MGT 200: Exam 3

misclassification of employees regarding FLSA

-employer receives a fine for violating the FLSA -Department of Labor orders employer to pay employee back for any time worked by employee over the 40-hour week

union contracts typically include terms related to . . .

-wages -benefits (health care insurance and pension accounts) -work hours -overtime procedures -promotion systems as well as procedures for handling disciplinary violations, suspensions, terminations, and layoffs

tax-deferred retirement savings account

a retirement savings plan in which the employee commits to saving a certain percentage of base pay in an account that is controlled directly by the employee -the funds grow tax-free until they are withdrawn -some employers match the employee's contribution by paying an extra amount into the account based on a certain percentage of the employees base salary

the term strike implies . . .

a statutorily authorized work stoppage under the NLRA -other types of work stoppages (or slowdowns) are illegal, and employers may terminate employees, unionized or not, for engaging in illegal work stoppages

picketing

a union's patrolling alongside the premises of a business to organize the workers, to gain recognition as a bargaining agent, or to publicize a labor dispute with the owner or whomever the owner deals with -unions may also call for union member and public boycotts of the employer's product or services

in many states, an injured worker is not entitled to workers' compensation if the injury is . . .

1. intentionally self-inflicted 2. was the result of a knowing violation of safety rules by the employee 3. the employee's willfull misconduct or horseplay not condoned by the employer 4. employee's intoxication or illegal drug use 5. employee fails to give the employer timely notice of the injury as determined by the state statute, the claim is lost

coverage by the FLSA is not determined by . . .

job title -some employees have job titles that include the word executive, but they still qualify for FLSA coverage

the Patient Protection and Affordable Care Act (PPACA) and the Health Care and Reconciliation Act (HCERA)

mandates that all US citizens be covered by health care insurance plan -while the public policy goal is that business will provide their employees with health care coverage, a business may choose not to provide coverage and instead pay a penalty fee to the US government -law requires employers with 50 or more full-time employees to purchase health care insurance for their employees or face a penalty -offers small business owners (those employing fewer than 25 full-time workers) immediate tax incentives if they offer health care coverage to their employees and pay at least 50% of the total costs for their employees' coverage

disregarding results of a race-neutral employment or promotion test, even if done to avoid disparate impact liability, . . .

may give rise to a disparate treatment claim by affected employees or promotion candidates

employee privacy protection from use of regular or random drug or alcohol tests in the workplace is governed primarily by . . .

state statutes -laws vary considerably

proactive harassment preventative frame work

step 1: prevention -define, distribute, deter step 2: reporting and investigation step 3: enforcement and remediation

if a plaintiff is attempting to prove age discrimination based upon the fact that younger employees are treated more favorably, then the plaintiff must prove that the younger employees are . . .

substantially younger -many courts follow the general rule that the age difference must be at least 10 years difference -it is irrelevant whether the younger employee is a member of the protected class or not (Prescott 50, other employee 40, both members in same class, Prescott can still pursue discrimination) -ADEA protects only older employees -ADEA does not prohibit employers from discriminating against employees under 40 yrs old in favor of those in the intended protected class

Federal Unemployment Tax Act (FUTA)

temporary and permanent unemployment -provides limited payments to workers who have been temporarily or permanently terminated from employment through no fault of their own -funded by the employer only (only the employer pays FUTA taxes) -established a state-administered fund to provide payments to workers who have suffered sudden job loss (different among states) -in order to obtain unemployment benefits, the worker must actively seek new employment, and, if necessary, retraining in a different field

collective bargaining

the process of negotiating terms and conditions for employees in the collective bargaining unit

burden of proof

the responsibility of producing sufficient evidence in support of a fact or issue and favorably convincing the fact finder of that fact or issue

mixed motives definition

theory of employment discrimination in which the cause of the adverse employment action was motivated by both legitimate and discriminatory motives

disparate treatment definition

theory of employment discrimination predicated on overt and intentional discrimination -includes being treated differently because of one's membership in a protected class

child labor restrictions

under 14 no employment except newspaper sale or delivery 14-15 limited hours during school days in nonhazardous jobs (such as a busboy or dishwasher for a restaurant) 16-17 no limits on hours, but cannot work in dangerous jobs -such as mining or heavy industry and other hazardous jobs as defined in FLSA regulations -most states have implemented their own hours limit

