Hrm 446 Western exam 1

Liquidated damages

(web definition) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach.

Compensatory Damages

(web definition) are money awarded to a plaintiff to compensate for damages, injury, or another incurred loss. Compensatory damages are awarded in civil court cases where loss has occurred as a result of the negligence or unlawful conduct of another party.

Business Necessity

(web definition) is a legitimate business purpose that justifies an employment decision as effective and needed to optimally achieve the organization's goals and ensure that operations run safely and efficiently.

Negligent Referral

(web definition) is a relatively new civil wrong. In a nutshell, it is the failure of a former employer to disclose information about a former employee that leads to the injury of an innocent third party.

adverse action

(web definition) is an official personnel action, usually taken for disciplinary reasons, which adversely affects an employee and may include such punishments as a suspension for a defined period, reduction in grade or status, or removal.

Substantively Unconscionable

(web definition) refers to the unconscionability of the actual terms and provisions in a contract.

Procedurally Unconscionable

(web definition) which refers to the actual procedures taken when entering into the contract.

· What might be included as reference checks?

?????? Defamation in an employment law context relates to references, statements or information provided by a former employer to a prospective new employer False statements that reflect badly on a person are communicated to others, which results in damage to that person's reputation To be defamatory, statements must be false

Equitable tolling

A doctrine stating that if employees are unaware of their rights because they were actively misled by their employer or the employer failed to meet its legal obligation to post information in the workplace, a court might excuse an untimely filing.

Punitive Damages

A remedy available in employment cases intended to punish the employer in cases of serious, intentional violations and to create an example to affect the behavior of others.

unconscionable

A term used in contract law when the process of contract formation essentially involves a "take-it-or-leave-it" offer of an agreement drafted by a more powerful party (a "contract of adhesion") and when the contents of the agreement unreasonably favor the more powerful party.

hybrid test

A test used by the federal appeals court combines economic realities and common law tests criteria with a few additional factors to determine the employment status of a worker.

· What should be included in a valid independent contractor agreement?

A valid agreement requires most of these: -The independent contractor (IC) must provide tools, etc., and pays its own business expenses -The IC must hire its own assistants -The IC should be paid a flat fee for the work -Review long-term ICs; don't assign new projects without renewing the agreement -Don't have ICs doing same work as employees -Don't provide benefits, even time off -ICs may offer services to others

· Know the procedures for enforcing employment laws.

A wide variety of enforcement procedures exist for bringing and resolving claims related to violations of employment laws. The applicable procedure depends on the particular law that forms the basis for the claim. What Does an Employee Decide to Do When She Believes that Her Rights Were Violated? Most employees who have their rights violated by their employers do something other than take legal action; they quit, join a union, withhold commitment and discretionary effort, just let it go, or talk it over with the employer and work things out. Ultimately, although no employer can be expected to like it, our system of employment law depends on employees being willing to come forward and assume the burden of taking legal action to both remedy the harm that was done to them as individuals and to uphold public policy. How Long Does the Employee Have to Bring a Case? Time limits for filing lawsuits or charges with administrative agencies vary. Unfair labor practice charges must be brought to the National Labor Relations Board within six months of their occurrence. In discrimination cases, employees generally have 300 days to file a charge with the Equal Employment Opportunity Commission (EEOC) (180 days in states that do not have their own state civil rights agencies), but only 90 days to file suit if the EEOC's efforts to resolve the case conclude unsuccessfully. Wage and hour cases brought under the Fair Labor Standards Act can go back as far as three years. A major practical consequence is that employers must be prepared to defend actions taken well in the past by individuals who might no longer work for their companies. The only way to do this is to maintain solid documentation regarding all human resource decisions. Employees who fail to bring charges in a timely fashion generally lose their right to pursue legal action. The clock usually starts ticking on the limitations period when the employee receives unequivocal written or oral notice of a decision (e.g., termination), rather than on the effective date of that decision (if these differ). However, if an employee is unaware of her rights because she was actively misled by her employer or the employer failed to meet its legal obligation to post information in the workplace, a court might excuse an untimely filing. Can a Lawsuit be Brought? By Whom? Employment law cases are brought in both state and federal courts. Where the case will end up depends on such factors as the legal basis for the claim, where the parties to the case reside or are incorporated, and the strategic choices of the parties. A case that goes into the federal court system starts at the district court (trial court) level. The role of the district court is to establish the facts of the case and to reach a decision about the employee's claim(s). However, many cases filed against employers are dismissed without a trial (this is usually called granting summary judgment) because the court determines that even if the allegations of the plaintiff (the employee who is suing) are accepted as true, they are not sufficient to support a legal claim. If a case does go to trial, the plaintiff bears the burden of proof to show, generally by a "preponderance" (the majority) of the evidence, that his rights were violated. o Cases that go to trial are sometimes decided by juries (a jury trial) and other times by judges (a bench trial). District court decisions can be appealed by either party to a federal appeals court (circuit court). Appeals court decisions can be appealed to the U.S. Supreme Court. However, because the Supreme Court exercises its discretion as to which cases it hears (when the court decides to hear a case, it issues a writ of certiorari), and it hears relatively few cases each year, rarely does a case go that far. However, while courts sometimes change their minds about the law, they have a strong preference for adhering to prior decisions ("precedents")—or at least giving the appearance of doing so. This desire for consistency and stability in the law is captured by the Latin phrase stare decisis ("let the decision stand"). Class-Action Lawsuits plaintiffs sue on behalf of themselves and some larger group of persons. They claim that their rights and those of other class members were violated in essentially the same manner by the defendant. Is There an Administrative Prerequisite to a Lawsuit? o Some employment laws require that a charge be filed with an administrative agency (e.g., the EEOC or the Wage and Hour Division of the Department of Labor) and that the agency be given the chance to resolve the matter before an employee can go to court. In discrimination cases, an employee usually starts by filing a charge with either the EEOC or a state fair employment practice agency. If the EEOC dismisses the case or fails to achieve conciliation (a settlement agreement) between the parties, it issues a right to sue letter to the employee alleging discrimination. Must the Employee Exhaust Internal Dispute Resolution Mechanisms Before Proceeding? If an employer has a complaint or grievance procedure, the employee does not usually have to use the internal procedure before taking the case to an enforcement agency or court. An even more fundamental change has been the rise of alternative dispute resolution procedures intended to take the place of lawsuits

