include bodily functions, immune system functions, reproductive functions, respiratory and circulatory functions, normal cell growth, and bladder and bowel functions.

ADA Amendments Act (ADAAA)

this act extends Rehabilitation Act protection to employees in the private sector. applies to employers with at least 15 employees; protections extend to provate sector, and state/local government employees

ADA of 1992

what are the distinctions between ADEA and Title VII:

ADEA more lenient than Title VII regarding latitude afforded employers' adverse employment decisions (ADEA allows employer to rebut a prima facie case of age discrimination via any "reasonable factor other than age")

which court case: "An employer violates Title VII when it intentionally fires an individual employee based in part on sex. . . . Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII."

Bostock v. Clayton County, GA

Applies to group health plansProvided by employers with 20 or more employees on a typical working day in the previous calendar year18 months coverage post-termination at "retail" ratesGives participants and beneficiaries the right to maintain coverage under their health plan that would be lost due to a change in circumstance• Covered at the participant's own expense.

COBRA

In this court case, janitor at church-sponsored gym fired for failure to pay dues. the Supreme Court affirmed an exemption from anti-discrimination provisions of the Civil Rights Act of 1964 for the nonprofit activities of religious organizations, not just their religious ones

Church of Jesus Christ of Latter Day Saints v. Amos

Negotiations and agreements between management and labor about wages, hours, and other terms and conditions of employment

Collective bargaining

If an employee files a lawsuit against their employer after exhausting their administrative remedies, the case is handled by the court as if there had not already been a finding by the EEOC. This is referred to as a: a. De facto b. De novo review c. De jure review d. Prima facie review

De Novo review

This act covers all forms of digital communication; includes transmissions of text and digitalized images, in addition to voice communications on the telephone; prohibits unauthorized eavesdropping, by all persons and businesses, not only by the government; "interception" applies only to messages in transit and not to messages that have actually reached company computers

Electronic Communications Privacy Act (ECPA)

Religious conflicts prima facie case, plaintiff must establish:

Employee holds a sincere religious practice that conflicts with an employment requirement.Employee has informed the employer of the conflict.Employee was discharged or disciplined for failing to comply with the conflicting employment requirement.

This act: Regulates private employee benefit plans, including retirement plan provisions and other benefits. Protects employees from wrongful denial of all types of benefits. No denial based on employee age, as long as she or he is at least 21 years of age and is a full-time employee with at least one year of service.

Employee retirement income security act (ERISA)

This act adds express language to Title VII in terms of sexual orientation/gay/lesbian rights-- it is annually introduced, NOT passed

Employment Non-discrimination Act (ENDA) (Equality Act introduced in 2015, not passed)

New Deal Law enacted in 1938 to regulate pay and hours worked, child labor • Minimum ages for workers in various jobs.• Minimum wages: Least amount a covered employee must be paid in hourly wages.• Overtime: defined regular 40-hour work week and pay rate for work in excess of standard

FLSA

this act was originally enacted in response to female employees' concerns about job retention after having a child

FMLA

In this court case, 'called' teacher terminated after taking leave to treat narcolepsy. This was the first time the U.S. Supreme Court used a "ministerial exception" as the basis for rejecting a suit alleging employment discrimination. The court unanimously ruled that federal discrimination laws do not apply to religious organizations' selection of religious leaders. US Supreme court upheld firing, but did not closely define to whom exception extends

Hosana-Tabor Evangelical Lutheran Church v. EEOC.

In this court case, When the same "actor" both hires and fires a worker protected by the ADEA, there is a permissible inference that the employee's age was not a motivating factor in the decision.

Lodis v. corbis holdings, including

in this court case, transgender was covered as sex in terms of discrimination. landmark change in the law. (the Equal Employment Opportunity Commission held that "intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on . . . sex,' and such discrimination therefore violates Title VII.")

Macy V Holder

This act: up to 12 weeks 'public health emergency leave' provisions for employers < 500 employees.