Fair Labor Standards Act (FLSA)

wages and hours, child labor mandates: 1. payment of minimum wage 2. maximum 40-hour week 3. overtime pay rate 4. restriction on children working in certain occupations during certain hours

an employee's activities while using an employer's computer system are . . .

not protected by any privacy laws -all computer use is ordinarily subject to employee monitoring, including the right to: -track websites visited by employees -count keystrokes and mouse clicks -block employees from visiting specific internet sites -limit the amount of time an employee may spend at a specific website

steps for forming a union

1. Authorization cards -a group of employees, with a mutuality of interests, organizes an effort to have other workers sign authorization cards -30% of the collective bargaining unit must sign in order to proceed to the next step 2. Filing with NLRB -authorization cards are filed with the NLRB, and a formal union certification process begins when the NLRB sets a date for an election 3. Campaign -union organizers campaign according to fair labor practices -employers still have a right to limit any union campaign activities that take place on the employer's property and/or during the regular workday so long as they can justify the limits as being based on business reasons (such as safety or interference with business operations) and not simply an effort to stop unionization -management is also permitted to engage in certain practices to campaign against unionization -regulations prohibit employers from using threats of termination or demotions or incentives (such as bonus or vacation time) in exchange for a nonunion vote 4. Election -entire bargaining unit votes to either elect or reject unionization -a simple majority is required to certify the union 5. Certification or Rejection -if a simple majority voted for unionization, the union is certified -the employer must recognize the union as the exclusive bargaining representative of the workers and is required to bargain in good faith with the union thereafter -if a simple majority voted against unionization, the union is rejected

if the employer does provide a health care plan, two federal statutes regulate certain aspects of administering the plan . . .

1. Health Insurance Portability and Accountability Act (HIPAA) -sets administrative rules and standards designed to protect employee medical information and records from disclosure to a 3rd party 2. Consolidated Omnibus Budget Reconciliation Act (COBRA) -mandates that employers provide continuous coverage to any employee who has been terminated even if the worker was terminated for cause -requires that the employer provide the exact same health coverage for up to 18 months -^the employee has full responsibility for payment of all insurance premiums and administrative fees

the primary antidiscrimination statutes are . . .

1. Title VII of the Civil Rights Act of 1964 (and its subsequent amendments, especially the Civil Rights Act of 1991) 2. the Age Discrimination in Employment Act (ADEA) of 1967 3. the Americans with Disabilities Act (ADA) of 1990 (last amended in 2009) statutes classified into 2 classes: 1. laws that require the person in the protected class to receive equal treatment to that of nonclass members -Title VII of the Civil Rights act requires women to be treated equally with men 2. laws that require the person in the protected class to receive special treatment -ADA requires that persons with certain disabilities be given special treatment via reasonable accomodations by the employer, when possible

employee polygraph protection act

A federal law that prohibits most private sector employers from requiring a polygraph test as a condition of employment -the act permits employers to use polygraph tests when investigating losses attributable to theft or other economic loss ow when the employee is in the security of pharmaceutical industry -does not apply if the employer is a federal, state, or local government entity

2 ways implied contracts may arise

1. a manual of bulletin (such as an employee handbook) that is drafted and distributed by the employer may give rise to implied contract theory if the manual extends some protections or process to the employee that she would not have under the employment at will doctrine -if employee shows that she would reasonably conclude that the employer was presenting the manual as a statement of the conditions under which employment would continue, an implied contract may exist -regardless is the employer inserted disclaimed language ("this handbook is not a contract") 2. an oral promise made by an employer and that a reasonable person would believe extends protections against termination without cause -courts apply exceptions very narrowly

two important exceptions to the worker's compensation laws are cases in which . . .

