L201 Employment law

Requirements of hostile environment claim:

-harassment must be unwelcome -behavior sufficiently severe or pervasive -objective(reasonable person) or subjective -alleged harasser must have targeted victims because of their sex

NLRA prohibited certain unfair labor practices that were believed to discourage collective bargaining such as:

-interfering with employees' rights to form, join, or assist labor unions -interfering with the formation of unions -discriminating against employees due to union membership -discriminating against employees because they have filed charges or testified under the NLRA -refusing to bargain collectively with any duly designated employee

Defenses of ADEA

-reasonable factors other than age -ADEA allows employers to discharge an employee for good cause -allows employers to observe seniority and it has a BFOQ

Federal insurance contributions act (FICA) finances various form of assistance:

-social security -survivors' benefits to family members of deceased workers -disability benefits -medicare system

Title VII defenses

1) Same-Decision Defense - proves that it would have taken action in the absence of the unlawful motivating factor 2) Seniority - if employer treat employees different pursuant to a bona fide seniority system 3) Various "merit" defenses - employer acts pursuant to a bona fide merit system =, based on earnings on quality or quantity of production or the results of a professionally developed ability test 4) BFoQ Defense - discrimination allowed when the trait is a bona fide occupational qualification that is reasonably necessary to the business in question

Title VII incorporates 2 theories of discrimination

1. Disparate treatment 2. disparate impact

The arising out of employment test usually requires a sufficiently close relationship between the injury and the nature of employment. Examples of tests used to determine this relationship are:

1. Increased risk: the employee recovers only if the nature of her job increases her risk of injury above the risk to which the general public is exposed 2. Positional risk: an injured employee recovers if her employment caused her to be at a place and time where her injury occurred

3 important exceptions to employment at will:

1. Public policy exception (most common) 2. The implied covenant of good faith and fair dealing 3.Promises by employers

The states fund workers' comp. by compelling covered employers to:

1. Purchase private insurance 2. self insure 3. make payments into a state insurance fund

FLSA regulates wages and hours by entitling employees to:

1. a specified minimum wage whose amount changes overtime 2. a time and a half rate for work exceeding 40 hours per week

Equitable relief is permissible if

1. an employer has engaged in severe, widespread, and longstanding discrimination 2. the order does not unduly restrict the employment interest of white people 3. it does not force an employer to hire unqualified workers

Injured employees can sue outside of workers compensation when

1. an employer intentionally injures an employee 2. the employer did something or maintained a condition in the workplace that the employer knew was of substantial harm to the employee 3. the employer was acting in dual capacity in relation to the employee (ex: employee injured on job by a defect in a product manufactured by the employer)

Voluntary racial preferences that favor minorities who are qualified for the job in question survive Title VII attack if they:

1. are intended to correct a racial imbalance involving underrepresentation of minorities in traditionally segregated job categories 2. don't "uneccessarily trammel" the rights of white employees or create an absolute bar to their advancement 3. are only temporary

To be work related, the injury must:

1. arise out of the employment 2. happen in the course of the employment

Workers' compensation systems eliminate these 3 traditional defense for employers:

1. contributory negligence 2. assumption of risk 3. fellow servant rule

Sexual stereotyping is behavior that either

1. denies an employee opportunities by requiring that he/she must have traits associated with his or her sex 2. Penalizes him/her for lacking such traits

The substantially equal work requirement is met if the plaintiff's job and the higher paid male employee's job involve each of the following:

1. equal effort 2. equal skill 3. equal responsibility 4. similar working conditions

ERISA contains two requirements

1. funding requirement: protects plan participants against loss of pension income 2. vesting requirement: determine when an employee's rights to receive pension benefits become unforfeitable

The recoveries for workers comp usually include:

1. hospital and medical expenses 2. disability benefits 3. specified recoveries for the loss of certain body parts 4. death benefits to survivors and/or dependents

FLSA also forbids oppressive child labor which includes:

1. most employment of children below the age of 14 2. employment of children age 14-15, unless work is approved by dept. of labor 3. employment of 16-17 year olds who work in hazardous occupations

Successful suits under the public policy exception of employment at will usually involve firings caused by an employee's:

1. refusal to commit an unlawful act 2. performance of an important public obligation (jury duty) 3. exercise of a legal right or privilege