third-party retaliation

According to the Supreme court, an employee has the legal standing to sue an employer in case of any discrimination

· What advice is given for conducting background checks?

Advice for conducting background checks: -No particular measure is required in all cases, but employers should always follow their own procedures. -Be especially wary of rush, last-minute hiring decisions. -Inconsistencies and gaps in information provided by applicants must be discovered and confronted. · -Go with hunches about something not being right about applicant -Background checks should be more extensive if there is a greater chance that unfit employees could do harm to others. -Employers should document all attempts to gather information, even if those efforts are not successful. -If you must hire without a background check, hire, do the check, and fire the employee if unfit.

Understand employment at will

An employee can quit at any time for any reason or no reason at all An employer can fire an employee at any time for any reason or no reason at all, except reasons prohibited by law

Qualified Privilege

An immunity from liability that is conditional rather than absolute.

Negligent Misrepresentation

An intent to falsify or reckless disregard for the truth.

Social Movements

An organized effort to create needed changes in workplaces and society.

consent

Any request for a reference accompanied by a written "release of information" form that is signed by the former employee and that grants permission to communicate information about the employee.

· What concerns should employees have regarding statements they make during recruitment

Applicants should not provide false information or omit important facts in hopes of getting hired Courts regard refusal to hire due to falsification or omission as a legitimate, non-discriminatory reason for not hiring Particularly true when employer consistently enforces this policy, notifies applicants of it (usually on the application form), and the falsification or omission is material Employers who discover falsification or omission by an employee after hire have grounds to fire Cases involving after-acquired evidence may limit the legal remedies available to employees because of their prior misbehavior

glass ceiling

Artificial barriers based on attitudinal or organizational bias that prevent qualified individuals from advancing in their organization into upper management positions.

background checks

Checks used to verify information provided by candidates and to determine whether any disqualifying factors exist.

· Why is it important to determine whether an employment relationship exists?

Compliance with tax laws Employer is required to withhold income taxes and to pay the employer's share of Social Security and Medicare taxes Additional payments must be made to provide workers' compensation and unemployment insurance for employees Compliance with most employment laws in this text apply only to employees, and not to independent contractors or other workers Employment status may also be required for contract benefits

What are the 5 sources of employment law?

Constitutions - address the relationship between different levels of government (e.g., States and federal government) and between governments and their citizens. Statutes - in our system of government, voters elect representatives to legislative bodies such as the U.S. Congress. These bodies enact laws, or statutes, many of which affect the workplace. Executive Orders - function much like statutes, although they reach fewer workplaces and can be overridden by the legislative branch. Regulations, Guidelines and Administrative decisions - Regulations are entitled to considerable deference from the courts (generally, they will be upheld when challenged), provided that the regulations are viewed as reasonable interpretations of the statutes on which they are based. Agencies also contribute to the law through their decisions in individual cases that re brought before them and the guidance that they provide in complying with laws. Common Law - is defined by state courts, but broad similarities exist across states.

· What constitutes a volunteer in determining who an employee is?

Courts have not identified a test or set of factors to distinguish employees from volunteers, but consider: -Whether benefits received by volunteers constitute "significant remuneration" or "inconsequential incidents of an otherwise gratuitous relationship" -Some courts also consider other factors

public policy

Courts look to public policy as an indication that a particular type of employment is sensitive and calls for greater care in hiring.

· Know the 2 defenses to defamation.

Defamation in an employment law context relates to references, statements or information provided by a former employer to a prospective new employer False statements that reflect badly on a person are communicated to others, which results in damage to that person's reputation To be defamatory, statements must be false Defense for Defamation -Consent -Qualified Privilege -Truth · If the statement is true, it is not defamatory, even if it hurts the person's reputation Consent -Employers might require that former employees sign a written release of information form, granting permission to communicate information about him -But is it effective if the employee does not know what the employer will say? -An alternative is to negotiate with the employee a letter of reference Defenses to Defamation: -Qualified privilege (conditional immunity) This protection can be lost if: -The statement was made with malice (intent to harm the person's reputation), -Or with reckless disregard for the truth, or overly broad publication of the statements Smart Practice: Speak only to those with a need to know.

· Know the direct method of analyzing disparate treatment.

Direct evidence (the "smoking gun") may also be used to prove disparate treatment Circumstantial evidence hints at the possibility of discrimination, but is not sufficient by itself to prove it Comparative evidence shows the employer to have treated the plaintiff worse than another employee under the same circumstances Subordinate Bias (cat's Paw) theory may apply when there is evidence of a discriminatory motive by a supervisor or other manager, but not on the part of the official who makes the decision -The discriminatory motive of a lower level employee can result in liability even though the decision-maker is someone else Practical advice: Carefully select & train supervisors & closely review disciplinary actions

· Understand the 4 types of discrimination.