March 2020 Families First Coronavirus Response Act:

established the rights of employees to 'concerted action': form unions, bargain collectively, strike; established NLRB to administer, enforce the act

NLRA of 1935 (wagner act)

this act guaranteed rights to organize and bargain: "concerted action"; established NLRB as agency to oversee unionization elections and bargaining

National Labor Relations Act (wagner act)

may higher paid, older workers be offered lower wage terms to avoid lay-off?

No (some authority that failure to accept such an offer may lead to age discrimination if successor ultimately paid more)

How many employees must an entity have under the Civil Rights Act of 1866 to qualify as an employer under the Act? a. 50 b. 20 c. 15 d. No minimum requirement

No minimum requirement

Which of the following is true? a. No transexual are transgender b. Notransgender are transexual C. All transgenders are transexual d. All transsexuals are transgender

No transsexual are transgender (not sure ab this)

Same-sex marriage rights were upheld by US Supreme Court in _____ decision (2015)

Obergefell

This act concerns the legality and enforceability of early retirement incentive programs and waivers o rights under the ADEA. (wavier= intentional relinquishment of a known right) Prohibits age discrimination in the provision of employee benefits .Requires that every waiver must be 'knowing and voluntary' to be valid.

Older workers benefit protection act (OWBPA)

this court case brought to light the question of: Can an employee sexually harassed by someone of the same gender bring an action under Title VII? -- as in other title VII cases, nature o the conduct is conclusive, not status (gender, here) of the harasser

Oncale V Sundowner Offshore Services, Inc

the ________________'s purpose is studying the possibility of extending the Privacy Act to the private sector; they've made recommendations (not yet enacted by congress) to: - use of polygraph tests in employment-related issues be prohibited - pretext interviews be prohibited - use of arrest or criminal records in employment decisions be restricted - employers be required to use reasonable care in selection of their investigating agencies - Federal fair credit reporting act provisions be strengthened

Privacy protection study commission

Who the Family and Medical Leave Act apply to?

Public agencies; Employers that are engaged in commerce or in any industry or activity affecting commerce that 50 or more employees during 20 or more calendar work weeks in the current or preceding year

under ADEA-- Defense to a prima facie claim of age discrimination, offered by employers. • May include any requirement that does not have an adverse impact on older workers, as well as those factors that do adversely affect this protected class but are shown to be job-related.

RFOA (reasonable factors other than age)

What are the employer's defenses in a disparate impact case of age discrimination?

Reasonable factors other than age (RFOA)-- economic concerns; seniority

this act prohibits discrimination against otherwise qualified individuals with disabilities by federal employers and any program or activity receiving federal assistance

Section 504 of Vocational Rehabilitation Act of 1973

this landmark brought national focus to previously scattered advocacy for gay, lesbian rights-- there was a large scale coming-out, public identification as gay, lesbian; and gay pride month (june) celebrations commemorate the incident

Stonewall Riots o 1969

this act was a pro-management response to unions flourishing; Union Unfair Labor Practices; rigt-to-work states; 80 day cooling off period

Taft-Hartley Act 1948

amendment to NLRA enacted to curb labor excesses Union Unfair Labor Practices: - restrain employees in exercise of their rights or employers in the selection of their reps for collective bargaining -cause an employer to discriminate against an employee -refuse to bargain with an employer -enage in jurisdictional or secondary boycotts -charge excess or discriminatory initiation fees or dues -cuase an employee to pay for goods or services that are not provided ('featherbedding')

Taft-hartley act 1947

this legislation governs the interception of oral, wire, and electronic communications related to serious criminal offenses; basis for statutes in most states; digital assistants (alexa, siri) may be eavesdropping devices

Title III of the Federal Wiretap Act

This act-- Expanded states' rights with regard to Internet surveillance technology .• Grants access to sensitive data with only a court order rather than a judicial warrant. -- government is now allowed to monitor anyone on the internet simply by contending that the information is "relevant" to an ongoing criminal investigation

USA Patriot Act/USA freedom act (since 9/11)

In this court case, age was used as a BFOQ defense for pilots over 60. it was determined that individualized health assessments are possible (it was feasible to determine on the basis of individual medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue to fly.)

