MAN4402 Employee Law

Which of the following statements is NOT true as to discrimination against caregivers?

*"caregiver" is a new protected class under EEOC guidelines*

A non-exempt employee's usual pay is $800/wk, based on a 40/hr week. This week he works 50/hrs. His regular pay is ___. His total pay for this week should be ___.

*$20/hr;$1100

Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that:

*An employer must maintain the health insurance for an employee reporting to military service for short stints of service (less than 31 days) and an employer must maintain the health insurance for an employee who serves in the military for up to 24 months, if the employee pays the full cost of group coverage*

The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that:

*Employers must attempt to reinstate persons returning from military service into the positions that they would have attained absent service, including any promotions

Which of the following is the agency responsible for administering and enforcing the National Labor Relations Act:

*National Labor Relations Board (NLRB)*

The maximum number of hours that an employee can work in a workweek under the Fair Labor Standards Act is:

*Not limited for employees 16 years of age and over*

Which of the following is a law requiring certain employers to engage in affirmative action?

*The Rehabilitation Act*

A school district had to decide which of two equally qualified, equally senior employees to lay off, invoking its affirmative action plan, the district retained the African-American and laid off the white teacher. The court would rule that:

*Title VII was violated because there was no evidence that African-Americans were underutilized as teachers and affirmative action cannot be used to make layoff decisions*

Which of the following would NOT be considered a concerted activity?

*a single employee that writes to a supervisor complaining about the refusal to grant her vacation time for the exact period of time she requested*

Which of the following is not considered to be a reasonable part of a valid affirmative action plan?

*a stated plan to hire a particular number of black, white, male, female...etc. employees in order to remedy an existing imbalance of injustice

For union employers, drug testing is:

*a subject of mandatory bargaining*

Which of the following is generally true regarding the process of enforcing employment laws?

*a. courts and government agencies hear cases only after employees come forward with complaints about violations of the law* b. employees are very likely to seize the opportunity to sue their employers, because all of the cost of employment litigation is borne by the employer c. once a claim is brought, a company's attorneys deal wit it, and managers have little involvement in the case d. all of these e. none of these

In Nino v The Jewelry Exchange, plaintiff bank employee sued alleging discrimination, and his employer sought to dismiss the suit, stating that the employee had signed a mandatory arbitration agreement, so that the suit should go to arbitration. The employee responded that the mandatory arbitration agreement he had signed was unconscionable, and therefore, unenforceable. Among other things, the employee alleged that the arbitration agreement was unconscionable because gave him only 5 days to make a demand for arbitration. The court ruled:

*a. for the Plaintiff, because the agreement was both procedurally and substantively unconscionable* b. for the Plaintiff employee, because the arbitration agreement was procedurally unconscionable c. for the Defendant employer, because none of the provisions of the arbitration agreement was unconscionable d. for the Defendant employer because the unconscionable parts of the arbitration agreement could be stricken, and the arbitration could proceed

Regarding arbitration, which of the following statements is true?

*a. historically, arbitration has been used to resolve disputes over contractual rights* b. arbitrators' decisions are usually advisory and not considered final c. arbitrators have less control over the outcomes of disputed than do mediators d. arbitration is always more costly and time-consuming than litigation e. none of these

The contract referred to in Question #16 above is:

*a. procedurally unconscionable* b. substantively unconscionable c. neither of these d. both of these

Dean got a job as a copyrighter for a publishing firm, and after working for the firm for two years, was told he was required to sign a mandatory arbitration agreement and agree to submit any employment disputes to binding arbitration. Dean was also told that if he would not sign it as is, he would be fired. Dean:

*a. will have to sign the agreement if he wants to keep his job* b. does not have to sign the agreement, and can still keep his job

Defined benefit pension plans

*all of the above*

Which of the following employee rights is NOT protected by the NLRA?

*all of these employee rights are protected by the NLRA*

Protected concerted activities:

*all of these*

Which of the following is a fiduciary duty under the Employee Retirement Income Security Act (ERISA)?