Disparate treatment -Requires discriminatory intent Adverse (Disparate) impact -Facially neutral policy has discriminatory effects Failure to reasonably accommodate -Applies to religion, disability only Retaliation -To punish based on employee's exercise of his legal rights

· What are EEOC remedies for employment law violations?

EEOC remedies for violations may include: -Attorneys' fees -Court orders -Back pay -Front pay -Reinstatement -Hiring -Liquidated damages -Compensatory damages -Punitive damages But not all remedies are available for every case. Arbitration clauses in collective bargaining agreements (CBAs) do not bar those employees from going to court. Arbitration agreements do not prevent employees from bringing complaints to government agencies like the EEOC, which may bring suit. EEOC has increasingly sought agreements from defendant employers to have their employment practices overseen by external monitors, and to institute wide-ranging diversity programs

· Know the elements of a retaliation claim

Elements of a Claim Retaliation I. Plaintiff must establish a prima facie case of retaliation by showing that -a) The plaintiff engaged in protected activity (i.e., participated in enforcement procedures or otherwise used reasonable means to oppose discrimination). -b) The plaintiff was subjected to a materially adverse action. -c) There is a causal link between engaging in the protected activity and the materially adverse action taken by the employer. II. If the plaintiff successfully establishes a prima facie case, the employer has the opportunity to produce evidence of a nonretaliatory motive for the adverse action. III. If the employer articulates a nonretaliatory motive, the plaintiff has the opportunity to rebut the employer's claims by -a) Providing evidence that sheds doubt on the credibility of the employer's claimed motive and/or -b) Providing other evidence that supports the claim that retaliation is the most likely explanation for the adverse action.

· Know the elements of a claim for defamation.

Elements of a claim defamation To prevail in a defamation claim, the plaintiff must show that: -A statement was made that purported to be factual in nature -The statement was false or substantially false -The statement challenged the integrity, character, or ability of the plaintiff -The statement was "published" (communicated) either orally (slander) or in writing (libel) -There was harm to the reputation of the plaintiff Statements that are defamatory still will be subject an employer to liability if those statements were privileged. qualified privilege can be lost if any of the following are true. -There was malicious intent to harm the person's reputation -The statement was made with reckless disregard for the truth -Publication of the statement was overly broad

· Know the 5 elements of fraud.

Elements of a claim fraud: - A false representation of a material fact was made to another person - The party making the statement knew that it was false at the time that it was made (or had reckless disregard for the truth.) - The other person was, in fact, induced to act or refrain from acting - The other person was harmed by reliance on the false representation

· Know how long to keep applications, related records, etc.

Employers must retain: Applications & related records for at least 1 year after a hiring decision is made Records regarding people who were hired until a year after they leave employment Data regarding the protected class characteristics of applicants for purposes of affirmative action and adverse impact

· What are mechanisms to avoid discriminatory hiring?

Employers must use several recruitment mechanisms to avoid discriminatory hiring. -Want ads and job announcements -Wording must be neutral Employment agencies -May not discriminate on behalf of employer clients Nepotism, word of mouth hiring -Unless workforce is already diverse, tends to recruit similar employees

· Know the 4 categories of preemployment inquiries.

Employers should not directly inquire about protected class characteristics -Examples: asking age, whether U.S. citizen Employers should not indirectly inquire about protected class characteristics -Examples: asking date of graduation, memberships, workers' compensation claims filed -Employers who want to track protected class characteristics for affirmative action purposes may do so by a voluntary reporting process Employers should avoid questions about requirements or criteria that are not uniformly applied to job candidates -Examples: asking marital status, child-rearing plans Employers should avoid questions about requirements that have a high probability of producing adverse impact -Examples: questions about prior arrests, type of military discharge, height, weight

Joint employers

Employers who share in the liability for violation of an employee's rights.

· What is discrimination?

Employment discrimination defined: -A limitation or denial of employment opportunity based on protected class characteristics of a person -In essence, "adverse employment actions" -Liability arises not from prejudice alone, but from its effects on employment opportunities -Unfair treatment must be based on or related to the protected class characteristics of people

· What is the Lilly Ledbetter Fair Pay Act?

Established that each discriminatorily low paycheck is a separate violation that starts the limitations period anew. An unlawful employment practice occurs "when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages [are] . . . paid."

· Understand the 3 questions in regards to the employer status in determining who will be held liable if an employee's rights are violated.

Even when it is agreed that an individual performing work is, in fact, an employee, questions sometimes arise concerning the identity of the employer. This is important because employer status generally determines who will be held liable (legally responsible for and required to provide any award or damages) if an employee's rights are violated. We will consider three aspects of this issue. -First, to what extent is an employer liable for the actions of its employees? -Second, what parts of far-flung corporate structures are sufficiently interrelated to constitute single employers? -Third, under what circumstances are firms deemed joint employers of the same employees?

after-acquired evidence

Evidence showing that there is another consequence to employee falsifications and omissions during the hiring process.

· What are examples of neutral requirements?

Examples of neutral requirements or practices that have sometimes been shown to have adverse impact include the following: -A variety of written employment tests -Height and weight requirements -Language requirements -Physical strength tests -Military service, type of discharge -Limitation of employment based on arrests and convictions -Educational attainment requirements

negligent hiring

Extends the liability of employers for harm caused by their employees beyond actions undertaken within the scope of employment (the subject of respondeat superior claims) to harmful actions that lie outside the scope of employment, but for which the careless hiring of an unfit employee set the stage.