Western Airlines v. Criswell

_____ is one of the most consistently applied BFOQs

age

requires non union members to pay union dues without having to be subject to the union rules

agency shop clause

who is excluded from national labor relations act- unions

agricultural and domestic workers, independent contractors, and those employed by their spouse or parent

these two states have no age discrimination laws (employees in these states are limited to the remedies provided by the ADEA)

alabama and mississippi

a defense against safety claims in which the injured party voluntarily exposed herself to a known danger created by the other party's negligence

assumption of risk

the group of employees in a workplace that have the legal right to bargain with the employer

bargaining unit

In cases where organizations use staffing firms, who is responsible for reasonable accommodation of a disability?

both staffing firm and client

the representative of a union, usually a craft union

business agent

Privacy rights in the private sector o employment are _____; fewer protections against employer intrusions in at-will circumstances

limited

Under FMLA, when are employers allowed to deny restoration (of their same job or a comparable position upon returning from leave) to employees?

can deny "key" employees-defined as their highest paid 10% whose leave would cause substantial and grievous economic harm to the employer.

statutes and cases are just beginning to address employer monitoring issues, usually by analogy to other areas. in the case _______ it outlines balancing: employee's reasonable expectation of privacy and good business-related justification of employer interested

city of ontario v. quon

how would a claim of age discrimination filed by a 60 year old be dealt with by the courts if the person taking over the job was 45? (while both are covered by the law, that does not eliminate a claim)

claimant not barred because a favored employee is also >40, if claim is based on age. although a significant age gap (55 v 45) lends credibility (courts are split on the issue, however the decision in irvin v ascension parish school board highlights that a plaintiff can sustain an age discrimination claim even when both candidates are over 40 years old. the court found that the candidate selected was "substantially younger" than plaintiff (8 year different met the threshold)

this act exempted union activity as labor movement gained political clout

clayton act of 1914

in this type of union, employer hires only union members (considered bad-faith bargaining to propose it)

closed shop

what are the two key considerations for defining whether an employee's religion must be accommodated by an employer?

closely held by the employee; takes the place of religion in the employee's life

negotiated contracts between labor and management

collective bargaining agreement

Factors employees have in common for bargaining purposes

community of interests

Difference between public- and private-sector privacy protections is

compliance-related costs for private employers

Negligence defense based on the injured party's failure to exercise reasonable care for her or his own safety (OSHA)

contributory negligence

coverage of Employee retirement income security act (ERISA)

covers most private sector employee beneit plans; does not cover government entities, churches, non US residents, or nonemployees such as directors and independent contractors

unions organized by the employees' craft or trade

craft unions

The Undue Burden (employer's duty to 'reasonably accommodate' a person's religious practice) limit is _____-- meaning the employer doesn't have to do much to satisfy the duty, but must make a good faith attempt

de minimis

Under FLSA, who is exempt from overtime?

executive, administrative, professional, outside sales, and computer employees (must be compensated on a salary or fee basis at a rate of not less than $684/week) (also covered are highly compensated employees-- who are paid $107,432 or more annually and regularly perform at least one of the duties of an exempt executive, administrative, or professional employee)

true or false: in the private sector, the construction protects employees' right to be free from unreasonable searches and seizures

false

true or false: it is a breach of an employee's right to privacy for an employer to ask with whom the employee lives

false

difference between public and private collective bargaining?