*all of these*

Which of the following is a qualifying event necessitating an offer of COBRA continuation coverage?

*all of these*

Which of the following is true regarding compensatory ('comp") time?

*all of these*

The American's with Disabilities Act (ADA):

*applies to private sector employers with 15 or more employees*

Under the FLSA, minor under 16 years of age:

*are allowed to work no more than 18 hours per week while school is in session*

Which of the following would NOT be considered a sex-plus policy issue?

*asking men and women about childcare arrangements during a pre-employment interview*

To qualify for leave under the Family and Medical Leave Act (FMLA), an employee must have worked:

*at least 1250 hours during the previous 12 months*

The Pregnancy Discrimination Act provides for each of the following EXCEPT:

*because of the extreme costs and because men do not avail themselves of pregnancy benefits, larger deductibles or co-pays may be charged

Which of the following is a "qualifying event" under the FMLA?

*birth of a child*

Non-employee organizers:

*can be barred from workplaces if a valid non-solicitation policy is in place and other reasonable means of communication exist*

Summary plan descriptions (SPDs)

*can be the basis for claims that employees did not receive promised benefits*

A valid background check should NOT include:

*checking an applicants marital status*

Under the ADA, it is important that job descriptions:

*clearly identify the essential functions of jobs*

To determine if a scored test is having discriminatory effects:

*compare the pass rates for different protected class groups and see if the pass rate for any group is less than four-fifths of the pass rate for the most successful group*

"Reverse" discrimination means:

*disparate treatment*

A former employee of your firm was dismissed when it was suspected that she had stolen from the petty cash account. It could not be proven, but suspicions were strong enough that the firm decided to let her go. She has now applied at another firm, and listed your firm as a reference. What should you do?

*don't tell them about your suspicions, just give a "service" reference

Which of the following statements is most correct about the legality of drug testing?

*drug testing will usually be upheld, but random testing procedures are the most susceptible to challenge

Which of the following is true regarding criminal background checks?

*employers should consider the seriousness, recentness, and job-relatedness of convictions before denying employment on that basis*

Content validation studies:

*examine whether behaviors and skills tested closely represent behaviors and skills used on the job*

Which of the following is one of HIPAA's requirements regarding pre-existing condition exclusions in group health plans:

*exclusionary periods must be reduced by any periods of prior coverage under a group health plan, as long as the break in coverage was no more than 63 days*

Drug testing may include may include samples of all of the following EXCEPT:

*fingernails*

A male customer of a sports bar has taken a liking to one of the waitresses, and always asks to be seated at her station, so that she will wait on him. He has spoken to the manager of the bar, and generously tipped him to insure that he will get her station. But the waitress does not want to wait on the customer, because he grabs and pinches her rear, tries to tuck money down her top, and frequently pulls her down onto his lap. She asks the bar manager not to let him sit at her station any more, but the manager tell her it's good money (he does tip her well), and she should be nice to him. If she files suit for harassment, what will the court most likely rule?

*for the employee, because the customer has committed harassment, the employer knew about it, and did nothing*

As the Human Resources manager of your firm, the task of putting into effect the firm's new mandatory arbitration agreement has fallen to you. At a minimum, legally, which of the following actions are required to make the policy enforceable?

*g. only "provide employees with a copy of the agreement and ask them to sign it" and "make certain that the agreement provides, and the employees understand, that they are waiving their rights to sue" are legally required

Which of the following is considered a medical exam under the ADA?

*genetic test*

Which of the following is true of harassment?

*harassment is legally actionable because it is a form of discrimination*

Under the FMLA, employees are entitled to:

*have only health benefits maintained under the same conditions as if the employee had not taken leave*

Under the Fair Labor Standards Act, a "workweek":

*is any fixed and reoccurring period of 7 consecutive days*

The bona fide occupational qualifications (BFOQ) defense:

*is the only means by which employers can avoid liability for facially discriminatory policies or practices*

Negligent hiring:

*makes employers liable for harm that occurs when employees who were not properly screened act outside the scope of their employment*

Which of the following is generally compensable time under the FLSA?