· Understand the 6 types of disparate treatment cases.

Facially Discriminatory Policy or Practice (intentional) -Defense: bona fide occupational qualification (BFOQ) Reverse Discrimination -A misnomer; results when white male believes hiring of woman or person or color constituted discrimination to him Pretext -Employer's stated reason for decision for decision is not the real one, employee believes Mixed Motives -Both legal and illegal motives; Employer can limit damages if it can prove decision would have been made anyway -Mixed motives analysis not available for disability, retaliation or age discrimination -In those cases, employee must prove that discrimination was the "but-for" cause Pattern or Practice -Systematic, affecting many employees; statistics Harassment

· Know the section on criminal records.

Failing to check for a criminal history may be clear evidence of negligent hiring -But legal issues affect access to and use of information Consider: US imprisons far more citizens than other countries -U.S. has 5% of population of world, but 25% of world's prisoners -About 25% of all U.S. adults have some type of criminal history Distinguish between "arrests" and "convictions." -Employers may inquire about convictions, but not arrests. Distinguish between "misdemeanors" and "felonies." -Felonies are serious crimes. Criminal records are decentralized, and may be inaccurate. Employers should use an investigative service and make sure the search is sufficiently broad. If the information indicates unfitness where there is foreseeability of harm, the applicant should not be hired. But policies excluding anyone with a criminal history may have an adverse impact -African-Americans & Latinos are arrested & convicted at a much higher rate than whites An individual assessment should be made

Defamation

False statements that reflect badly on a person, communicated to others, which results in damage to the person's reputation.

nepotism

Favoritism toward family members and other relatives.

· What are the 10 protected classes and what laws pertain to each?

Federal Antidiscrimination Statutes: Race, Color -Title VII, Civil Rights Act, 42 U.S.C. §1981 Sex -Title VII, Civil Rights Act, Equal Pay Act National Origin -Title VII, Civil Rights Act, 42 U.S.C. §1981, Immigration Reform and Control Act Religion -Title VII, Civil Rights Act Citizenship (citizens or legal aliens) -Immigration Reform and Control Act Age - 40 and over -Age Discrimination in Employment Act Disability "Qualified individual with a disability" -Americans with Disabilities Act; The Rehabilitation Act Pregnancy (pregnancy, childbirth, related) -Pregnancy Discrimination Act Military Service -Uniformed Services Employment & Reemployment Rights Act Genetic information -Genetic Information Nondiscrimination Act

· Understand scope of employment.

Generally, employers are legally responsible for the actions of their employees while they are acting within the scope of employment. Actions within the scope of employment: -Relate to the work the employee was hired to perform; -Take place substantially within the workplace and during working hours; and -Serve, at least partially, the interests of the employer. Exception: -Employers may also be liable for harmful actions of their employees that are outside the scope of employment if: -The employer intended the harm to occur; -The employer was negligent or reckless in allowing the harm to occur; or -The harmful actions were aided by actual or apparent authority conferred on the employee by the employer.

· Understand arbitration agreements.

In arbitration, a neutral third party (the arbitrator) functions more like a private judge. Arbitrators hear disputes and render decisions that are almost always final and binding on the parties. It is clear that arbitration agreements requiring employees to use arbitration rather than the courts as the means of resolving employment law claims are generally enforceable. The employee must agree, in writing. The Federal Arbitration Act (FAA), enacted by Congress in 1925, requires courts to enforce most written arbitration agreements. The Court's evident enthusiasm for arbitration does not mean that arbitration agreements will always be enforced. There are additional limitations on the enforceability of mandatory arbitration agreements. Fundamentally, arbitration agreements are contracts. Courts decline to enforce contracts when fraud is involved, the contract was entered into under extreme duress, or the contract is unconscionable. In some states, arbitration agreements will not be enforced if they are "unconscionable," both procedurally and substantively. A contract is "procedurally unconscionable" if drafted by the party with greater bargaining power and presented on a "take it or leave it" basis without opportunity for negotiation or modification. Ex: cell phone contract A contract is "substantively unconscionable" if its terms are markedly unfair to the less powerful party, particularly by imposing limits and burdens on the less powerful party which are not shared by the other. But like other contracts, arbitration agreements are subject to contract defenses.

· What factors must employers decide in the application process?

In the application process, employers decide: -What must be done to apply. -Whether applications will be accepted. -The period of time for which applications will be accepted. -How long submitted applications will remain valid.

partners

Individuals who personify the business and function as principals rather than agents.

· What is a breach of contract?

Is established by proof of a failure to live up to binding promises, regardless of intent Concerns promises made about future terms and conditions of employment -But if false promises are made knowingly, this is fraud

legal compliance strategy

Knowledge of employment law that help recognize, analyze, and deal effectively with the many employment law issues that one is likely to encounter.

· What is the role of manages in legal compliance?

Knowledge of employment law will help you recognize, analyze, and deal effectively with the many employment law issues that you are likely to encounter. It should also enable you to put in place sound policies and practices that prevent many legal problems from arising in the first place. To enforce compliance with established law and develop strategies for dealing with legal issues that are not clear. To know when to seek legal advice. An employer should define its legal compliance strategy.

class action lawsuits

Lawsuits where numerous plaintiffs join forces in claiming that their rights were violated in essentially the same manner by their employer.

· What do medical inquiries include?