1. an employer has engaged in actions that intentionally create conditions that result in harm 2. an employer acts with a reckless disregard for the safety of its employees -the injured or ill pary may bypass the workers' compensation system and sue the employer for a full recovery including punitive damages -once the injured party files a workers' compensation claim, he is barred from suing his employer in any suit related to the injury

to establish a prima facie case of disability discrimination, a plaintiff must show that he is . . .

1. disabled 2. a qualified individual 3. was subjected to unlawful discrimination because of his disability -also requires employees to make reasonable accommodations for a disabled employee in the workplace as long as the accommodations don't cause the employer to suffer undue hardship

the court held in Faragher and Ellerth cases than an employer could be held vicariously liable for sexual harassment by an employee when a nonsupervisory co-worker is the harasser if the employee can prove that the employer was negligent in either . . .

1. discovering the conduct 2. failing to respond to a sexual harassment complaint made to a supervisor

the 3 most common theories of discrimination

1. disparate treatment -McDonnell Douglas standard 2. mixed motives -Hopkins standard 3. disparate impact -Griggs standard

in classifying an employee as covered or exempt, employers must take into account multiple factors that are known as the duties test . . .

1. education or skill level or certifications required for the position, salary level, and compensation method -commission versus hourly 2. amount of physical labor required 3. amount of repetitive tasks -performing an unskilled task over and over again, as does a clerk in a company mailroom 4. degree of supervision required by the employer

The FMLA also affords employees certain protections related to job security . . .

1. employers are restricted from taking or threatening any adverse job action against the employee because of an FMLA leave 2. upon returning from the leave, employees are guaranteed employment in the same or a similar job at the same rate of pay 3. employers must reinstate an FMLA-leave employee immediately upon the employee's notification that the leave is over FMLA DOES NOT require that returning employees be credited with the seniority that was accrued while on leave (Although the FMLA does not require employers to pay employees on leave, it does require that the employer maintain the employee's health care benefits uninterrupted throughout the leave period)

the EEOC plays 2 important roles in ensuring discrimination between victims' protection under various statutes . . .

1. filing a complaint with the EEOC is the first step for a party claiming unlawful employment discrimination 2. in certain cases, EEOC will sue on behalf of the aggrieved employee -gives the aggrieved employees the full resources of the federal government -bc of the large volume of complaints filed, the EEOC typically focuses on cases that have some important legal significance or that involve employer conduct that was particularly egregious or was in bad faith

while there is no formula for determining a hostile work environment, courts have deemed certain behaviors as a violation of Title VII . . .

1. initiating a discussion of sexual acts, activities, or physical attributes in the workplace areas (such as cafeteria) 2. engaging in unnecessary or excessive physical contact 3. using crude, demeaning, or vulgar language 4. displaying pornographic pictures or movies -courts generally require that the harassment be severe and pervasive -meaning if an inappropriate incident occurred but was not subsequently repeated, that one-time incident will likely not support a claim for harassment -Title VII is gender-neutral and recognized sexual harassment as a form of discrimination regardless of the gender of the victim or harasser

Title VII provides aggrieved employees with a broad range of remedies to compensate for unlawful discrimination . . .

1. injunction -a court order to cease from engaging in a particular unlawful practice or an order compelling a party to act 2. reinstatement 3. compensatory damages in the form of back pay 4. retroactive promotions 5. requirements that the employer take certain actions in order to remedy patterns or practices resulting in discrimination -punitive damages: intended to deter future conduct of employers -available only when a plaintiff proves that a private employer acted with malice, in retaliation, or with reckless disregard to the employment discrimination laws

employers who are faced with the prospect of a strike have what options . . .