*meeting during work hours concerning employee grievances*

Regarding employment benefits, the general rule is that:

*none of these*

Under the Fair Credit Reporting Act, employers must do which of the following?

*notify an applicant that the employer plans to reject her based on information from a credit report*

Employers must show that a scored test is job related and consistent with business necessity?

*only if the test is having discriminatory effects*

The EEOC's guidelines hold that broad English-only rules applied at all times are:

*presumptively discriminatory*

A principal objective of the Occupational Safety and Health Act is:

*preventing injuries and illnesses on the job*

Which of the following would usually be considered a reasonable accommodation of disability?g

*providing a part-time or modified work schedule*

When a female supervisor demands sexual favors from a male employee so that he can keep his job or get a raise, it is called this:

*quid pro quo harassment*

Promissory estoppel claims:

*require reasonable reliance on a clear promise*

The duty to bargain in good faith:

*requires that employers supply unions with information relevant and necessary to bargaining effectively*

Which of the following is most likely a proper application of a BFOQ?

*requiring airline pilots to retire at 60 years old*

Which of the following is an unfair labor practice (ULP) under the National Labor Relations Act:

*retaliating against an employee who has filed charges with the NLRB*

You've now been on the job for a few months in your role as Assistant Human Resources Director, and have acquired some experience in interviewing and background checks. While doing a background check on a candidate for a secretarial position, you discover that the candidate was arrested several years ago while in college, and accused of damaging university property. What should you do?

*talk to the candidate to find out what the report is all about*

Which of the following is an element of a prima facie case of failure to reasonably accommodate religion?

*that a conflict between a sincere religious belief or practice and an employment requirement*

If an employee is subject to severe harassment, and quits his position to escape it, the court will likely rule:

*that the quit is a constructive discharge, which constitutes a tangible employment action if it results from a demotion or pay cut*

In order to prove that underutilization exists, it must be shown:

*that women or persons of color are underrepresented in the employer's workforce relative to their availability in the relevant labor market*

Which of the following is a necessary element of a sexual harassment claim?

*the harassment was unwelcome*

Which of the following is not a fundamental right conferred on employees by the National Labor Relations Act ("Section 7 rights")?

*the right to fair pay and benefits*

"Tipped employees" can be paid less than the minimum wage provided that:

*their total pay in wages and tips equals at least the minimum wage

Which of the following is true regarding vesting requirements under ERISA?

*vesting is generally required after five or seven years of service*

The accent of an employee or job applicant can lawfully be taken into consideration when:

*when communications are a significant part of the job in question and the person's accent substantially or materially interferes with the ability to communicate*

In order to avoid liability for negligent hiring, the primary question an employer must consider is:

*whether placing an unfit person in the particular job could be expected to result in harm*

Which of the following is a criterion used by the NLRB to determine that an appropriate bargaining unit exists?

*whether professional employees would be mixed with no-professional employees against their will*

When individual job titles are listed for each department in order of pay level and demographic information is provided for each job, this is called a/an:

*workforce analysis*

Which of the following statements is NOT true?

a. Employers must always perform a criminal background check before hiring an employee b. employers must always conduct a thorough and comprehensive background check of every applicant c. employers must obtain an applicant's consumer credit report d. all of these are true *e. none of these is true*

Regarding the historical development of employment law in the U.S., which of the following statements is true?

a. Most federal employment laws were passed in the first half of the 19th century in response to growing industrialization b. The earliest laws focused on wages and hours c. Most employment laws were passed with little conflict, since the need for these laws was evident to employers, employees and legislators d. The importance of employment at will has increased over time *e. None of these*