Medical Inquiries Prior to a Conditional Offer of Employment -Employers must refrain from seeking medical information from all applicants, disabled or not Medical inquiries include -Questions about disabilities -Medical and psychological conditions -Medical histories -Medications taken -Worker's compensation claims filed But an employer may ask the applicant about his ability to do the job, and ask him to demonstrate how he would do it Following a conditional offer of employment (hired if pass medical exam), the employer can make any medical inquiry or perform any type of medical exam (excluding genetic tests) if all are subjected to same inquiries and medical exams The information learned may not be used to discriminate against qualified persons

· What are the NLRB's conflicting rulings regarding students and interns?

NLRB's conflicting rulings: -Graduate students & teaching assistants at private universities are primarily students, not workers -Medical interns and residents are employees with the right to unionize -Grant-in-aid scholarship football players at Northwestern University are employees with right to unionize; this decision on appeal -"Compelling reasons" to reconsider the employment status of university graduate assistants; NLRB granted review in 2 cases, but the parties settled Interns: -College students seek internships to get a job, but many more internships are now unpaid -DOL's Wage & Hour Division issued factors for determining employment status of interns; most working for private employers should be paid

· Know the elements of a claim for negligent hiring.

Negligent Hiring To establish that negligent hiring has occurred, a plaintiff must show: A standard of conduct or duty to others existed with respect to taking reasonable steps to avoid hiring unfit employees. the extent of any suck duty is based on: - foreseeability of harm to others if an unfit person is hired for a particular job -knowledge of unfitness that the employer had or should have had if proper hiring procedures were used. - public policy The employer failed to exercise the proper degree of care and hired an unfit employee A coworker or another third party was harmed by the unfit employee The employer's failure to exercise the proper degree of care in hiring was the proximate cause of the harm or injury that occured

Know and understand what the 5 substantive rights are under employment law.

Nondiscrimination and Equal Employment Opportunity - a central part of employment law is that set of protections for employees against discriminations based on their race, sex, age, and other grounds. Freedom to Engage in Concerted Activity and Collective Bargaining - Labor laws exist to protect the rights of employees to join together to form labor unions and attempt to improve their terms and conditions of employment through collective bargaining with their employers. Terms and Conditions of Employment that Meet Minimum Standards - some employment laws protect workers in a more direct fashion by specifying minimum standards of pay, safety, and other aspects of employment. Protection of Fundamental Rights - some legal challenges to employer practices are based on broader civil liberties and rights Compensation for Certain Types of Harm - employees can take legal action to recover damages when, for example, they are the victims of employer negligence, are defamed, or have emotional distress inflicted upon them; their employment contract is breached; or they are wrongfully discharged.

integrated enterprise

Organizational entities presented as separate that might be deemed parts of a single.

· What does the EEOC consider in regards to partners?

Partners, officers, board members, major shareholders are generally not employees But law firm partners brought age discrimination suit; EEOC rejected firm's argument that partners were not covered by Age Discrimination in Employment Act, since they had no influence over workings of firm, could not vote on partnerships, division of profits, etc. The EEOC uses the following criteria to distinguish between employees and partners: -Whether the organization can hire or fire the individual or set rules and regulations controlling the individual's work -Whether and to what extent the organization supervises the individual's work -Whether the individual reports to someone higher in the organization -Whether and to what extent the individual is able to influence the organization -Whether the parties intend for the individual to be an employee or a partner as expressed in written agreements or contracts -Whether the individual shares in the profits, losses, and liabilities of the organization

· Know the elements of an adverse impact claim.

Plaintiff must prove a prima facie case: -A neutral requirement disproportionately limits the employment opportunities of a protected class of which plaintiff is a member. -The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. If Plaintiff proves a prima facie case, then Defendant must prove that the challenged requirement is job related and consistent with business necessity. -In age discrimination cases, the employer must show that the requirement is a reasonable factor other than age. If Defendant successfully defends the requirement, Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it. (Does not apply in age discrimination cases.)

· Know the pretext-indirect method of analyzing disparate treatment.

Plaintiff must prove a prima facie case: -Plaintiff's relevant protected class characteristic -Applied for the employment opportunity -The employment opportunity was available -Plaintiff was qualified for it -Plaintiff was denied the opportunity -Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics If Plaintiff proves a prima facie case, then Defendant must produce evidence of lawful motive for the employment decision. If Defendant produces such evidence, Plaintiff may rebut by: (last ditch effort) -Providing evidence that casts doubt on Defendant's claimed motive, and/or -Providing other evidence supporting the claim of discriminatory motive

· Know what factors determine whether employment laws apply.