1. lockout -the shutdown of a business by the employer to prevent employees from working, thus depriving them of their employment and putting economic pressure on the union's members before the union can do the same to the employer through a strike -must have a legitimate business reason underlying the lockout -ex: TU waiting until Dec. (BigCo's busiest season to strike) -Big-co can perform lockout 2. replacement workers -nonunion employees hired by a company in order to continue its operations during a strike -when the strike is over, employers may either retain the replacement workers or discharge them (without liability) in favor of returning workers

state wage and hour laws

1. minimum paid rest periods -some states require a minimum rest period for workers that is typically based on the ratio of rest period versus hours work 2. minimum paid meal periods -21 states require employers to provide a certain period of time, typically 30 min, for a meal break during a normal workday 3. payday requirements -many states regulate the frequency of paydays for employees 4. prevailing wages requirements -majority of states require that whenever taxpayer money is in a construction project above a certain threshold, the contractor must pay the prevailing wage -prevailing wage refers to the hourly wage, usual benefits, and overtime paid in the largest city in each county to the majority of workers, laborers, and mechanics -Montana, prevailing wages must be paid for any publicly funded construction project costing in excess of $25,000

examples of employees who are not covered by the FLSA include . . .

1. professionals who require specialized study and certifications -attorneys, physicians, teachers, and accountants 2. management or supervisory employees 3. computer programmers and engineers 4. employees subject to certification and regulatory requirements -such as insurance adjusters of dental hygienists

disparate treatment under the ADEA requires that employer's intentional discrimination against the employee based on the employee's age be proved using a modified McDonnell Douglas standard for establishing a prima facie case . . . plaintiffs may make ADEA claims based on only . . .

1. protected class membership (40 or over) 2. satisfactory job performance -based on employer's legitimate expectations 3. adverse job action -termination or demotion 4. replacement with someone substantially younger -or more favorable treatment toward someone substantially younger 5. other evidence that indicates that is is more likely than not that the employee's age was the reason for the adverse employment action -if the employee makes a prima facie case, then the employer must present a nondiscriminatory reason for the adverse employment action -after that, it is up to the jury to decide the real reason

courts have fashioned several common law exceptions that help to limit the harshness of the rule on employees . . .

1. protections via an implied contract 2. the public public policy exception -also called the covenant of good faith and fair dealings exception in some states

generally a victim of sexual harassment alleges one of two theories . . .

1. quid pro quo theory -derived from latin phrase, "something for something else" -ex: harasser demands sexual favors as a condition of continued employment -or a prerequisite for a promotion or pay raise 2. hostile work environment -more common form of sexual harassment -violation of Title VII occurs when the conduct of the harasser (or group) is of such a severe or crude nature, or is so pervasive in the workplace, that it interferes with the victim's ability to perform her job responsibilities -standards for proving hostile work environment are relatively burdensome and require a discriminatory activity that is beyond teasing, offhand comments, and isolated incidents

today most labor unions in America are members of 2 larger umbrella organizations . . .

1. the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) 2. the Changes to Win Federation -which split from AFL-CIO in 2005

ECPA has two exceptions that severely limit its protections for employees . . .

1. the business-extension exception -permits an employer to monitor employee electronic communications on company-owned devices so long as this is done in the ordinary course of business 2. allows an employer to avoid liability if the employee consents to the monitoring -some employers now routinely require employees to consent to monitoring as a condition of employment

the employment-at-will doctrine does not apply in cases where . . .

1. the employee has an express or implied contract 2. courts have fashioned a common law exception 3. there is some specific statutory protection against job termination -antidiscrimination laws

In order to trigger protection under workers' compensation laws, the injury must meet two main criteria . . .

1. the injury was accidental 2. the injury occured within the course of employment -varies by jurisdiction, but most states courts have interpreted the scope of employment requirement broadly in favor of coverage of the injured worker

2 distinct theories of recovery under the FMLA . . .