Your firm has just gotten a contract with the U.S. government to build security gates for the fence along the U.S.-Mexican border. In addition to the employment laws which already apply to your business, the following will now also apply:

a. Title IX b. the Federal Security Fence Funding Act of 2008 *c. EO # 11246* d. all of these e. none of these

Employers are vicariously liable for harassment when:

a. a hostile environment is created by a top officer b. harassment by a supervisor results in a tangible employment action c. a supervisor creates a hostile environment and the employer does not have a sexual harassment policy or reporting procedure *d. all of the above*

Which of the following provisions, if included in a mandatory arbitration agreement , would be likely to render it unenforceable?

a. a provision that the employee pay the costs of the arbitrator's services b. a provision that gives the employer the right to choose any arbitrator c. a provision that bars all discovery d. a provision that requires the employee to prove his case e. all of these *f. all of these except "a provision that requires the employee to prove his case"*

Which of the following should be included in an employer's policy prohibiting harassment?

a. assurance that employees reporting harassment will be protected from retaliation b. assurance of strict confidentiality in handling harassment complaints c. a clear and accessible procedure for reporting harassment *d. a and c*

Which of the following is true regarding the role of conduct outside of the workplace in harassment cases?

a. employers cannot be held liable based on harassing conduct that occurs outside of the workplace b. the sexual activities of persons who allege harassment will be examined in order to determine whether the treatment received was unwelcome c. the marital statuses of the plaintiff and the alleged harasser will be taken into account in determining whether harassment occurred *d. none of these*

Under the "payroll method" approved by the U.S. Supreme Court:

a. employers whose payrolls exceed $500,000 annually are covered by Title VII b. employers are covered by Title Vii if they had at least 20 employees on the payroll at the time of the alleged discrimination c. employers are covered by Title VII if they had at least 15 employees working and being paid for each working day during at least 20 weeks in the same or the preceding year *d. employees are counted for each full week between when they are hired and when they leave employment, regardless of the number of days or hours worked*

A mandatory arbitration agreement which provides that all claims be brought within 90 days of the date of the alleged violation would likely be:

a. enforceable *b. unenforceable* c. subject to amendment by the court

Which of the following is true regarding enforcement of employee rights and enforcement of employment laws?

a. finding a lawyer willing to take an employment law case is difficult because lawyers accept only about 50% of employment discrimination cases brought to them b. if an employer has a complaint or grievance procedure, the employee is required to exhaust the remedies afforded under the internal procedure before taking the case to an enforcement agency or court *c. the EEOC encourages the parties to discrimination cases to use mediation* d. the EEOC encourages the parties to discrimination cases to use arbitration

In Casias v. Wal-Mart Stores, plaintiff Casias, a cancer patient and Wal-Mart employee, was prescribed medical marijuana for his symptoms by his physician, pursuant to the state's new medical marijuana law. Upon being injured at work, he was given a blood test which showed marijuana in his system. He was fired, and sued for wrongful termination. The court ruled:

a. for the Plaintiff because he had a valid state medical marijuana registry card to show that he was authorized to use medical marijuana b. for the Plaintiff because he did not cause his own injury at work *c. for Wal-Mart, because the state law did not change employment-at-will* d. for Wal-Mart, because plaintiff's marijuana use led to his injury

In EEOC v AutoZone, the EEOC sued AutoZone on behalf of an employee who suffered injury and disability because his employer would not provide a reasonable accommodation for his disability. Fed Ex argued that the damages awarded by the jury were too high, and also offered evidence of its ADA compliance policy set forth in the employee manual. The court ruled:

a. for the defendant AutoZone, since the establishment of an ADA compliance policy was sufficient to establish a good faith effort to comply with the ADA b. for the defendant AutoZone, because plaintiff had not established that he suffered from a disability *c. for the plaintiff because the damages awarded were consistent wit the damages awarded in other cases* d. for the plaintiff because he established that he suffered from a disability

Affirmative action:

a. is primarily applied to hiring decisions b. is limited to African-Americans and women c. both of these *d. none of these*