Public or Private Sector Employment - The legal environment differs substantially depending on whether public sector employees (i.e., government) or private-sector employees are being considered. The public and private sector does not refer to whether a company trades its stock on the stock market (i.e., publicly-traded versus privately held companies), but rather whether the employer is a government agency or a corporation (including private, nonprofit agencies). Unionized or Nonunion Workplace - when employees opt for union representation and negotiate a collective bargaining agreement with their employer, the employer is contractually committee to live up to the terms of the agreement. Employers in unionized workplaces are also more limited in their ability to make unilateral changes in workplace practices without first negotiating those changes with unions. Discipling or discharge of a unionized employee is contractually limited to situations where the employer can establish "just cause" for the discipline or discharge, which stands in stark contrast to the at-will employment of most nonunion workers. Employer Size - There are two countervailing factors to consider, however. · *First, the minority of companies that are covered nonetheless employ most U.S. workers (because each larger company employs many more people). · *The second important factor is that most states have enacted laws that mirror federal employment laws and that apply to smaller workplaces. · *There is another aspect to the size issue. Counting the number of employees that an employer has is more complex than it first appears. An employer is defined as someone "who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . ." "Current" calendar year refers to the year in which the alleged discrimination occurred. · *The Supreme Court has ruled that the proper method for counting employees is the payroll method. Under this method, an employee is counted for each full week between when she is hired and when she leaves employment, regardless of the number of days or hours the employee worked during those weeks. Geographic location - The interrelationship between federal and state laws is a complex legal matter. *States are free to enact laws pertaining to issues not addressed by federal law. State laws also can match or exceed the protections available under federal laws dealing with the same matters, but they cannot reduce the rights employees have under federal law. Thus, state laws are important not only because they reach smaller workplaces than federal employment laws but also because they sometimes provide employees with rights not available under federal law. Government Contracts - Federal, state, and local governments sometimes use the contracting process as leverage to get employers to implement desired workplace practices. Employers that contract to do business with the federal government (e.g., defense contractors, construction companies, and computer suppliers) and that meet certain other criteria are required to engage in affirmative action as a condition of their contracts. Industry and Occupation - Most employment laws apply to any industry, but some are more narrowly targeted. *The Omnibus Transportation Employees Testing Act of 1991 mandates extensive drug (and alcohol) testing, but only for employees in industries regulated by the Department of Transportation (e.g., airlines, railroads, trucking companies). *Employees in the historically dangerous mining industry are not covered under the Occupational Safety and Health Act, but instead under a separate statute, the Mine Safety and Health Act. Agricultural workers, despite their generally poor working conditions, are wholly or partly excluded from the protection of many employment laws, including the National Labor Relations Act, the Fair Labor Standards Act, and state workers' compensation statutes. An important example of an occupation-based distinction is the National Labor Relations Act's exclusion of supervisors and managers.

· Understand the importance of statements of employers during recruitment.

Recruitment gains information from applicants, but also discloses information to applicants about the job -These statements can have legal consequences -Employers might be tempted to downplay negative information, or make promises regarding the duration of employment, promotion, or pay raises when trying to recruit desired candidates -Misrepresentations and unfulfilled promises can give rise to many legal claims, including fraud, negligent misrepresentation, and breach of contract

· Understand the 2 broad classes of protected activity: participation/opposition

Retaliation focuses on the employee's protected activity rather than on the employee's protected class characteristics Two broad classes of protected activity: Participation · -Involvement in the enforcement of an antidiscrimination law Opposition · -Resisting or speaking out against discrimination apart from participating in formal enforcement procedures

· What protected classes are not recognized under federal law?

Some protected classes are recognized under state or city law, but not federal law: -Marital status -Sexual orientation -Gender identity -Tobacco/alcohol use -Others

· Understand the subordinate bias (cat's paw) theory.

Subordinate Bias (cat's Paw) theory may apply when there is evidence of a discriminatory motive by a supervisor or other manager, but not on the part of the official who makes the decision -The discriminatory motive of a lower level employee can result in liability even though the decision-maker is someone else

· Know the 2 requirements of the IRCA.

The Immigration Reform & Control Act (IRCA) has two main requirements: -Employers are prohibited from knowingly hiring or retaining unauthorized aliens -Employers with 4 or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship For all newly hired workers, within 3 days, the employer must verify employment eligibility by completing federal I-9, which requires certain documents, including: (have to have original in hand and make sure to check the dates on each document is still valid) -Driver's license -Birth certificate -US passport -Resident alien registration card -Unexpired employment authorization document -And others Legal aliens are those who have the legal right to work in the U.S. Illegal aliens are those who are unauthorized or undocumented workers Enforcement of IRCA, previously lax, increased substantially around 2006 Employers encouraged to use E-Verify, an electronic program permitting employers to verify the eligibility of potential employees

Foreseeability

The ability to anticipate harm before the fact.

Tort

The civil wrongs that harm people.

Respondeat superior

The common law doctrine that makes employers directly liable for harm to others that occurs when employees act within the scope of their employment.

· Know what the economic realities test and the common law test include. How do they differ?

The common law test considers the following factors: - The extent of the hiring party's right to control the manner and means by which the work is done - The level of skill required -The source of necessary tools and materials - The location of the work - The duration of the work -The extent of the hiring party's right to assign additional projects to the hired party -The extent of the hired party's discretion over when and how long to work -The method of payment - The hired party's role is in hiring and paying assistants - The extent to which the work is part of the regular business of the hiring party - Whether the hiring party is in business - Whether benefits of any kind are provided to the hired party -The tax treatment of the hired party The focus of the economic realities test is on whether the person doing work is in business for herself and not dependent on a particular employer to engage in this line of work. The test includes consideration of the following criteria: -Who has the right to control how, when, and where the work is done? - Who provides the tools, materials, and other resources needed for the work to be performed? -Does the method of payment afford opportunity for profit or loss, depending on how well the work is managed? - What is the duration of the working relationship? -Does the work require some type of special skill? -How integral to the business is the work that is being performed? - Overall, how dependent is the person performing the work on the hiring party? There is considerable overlap between the two tests, but the common law test emphasizes right of control, whereas the economic realities test focuses more on the market for the contractor's services and the question of whether the person performing work is in business for herself.

proximity

The connection between events as they actually unfolded.

· What constitutes an independent contractor?