Four defenses that an employer can show to defend an EPA claim:

1. seniority 2.Merit 3. quality or quantity of production 4. any factor other than sex

Employer is vicariously liable for a supervisors sexual harassment unless he can prove (affirmative defense):

1. that the employer exercised reasonable care to prevent and promptly correct any sex harrassing behavior 2. That the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm

Under the FMLA, covered employees are entitled to a total of 12 work weeks of leave during a 12 month period for one or more of the following reasons:

1. the birth of a child and the need to care for the child 2. the adoption of a child 3. the need to care for a spouse, child, or parent with a serious health condition 4. the employee's own serious health condition

National origin discrimination includes discrimination based on

1. the country of one's or one's ancestors origin 2. one's possession of physical, cultural, and linguistic characteristics identified with people of a particular nation

Wrongful termination of public policy includes 3 elements that the plaintiff must show:

1. there is clear and substantial public policy related to the plaintiff's conduct 2. The termination would discourage the plaintiff's conduct and thereby jeopardize public policy 3. that the plaintiff's conduct, which supports the public policy, caused the termination

Differences between a disparate impact claim under ADEA vs. Title VII

ADEA the employer's defense only needs to prove that the policy or practice was reasonable under the circumstances; not to prove business necessity; ADEA disparate impact easier to defend

prohibits discrimination based on age against persons 40 or older. Applies to employers with more than 20 employees and partaking in an industry affecting interstate commerce.

Age Discrimination in Employment Act (ADEA)

covers employers who have 15 or more employees and prohibits discrimination against qualified individual with a disability

Americans with Disabilities Act (ADA)

claims involving allegations that an employer's policies or practices that are seemingly neutral with regard to race, color, sex, or national origin have a disproportionate negative impact on members of one of those groups.

Disparate Impact

claims that involve allegations that an employer treated an employee differently because of the employee's protected status (race, color, sex, religion, or national origin)

Disparate Treatment

forbids sex discrimination regarding pay; amendment to FLSA

Equal Pay Act (EPA)

directly regulate key terms of employment such as wages and hours worked

Fair Labor Standards Act (FLSA)

covers those employe for at least 12 months and for 1250 hours during those 12 months, by an employer employing 50 or more employees at the employee's worksite or within a 75 mile radius of that work site

Family and Medical Leave act (FMLA)

prohibits employers from allowing an employee to be subjected to unwelcome, sex related behavior that is sufficiently severe or pervasive to change the conditions of her employment and create an abusive working environment, even if tangible job detriment accompanies it

Hostile environment harassment

gave employees the right to organize by enabling them to form, join, or assist labor organizations; also allowed them to bargain collectively through their own reps

National Labor Relations Act (NLRA)

a case that eliminates the most common nondiscriminatory reasons for the challenged employment decision and creates a presumption of discrimination

Prima facie

(this for that) (mostly relevant for sexual harassment cases) when an aspect of a job is made contingent of an employee agreeing to do something with a sexual overture (strict liability case); ex: supervisor firing secretary because she refuses to suck his wang

Quid pro quo sexual harassment

includes making existing facilities readily accessible, acquiring new equipment, restructuring jobs, modifying work schedules, reassigning workers to vacant positions

Reasonable accommodation

what courts have held with regard to whether Title VII protects persons from discrimination based on sexual orientation

Sixth, seventh, and second circuits recently decided that discrimination based on sexual orientation is a subset of discrimination based on sex.

tries to check abuses and to protect employees' expectations that promised pension benefits will be paid; imposes fiduciary duties, record keeping, reporting, and disclosure requirements

The Employee Retirement Income Security Act (ERISA)

most important measure directly regulating workplace safety; with its general duty clause, imposes a duty on employers to provide their employees with a workplace and jobs free from recognized hazards that may cause death or harm

The Occupational Safety and Health Act (OSHA)

Title VII Remedies

The claimant can recover back pay, compensatory and punitive damages, attorneys' fees and court costs, and equitable relief (orders compelling hiring, reinstatement, or retroactive seniority)

prohibits discrimination based on race, color, religion, sex, and national origin in hiring, firing, job assignments, pay, access to training and apprenticeship programs, and most other employment decisions