federal legislation and most state statutes do not contain a right of public employees to strike

defense against workplace safety claims in which injury ocurred on the job and was caused by the negligence of another employee

fellow servant rule

this amendment protects against unreasonable searches and seizures; supreme court has liberally interpreted "search" to include a wide variety of activities-- retrieval of blood samples for example and other bodily invasions, including urinalyses and collection of other personal information

fourth amendment

bargaining unit employees who do not pay union dues but whom the union is still obligated to represent

free riders

Vocational Rehabilitation Act of 1973 apples to:

government and any firm that does business with the government

in this case, regarding marital contraception use, Supreme Court found Privacy to be an unstated but fundamental right existing in the 'penumbras' of the Bill of Rights - state has no legitimate interest intruding into marital boudoir.

griswold v. connecticut

union organized across an industry, regardless of members' job type

industrial union

_____________ industry in particular faces challenges to its ageist culture

information technology

Enacted in response to congressional investigations into union corruption from 19 57 to 19 59• Purposes• Establish democratic processes in union governance• Provide union members with a minimum bill of rights • Regulate activities of union officials and uses of union funds• Set forth specific procedures for holding union elections.• Provisions were enacted to safeguard union funds.

landrum-griffin act of 1959 (labor management reporting and discolusre act)

During the interview process, questions about which of the following should be considered off-limits because they create vulnerabilities for the employers? An applicant's marital status and religion only An applicant's religion and national origin only An applicant's national origin and marital status only An applicant's marital status, national origin, and religion

marital status, national origin, religion

this exception to title VII states that: religious organizations have full authority to determine who their religious leaders are, and to apply their religious dictates even when those dictates conflict with workplace antidiscrimination laws.

ministerial exception

__________ age discrimination claims do not exist under the ADEA in disparate treatment cases.

mixed-motives

the largest professional employee organization (union) is the _______

national education association (NEA)

this act endorsed collective bargaining process; restricted use of injunctions in workplace disputes; authorized union strike funds; voided 'yellow dog contacts'; broadened antitrust immunity and paved way for NLRA/Wagner Act 3 years later

norris-laguardia act (1932)

In a joint employer situation, _____ is responsible for FMLA

primary employer (BUT secondary employer may not interfere with employees' rights under FMLA)

this act Regulates the release of personal information about federal employees by federal agencies.

privacy act of 1974

once a prima facie case for religious discrimination has been established, the burden shifts to the employer to prove:

reasonable accommodation was attempted

Under common law, an employee can sue an employer for fraud in the recruitment process if the employee can prove all but which of the following elements? misrepresentation of a material fact. intention to deceive the applicant. reliance by the applicant on the misstatement. concealment of a material fact.

reliance by the applicant on the misstatement

What organizations are exempt from the prohibitions of Title VII in terms of religious discrimination?

religious organizations, school/college/university or other educational institutions (not an unlawful employment practice for a school, college, university, or other educational institution to hire or employ those of that particular religion; religion is recognized as a basis for a BFOQ)

permits employees to choose not to become a part of the union

right to work laws

This piece of legislations states that: "unlawful for any employer . . . to reduce the wage rate of any employee in order to comply with this Act."

section 4(a)(3) of the ADEA

this act requires affirmation action on the part of federal contractors and agencies to recruit, hire, and train disabled workers

section 503 of VRA

this act intended to overcome monopolistic business practices

sherman antitrust act

elected by the members of a union; intermediary generally between the union and the employer; organized by industry or craft/trade

shop steward

union member chosen as an intermediary between union members and employers

shop steward

Which employees who are subject to discipline have a right to request that a coworker be present as a witness during an investigatory interview? Union employees only Non-union employees only Both union and non-union employees There is no right to have co-worker be present

there is no right

union and management agree that employees must be members of the union

union shop

provision in collective bargaining agreement allowing a union shop

union shop clause

Amended several features of E R I S A and the P P A.• Employers are required to allow non-spouse rollovers and provide direct rollover notices as a condition of plan qualification.

worker, retiree, and employer recovery act

agreements employers require employees to sign stating they do not belong to a union and will not join one. they were outlawed in 1932

yellow dog contract