The criteria for distinguishing between employees and independent contractors point to several other things that employers should do (or not do) to establish the independent contractor (IC) status of persons performing work. It is not essential that every one of these conditions be met, but if several cannot be satisfied, that is a good indication that the worker should not be treated as an independent contractor: -Require that ICs supply their own tools, materials, and equipment and pay their own business expenses -Require that ICs hire their own assistants -Pay ICs a flat fee for the work performed rather than an hourly or weekly rate -Closely review long-term ICs and do not assign new projects without renewing agreements -Don't have ICs doing the same work that regular employees are doing or work that is central to the business that the company is in -Don't provide benefits to ICs, including paid time off -Make it clear that ICs are free to offer their services to others

stare decisis

The desire for consistency and stability in the law; a Latin phrase that means "let the decision stand."

Adverse (disparate) impact

The disproportionate limitation or denial of employment opportunity for some protected class group that results from the use of a "neutral" requirement or practice that cannot be adequately justified.

· Who is an application for a job?

The government's definition of applicant is broad and includes any person who indicates an interest in being considered An internet applicant is a person who expresses interest in employment via the internet or other electronic data technology

· What does the Department of Labor (Wage and Hour Division) say about interns?

The guidance incorporates the DOL's six factors but looks at the totality of the circumstances, rather than requiring strict compliance with each criterion. It allows for immediate benefit to the employer to be offset by costs of providing close supervision and training and for interns to occasionally perform work done by regular employees, provided that this would not result in the displacement of regular employees. For now, the best advice for employers offering unpaid internships is to substantially satisfy the DOL's factors, including: -that a college should oversee the internship and provide academic credit -the internship should provide the intern with general skills that could be used in multiple job settings -the intern should not perform the work of the business on a regular basis -the business should not be dependent on the work of the intern -the intern should not be used as a substitute for regular employees or to bolster staffing -the intern should receive close supervision; the intern's experience should be more like job shadowing than holding a job -the internship should be for a fixed, relatively brief, duration agreed upon at the outset of the relationship -the internship should not generally be used as a trial period in anticipation of eventual hiring.

right of control

The hiring party has the authority to control where, when, and how the work gets done, even if that party chooses not to fully exercise its authority or to delegate certain decisions to the person doing the work.

Collective bargaining

The institution which recognizes the value of employees banding together to deal with their employers and the fact that the desires of employees and employers sometimes clash.

negligence

The legal concept based on the idea that people sometimes have a duty to other people to exercise reasonable care in carrying out certain activities.

· What is a prima facie case?

The main thing that the prima facie case accomplishes is the elimination of some of the most common nondiscriminatory reasons for denial of an employment opportunity, thereby rendering discrimination a more plausible explanation. Plaintiff must prove a prima facie case: -Plaintiff's relevant protected class characteristic -Applied for the employment opportunity -The employment opportunity was available -Plaintiff was qualified for it -Plaintiff was denied the opportunity -Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics If Plaintiff proves a prima facie case, then Defendant must produce evidence of lawful motive for the employment decision. If Defendant produces such evidence, Plaintiff may rebut by: (last ditch effort) -Providing evidence that casts doubt on Defendant's claimed motive, and/or -Providing other evidence supporting the claim of discriminatory motive

Fair credit reporting act (FCRA)

The major federal law regulating the gathering, sharing, and use of information by employers and consumer reporting agencies.

Payroll Method

The method under which an employee is counted for each full week between when she is hired and when she leaves employment, regardless of the number of hours the employee worked during those weeks.

relevant labor market

The protected class composition of people who are qualified for the type of work in question and reside within a reasonable recruitment area.

labor trafficking

The recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of obtaining his or her labor or services, through the use of force, fraud, or coercion and that subjects the person to involuntary servitude, peonage, debt bondage, or slavery.

pretext

The underlying premise that employment decisions are made either for discriminatory or lawful reasons.

Disparate Treatment

The unequal treatment based on one or more protected class characteristics that results in the limitation or denial of employment opportunity.

neutral message in want ads and job announcements

The wording of want ads and other types of job announcements that do not express or imply a preference for some protected class group over another.

· What is the history of employment law?

Timeline of Major U.S. Employment Laws o 1900 · Workers' Compensation (most states between 1911 and 1920) o 1920 · Railway Labor Act (1926) · National Labor Relations Act (Wagner Act) (1935) · Social Security Act (1935) · Fair Labor Standards Act (1938) o 1940 · Labor-Management Relations Act (Taft-Hartley Act) (1947) o 1960 · Equal Pay Act (1963) · Title VII of the Civil Rights Act (1964) · Executive Order 11246 (1965) · Age Discrimination in Employment Act (1967) o 1970 · Occupational Safety and Health Act (1970) · Rehabilitation Act (1973) · Employee Retirement Income Security Act (1974) · Pregnancy Discrimination Act (1978) o 1980 · Common Law Wrongful Discharge Claims (majority of states adopted one or more of these from the late 1970s through the 1980s) · Consolidated Omnibus Budget Reconciliation Act (COBRA) (1985) · Immigration Reform and Control Act (1986) · Employee Polygraph Protection Act (1988) · Worker Adjustment and Retraining Notification Act (1988) o 1990 · Americans with Disabilities Act (1990) · Older Workers Benefit Protection Act (1990) · Civil Rights Act of 1991 (1991) · Family and Medical Leave Act (1993) · Uniformed Services Employment and Reemployment Rights Act (1994) · Health Insurance Portability and Accountability Act (1996) o 2000 · Pension Protection Act (2006) · ADA Amendments Act (2008) · Genetic Information Nondiscrimination Act (2008) · Patient Protection and Affordable Care Act (2010)

· What are major anti-discrimination laws?