Title VII

A successful claim pursuant to the implied covenant of good faith and fair dealing exception is usually based on

a bad-faith termination that has the effect of denying an employee benefits or compensation to which she is entitled (ex: firing an employee before she is supposed to get a bonus)

Title VII covers:

all employers employing 15 or more employees and engaging in an industry affecting interstate commerce; also covers refferals and certain unions

Religious discrimination is permissible if

an employer can't reasonably accomadate the religious practice without suffering undue hardship

Religion is broadly defined; the EEOC says that it includes

any set of moral beliefs that are sincerely held with the same strength as traditional religious views

BFOQ defense does not protect:

color or race discrimination

Employer can only be liable for nonsupervisory harassment under

direct liability (will be directly liable if the employer knew or should have known about the harassment and was negligent in responding to correct or prevent the offending behavior)

BFOQ applies to

disparate treatment

Those eligible for unemployment compensation benefits conditioned on the:

employees having worked for an employer for a specified time period and for having a certain minimum income over such a period

either party can terminate employment of ann indefinite duration for good cause, no cause, or even an unfair cause (as long as it doesn't violate a specific law)

employment at will

Unlike the FLSA, EPA covers

executive, administrative, and professional employees

Many exemptions of FLSA include

executive, administrative, and professional personnel

Those employers covered by the FMLA

fed, state, and gov. agencies

excused an employer for liability when an employee's injury resulted from the negligence of a coemployee

fellow servant rule

ADA protects both

individuals who can perform the job despite their disability and individuals who could perform the job if given reasonable accommodation

OSHA applies to every employer engaged in ______________ or whose business affects this and who has at least one employee

interstate commerce

If the plaintiffs show a disparate impact, the employer loses unless

it demonstrated that the challenged practice is job related for the position in question and consistent with business necessity

The method of proving disparate impact claim does not require proof of the employer's motives but instead

it focuses on the results

Worker's compensation protects:

only employees and not independent contractors

To prove an ADEA claim the plaintiff must

prove that age was the "but for" cause of the challenged employment decision

Once the plaintiff establishes a prima facie case, the employer must

rebut the presumption of discrimination by producing evidence that the challenged employment decision was taken for legitimate, nondiscriminatory reasons

generally requires inpatient care in a hospital or continuing care by a health care provider

serious health condition

Adverse impact usually established by

statistical evidence showing that the practice results in disproportionately harsher outcomes for the protected class

BFOQ defense usually is unavailable where the discrimination is based on

stereotypes or on the preferences of workers or customers (also when the discriminatory practice promotes goals)

All workers' compensation systems allow injured employee's to recover under

strict liability, thus removing any need to prove employer negligence

someone who has the authority to make or recommend tangible employment decisions affecting the victim

supervisor

Employers are vicariously liable for the sexual harassment of their employees by

supervisors

A prima facie case of disparate impact involves showing

that the challenged, facially neutral practice has an adverse impact on the plaintiff's race, color, religion, sex, or national origin

If the employer produces satisfactory nondiscriminatory reasons, the plaintiff must then show

that the discrimination actually occurred, typically by showing that the employer's reasons were a mere pretext for discrimination

Exempted from OSHA are

the US gov., states and their political subdivisions, and certain industries regulated by other federal safety legislation

The in-the-course-of-employment requirement inquires whether the injury occurred within

the time, place, and circumstances of employment

EEOC gets tons of discrimination claims but....

they don't have the staffing, money, or time to file a lawsuit

Private parties with a Title VII claim have no automatic right to sue instead,

they must first file a charge with the EEOC or with a state agency

Those ineligible for unemployment compensation:

those who voluntarily quit work without good cause, are fired for bad conduct, fail to actively seek suitable new work, or refuse such work

Even if employer makes the demonstration of job related and consistent with business necessity for disparate impact, the plaintiff has another option:

to show that the employer's legitimate business needs can be advanced by an alternative employment practice that is less discriminatory than the challenged practice

Amount recoverable under workers' compensation is usually less than would be obtained in a successful negligence suit . t/f?

true

Sexual stereotyping violates Title VII . t/f?

true

protects employees after their employment ends by providing this for discharged workers

unemployment compensation

Title VII recoveries are capped to certain amounts that

vary with employer size

Employees recover only for:

work-related injuries