1. the interference/entitlement theory, in which the employee alleges that the employer denied the employee the right to use the FMLA provisions 2. If the employee alleges that the employer took an adverse employment action against him (termination) that was connected to an FMLA claim made by the employee, the retaliation/discrimination theory applies -an employer may use either or both theories in pursuing an FMLA claim

McDonnell Douglas standard

1. the plaintiff must establish a prima facie case of discrimination to establish a claim that satisfies the prima facie requirement the plaintiff must establish that: 1. she is a member of a protected class 2. she applied for and was qualified for the job (or promotion, etc) and met the employer's legitimate expectations 3. she was rejected by the employer 4. the employer continued to seek applicants or filled the position with a person outside the protected class (in cases involving types of discrimination action unrelated to hiring or promotion, the appropriate prong test is adjusted accordingly) 2. once the plaintiff makes out a prima facie case, the second stage requires a burden of proof to shift to the employer, who then must articulate a legitimate, nondiscriminatory reason for the discriminatory action 3. if the employer does provide a legitimate, non discriminatory reason for firing the plaintiff, the 3rd stage of the standard contemplates that the burden then shifts back to the employee to show that the reason given by the employer is not the actual reason for employment action -in a disparate treatment case, the plaintiff is alleging intentional discrimination and the employer is asserting a legitimate reason for its action -it is up to the jury as the finder of fact to decide which version of facts is more compelling and believable

employees are covered under the FLSA if . . .

1. they earn below the minimum salary threshold established by the Department of Labor or 2. the duties test indicates that an employee's job requirement qualify him for coverage -highly compensated employees are always considered exempt

kinds of illegal work stoppages

1. violent picketing -if a peaceful picketing turns violent o runion members threaten management, then the strike becomes an illegal work stoppage and members engaged in that conduct are not protected under the NLRA 2. wildcat strikes -when individual union members or small groups of union members go on strike for short bursts of time without union authorization, this is called a wildcat strike -wildcat strikes are illegal, but sometimes the form of a wildcat strike can be subtle, as when several employees simultaneously use sick time to perpetrate a work stoppage or slowdown 3. sit-in strikes -any occupation of an employer's facility for the purpose of a work stoppage is illegal 4. strikings during a cooling-off period -the NRLA allows a federal court to enforce a strike prohibition for a period of 80 days if a strike threatens national public health or security -during this cool-off period, the government facilities negotiations between the parties, and any strike during that time is illegal 5. secondary boycotts -efforts to increase the pressure on an employer involved in collective bargaining by directing a strike against a third party (such as a supplier or customer of the employer) is illegal ex: Trade Union is striking against BigCo -TU does picket line in front of one of BigCo's main customers, SellerCo, with signs stating "Boycott SellerCo! They support unfair labor practices!" -constitutes secondary boycott and is a unfair labor practice

National Labor Relations Board (NLRB)

An independent federal agency created by the NLRA and charged with administering, implementing, and enforcing NLRA provisions, as well as monitoring union elections for fraud and setting guidelines for employers and unions in regard to fair labor practices

prima facie case

Establishing certain evidence that is sufficient to prevail in a discrimination claim without proving additional facts, unless disproved or rebutted by the opposing party.

pension

a retirement benefit in which the employer promises to pay a monthly sum to employees who retire from the company after a certain number of years of service -the amount is ordinarily based on the length of service and the employee's final salary rate

mixed motives

Under this theory, an employee is protected under Title VII in a case where legitimate motives are mixed with illegitimate motives if the employee proves the protected-class membership was a substantial factor in the decision-making process -once established, the burden then shifts to the employer to offer evidence that it would have made the same employment decision regardless of the protected characteristics -court also held that the employer's burden need only be proved by a preponderance of the evidence (more likely than not. A lower standard of proof as compared to "clear and convincing evidence.")

pretext

a false reason offered to justify an action

the national labor relations act (NLRA)

a federal law enacted in 1935 that provides general protections for the rights of workers to: -organize -engage in collective bargaining -use economic weapons (strikes) -and other forms of concerted activity in support of their demands (also known as Wagner Act) -covers all employers whose business activity involves some aspect of interstate commerce -coverage is practically universal -some workers specifically exempt by statute (railroad and airline employees) -to be eligible for protection, the worker must be a current employee (not an applicant or retiree)