Sarah aged 59, has been employed by your firm for more than 26 years, and has continually received above-average evaluations. Just before her 27th anniversary with the firm, you are ordered by your superior, the HR manager, to tell her that her employment with the firm is terminated immediately. Given the facts, as presented, the issues most likely to be raised are:

a. legal *b. ethical* c. medical d. contract e. none of these

"Serious health conditions" include:

a. medical conditions that involve inpatient care in a hospital or similar medical facility b. continuing treatment by a health care provider c. any period of incapacity or time needed for treatment of the condition d. any period of incapacity relating to pregnancy or prenatal care *e. all of the above*

Under U.S. employment laws, employees have the right to:

a. not be fired, as long as they do a good job and the employer's financial condition does not require that employment levels be cut b. be treated fairly in all aspects of the workplace, including receiving fair compensation c. have health insurance and other basic benefits, provided that they are full-time employees d. all of these *e. none of these*

Under the FMLA, employers have the right to:

a. require 30 days advance notice when the need for leave is foreseeable b. require that leave based on serious health conditions be supported by certifications from health care providers c. require medical certification of fitness upon a employers return to work d. delay the start of leave for employees who fail to provide 30 days notice when the need for the leave is foreseeable *e. all of the above*

An employee can be considered disabled under the ADA if:

a. she has an existing disability b. she is erroneously regarded as being disabled c. she is not currently disabled but has a record of a prior disability *d. all of the above*

Regarding the interrelationship of federal and state employment laws:

a. state laws must be identical to federal law or state law is void b. states may pass laws which reduce employee rights, but may not enact laws that expand employee protections granted in federal laws *c. states may pass laws which expand employee rights, but may not enact laws that reduce employee protections granted in federal laws* d. employment law is exclusively a federal domain, so states may not enact laws when federal law already exists

An employer considering whether to use mandatory arbitration agreements should recognize which of the following limitations of their use?

a. the agreements probably won't apply to any of its unionized employees b. the agreements will not deter the EEOC from investigating and possibly litigating to recover remedies for individuals c. the agreements may not be enforceable if they do not provide employees with the same remedies as those available through the courts *d. all of these* e. none of these

Which of the following is a defense to a defamation claim against an employer?

a. the employee gave his consent to make the statement b. the statement was within the employer's qualified privilege c. the statement was truthful *d. all of these* e. none of these

"Knowledge" as an element of the tort of negligent hiring, means that:

a. the employer knew the employee was unfit b. the employer should have known the employee was unfit c. the employer would have known the employee was unfit if it had done an appropriate background check *d. any of these might constitute such "knowledge"* e. none of these constitutes such "knowledge"

Regarding drug tests:

a. the employer must perform a second confirmatory test if requested by the employee b. the employer must allow the employee access to samples so that the employee can have her own test done *c. both of these*

The plaintiff in a harassment case must prove:

a. the harassment was because of sex b. the harassment was directed toward a protected class c. the harassment was unwelcome *d. only b and c

In order to determine which employment laws apply to a certain employer, the employer should consider which of the following factors?

a. the number of employees that work for the company b. whether the employer sells goods or services to the federal government c. the state(s) in which the employer operates *d. all of these* e. none of these

Which of the following is true of the enforcement process for discrimination charges brought under Title VII?

a. the plaintiff may choose to begin in the state civil rights agency, or may file directly with the EEOC as they wish b. charges must be brought within 60 days of the alleged discriminatory act *c. a right to sue letter must be obtained from the EEOC before a plaintiff can file suit in court* d. all of these e. none of these

In order to conclude that a proposed accommodation of disability would impose undue hardship on an employer, it must be shown that:

a. the proposed accommodation would not be a reasonable one b. the cost of the accommodation exceeds the benefits it would produce c. the cost exceeds the general $2000 threshold specified in the ADA *d. none of the above*

A BFOQ may be recognized when:

a. there is a need for privacy b. there are public health concerns c. to make a performance authentic *d. All of these reasons*