Title VII of Civil Rights Act of 1964 Equal Pay Act Age Discrimination in Employment Act Rehabilitation Act Pregnancy Discrimination Act Americans with Disabilities Act

· What is recruitment?

To establish an employment relationship, there must be one or more ways in which an employer communicates information about the availability of an employment opportunity, and persons interested in pursuing the opportunity make their interest known to the employer. The many recruitment methods include: -want ads placed in newspapers or professional publications -Internet job postings -social media -help-wanted signs placed in storefronts -employment agencies -executive search firms -union hiring halls -job fairs -college placement offices -referrals from state employment services -word of mouth.

· Know the 2 types of credit reports.

Two types of credit reports: Consumer credit report -Any communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, character, or reputation, which is to be used as a factor in assessing eligibility for employment purposes. Investigative report -A report containing similar information, but also based on personal interviews with friends, neighbors, and other associates.

· What is included within scope of employment?

Under respondeat superior, employers are liable for the harm to others caused by their employees acting within the scope of employment: -The employee's actions relate to the kind of work he/she was hired to perform -They take place substantially within the workplace during working hours -They serve, at least partially, the interests of the employer

· How are cases handled that include undocumented workers?

Undocumented workers may pursue legal claims, but remedies (such as back pay) might be denied -Payments due for unpaid wages or job injury must be paid, since allowing non-payment would encourage firm to hire undocumented workers

reverse discrimination

Use of affirmative action by an employer where protected class characteristics are taken into account in making employment decisions that other employees find discriminatory.

· Know the different visa classifications and the examples of the workers included in each.

Visa classifications include: H-1B visas (persons of distinguished merit) -Granted to persons in specialty occupations; capped at 65,000. -Require a bachelor's degree or higher. -Limits the employee's stay to 6 years. -Typically, such applicants are systems analysts, engineers, accountants, etc. -H-2A visas are for agricultural or logging H-2B visas (temporary workers) -15 % of workforce are H1-B visa holders -H-2B visas are for temporary workers in other industries (but not nurses) L-1 visas (intracompany transfers) -L-1 visas permit multinational firms to temporarily transfer staff from foreign facilities to the U.S. -Attractive to employers because number not capped, and carry fewer restrictions -But under increased scrutiny -No requirement that these workers be paid the prevailing rate -Firm must station employees at company's own facilities and retain supervisory authority TN visas (highly skilled workers from Canada and Mexico) -A special non-immigrant classification in the United States that offers expedited work authorization to a citizen of Canada or a national of Mexico, created as a result of provisions of the North American Free Trade Agreement that mandate simplified entry and employment permission for certain professionals from each of the three NAFTA member states in the other member states A person may be eligible for TN status, if: -The prospective employee is a citizen of Canada, or Mexico; -The profession is one cited under the NAFTA treaty; -The company seeking to pursue TN status with the prospective employee meets qualifications cited under the NAFTA treaty; -The prospective employee has been issued a formal, written full-time or part-time offer of employment in the United States, Canada or Mexico; -The prospective employee has the qualifications to practice in the profession in question. -Examples of TN professionals: Accountant, Biologist, Computer Systems Analyst

Concerted Activity

any effort by employees to join together for "mutual aid or protection"

· When can an employer be liable for harmful actions of their employees that are outside the scope of employment?

liability if the employer intended the harm to occur, was negligent or reckless in allowing it to occur, impermissibly delegated an employer duty, or if the employee's harmful actions were aided by the existence of apparent or actual authority conferred by the employer.

legal aliens

non-citizens who are eligible to work in the United States

illegal aliens

non-citizens who are not eligible to work in the United States

Knowledge (within the context of negligent hiring with background checks)

of unfitness that the employer had or should have had if proper hiring procedures were used.

· Who is an employee?

the definition is insufficient to distinguish between employees and independent contractors because both do work in exchange for pay. Difficulties may also arise in distinguishing employees from temps, interns, students, volunteers, and partners. Most employment laws define employee as: "An individual employed by an employer" Because both employees and independent contractors perform work in exchange for pay, other factors must be considered to distinguish between them. The economic realities test is one approach used by courts to distinguish between employees and independent contractors, particularly in Fair Labor Standards Act (wage and hour) cases. The test includes consideration of the following criteria: · Who has the right to control how, when, and where the work is done? · Who provides the tools, materials, and other resources needed for the work to be performed? · Does the method of payment afford opportunity for profit or loss, depending on how well the work is managed? · What is the duration of the working relationship? · Does the work require some type of special skill? · How integral to the business is the work that is being performed? · How dependent is the person performing the work on the hiring Another widely used method for determining employee status is the common law test. It considers the following factors: The extent of the hiring party's right to control the manner and means by which the work is done The level of skill required The source of necessary tools and materials The location of the work The duration of the work The extent of the hiring party's right to assign additional projects to the hired party The extent of the hired party's discretion over when and how long to work The method of payment The hired party's role is in hiring and paying assistants The extent to which the work is part of the regular business of the hiring party Whether the hiring party is in business Whether benefits of any kind are provided to the hired party The tax treatment of the hired party

Writ of certiorari

when the court decides to hear a case, it issues a writ of certiorari, certiorari is a writ issued to seek court's review (web definition) Order by the Supreme Court directing a lower court to send up the records of a case for review