Labor-Management Reporting and Disclosure Act

a federal law enacted in 1959 that established a system of reporting and checks intended to uncover and prevent fraud and corruption among union officials by regulating internal operating procedures and union matters -also known as Landrum-Griffin Act the law: 1. regulates internal operating procedures of a union -including election processes, procedures, and rights of members at membership and officer meetings 2. requires extensive financial disclosures by unions 3. gives the NLRB additional oversight jurisdiction for internal union governance

electronic communications privacy act (ECPA)

a federal law enacted in 1986 that extends legal protection against wiretapping and other forms of unauthorized interception and explicitly allows employers to monitor employee communications on company equipment as long as this is done in the ordinary course of business or the employee consents to the monitoring -restricts an employer from monitoring an employee's personal calls (even those from the workplace) without the employees consent -employers may monitor business calls but must disconnect the moment they recognize that a call is personal -employers are also restricted from accessing an employee's office voicemail without the employee's consent

Labor Management Relations Act

a federal law, enacted in 1947 as an amendment to the NLRA, that prohibits requiring employees to join or continue membership in a union as a condition of employment -also known as Taft-Hartley Act -amendment prohibited employers and employees from agreeing that union membership is required as a condition for employment -authorizes states to enact right-to-work laws, which make it illegal for employers to agree with unions that union membership be required for continuing employment -law also makes clear that employers had the right to voice their reasons for opposition to formation of a union -gave a specific authorization for the president of the US to suspend a strike for up to 80 days in times of national emergency

Age Discrimination in Employment Act (ADEA) of 1967

a federal statute that prohibits employers from discriminating against employees on the basis of their ages once employees have reached age 40 -employers that have 20 or more employees are prohibited from discriminating against employees on the basis of their age once employees have reached 40 -the protected employees are not entitled to special treatment but are included as members of a protected class when employers discriminate against them in favor of a substantially younger employee -acts to prohibit mandatory retirement policies -exceptions: high policy making decisions, feder law enforcement officers, pilors, air traffic controllers, firefighters

Americans with Disabilities Act (ADA) of 1990

a federal statute that seeks to eliminate discriminatory employment practices against disabled persons -requires that employers with 15 or more employees make reasonable accommodations for a disabled employee in the workplace as long as the accommodations do not cause the employer to suffer an undue hardship

Equal Employment Opportunity Commission (EEOC)

a five-member federal administrative agency that administers congressional mandates that ensure adequate protection for victims of discrimination; accepts and investigates worker complaints and, in certain cases, will sue on behalf of employees -members are appointed by the president with approval of the Senate -uses its rulemaking authority, investigatory powers, and enforcement action as necessary to administer the statutory mandates established by congress

overtime compensation

a higher rate of pay for the hours that nonexempt employees work in excess of 40 hours in one seven-day workweek -calculated at one and one-half times the employee's hourly base rate -all wage and hour laws under the FLSA assume a base unit of time of one week (40 hours) -hours must exceed 40 in a one-week period

public-policy exception

a narrowly applied common law rule that places the public welfare ahead of the rights of an employer -best thought of as a backstop provision for situations in which no specific statute is applicable, but the termination was inconsistent with the general public's well-being -absent a specific statutory protection, the threshold for relief using public policy justification is very high Examples that would work for the exception: 1. refusal to commit an illegal act -such as filing a false tax return 2. exercising a legal right -such as refusal to take a polygraph test 3. performing an important act -such as the prevention of a violent crime

vesting

an ERISA (employee retirement income security act) guideline stipulating that employees are entitled to their benefits from various employer-contributed benefit plans within a certain period of time, even if they no longer work for the employer

collective bargaining unit

an employee group that, on the basis of a mutuality of interests, is an appropriate unit for collective bargaining

whistleblower

an employee or agent who reports illegal misconduct or a statutory violation by his or her employer to the authorities -employers may not terminate an employee for making a report to the authorities (blowing the whistle) about the employer's conduct -each state follows its on whistleblowing statute, most commonly: -whistleblowers are protected when they report the violation of a law or standard by their employer to the authorities -most states require that the whistleblower must suffer an adverse employment action to be covered under the statute -therefore, prospective employees and job applicants are typically not covered (must be an employee)

at-will employee

an employee who is not a contractual employee -may be terminated at any time and for any reason except in cases where public policy is violated or the termination is illegally discriminatory or is prohibited by statutory of common law exceptions

contractual employee

an employee who works under an agreement that defines when the employee begins employment and when the employment ends -typically, provides that employers may terminate employee only for "good cause," such as violation of a workplace rule or commission of a criminal act in the course of his employment

implied contracts

an employment-at-will relationship may be converted to a contract relationship if the employer acted in a manner that would lead a reasonable person to believe that the employer intended to offer the employee protection from termination without cause

because Title VII includes gender as a protected class, federal law extends protection to employees who . . .

are being sexually harassed

children in family agriculture jobs and child actors . . .

are not subject to FLSA restrictions -but state statutes often require appropriate educational standards be met through the use of tutors and homeschooling

exempt employees

classification of employees who are not covered by FLSA protections -generally consists of employees whose responsibilities are primarily executive, administrative, or professional -the underlying concept behind the FLSA is to level the playing field for employees who are in an untenable bargaining position with employers -consistent with that concept, the law imputes a certain level of bargaining power for professional and management-level employees and, therefore, exempts them from FLSA protections -typically workers paid by the hour are not considered exempt

collective bargaining agreements (CBAs)

contracts give rights to nonmanagement employees as well -negotiated by a labor union on behalf of a group of employees -often provide protection by prescribing a process that must be used by the employer before terminating an employee

employment-at-will (doctrine)

deep-seated common law principle that employers have the right to terminate an employee with or without advance notice and with or without just cause, subject to certain exceptions

disparate impact claims under ADEA . . .

do not require proof of an intent to discriminate -rare -the ADEA authorizes that disparate impact claims but the employer's burden to show the reasonableness of the business practice at issue is minimal -employer does not have to meet the higher standard of proof required in Title VII (business necessity) -easier for employers to prevail in an ADEA disparate impact action than in a disparate impact action alleging (for ex.) race discrimination under the Title VII

disparate treatment may be proved through use of . . .

either direct or indirect evidence direct evidence evidence that proves a fact without any further interference or presumption ex: manager of WidgetCo stating to Prescott (woman) applying for position saying, "I think you are the most qualified applicant, but we prefer a man in that role because this job may involve night work and I would be concerned about a woman's safety" -WidgetCo treating Prescott differently based on a protected class-gender -overt and intentional discrimination does not have to be with discriminatory intent in order to trigger liability for the employer indirect evidence -mcDonnell Douglas standard (employers should also be aware of a federal appellate court ruling in which special efforts made by an employer to avoid a discrimination charge resulted in a Title VII violation - overrating AA woman's employee evaluation)

covered (nonexempt) employees

employees who are protected by the FLSA and other statutes

Separate and Independent Defense

employers may terminate employees who are whistleblowers if they can show that they terminated the employee for reasons that are ________ and ___________ of any whistleblowing

Portal-to-Portal Act

provides guidelines for what constitutes compensable work under the FLSA's wage and hour requirements unless the activity is integral and indispensable to their principal job, employees are not entitled to compensation for: 1. time spent by an employee traveling to and from the actual place of the employee's job 2. time spent by an employee on activities performed before or after the principal activities in a work day -courts have interpreted principal activity to include all activities that are an integral and indispensable part of the principal activity ex: court ruled that the time battery-plant employees spent showering and changing clothes becaused the chemicals in the plant are toxic to human beings was compensable

disparate impact

even when an employer is not motivated by discriminatory intent, Title VII prohibits an employer from using facially neutral practices (one that applies to all employees regardless of class membership) that has an unlawful adverse impact on members of a protected class the supreme court recognized that intent was not always a necessary element to prove discrimination and that certain evaluation techniques for employee selection, promotion, and assignment could be administered uniformly to all candidates yet still impact certain protected class members adversely -such as written tests, height and weight requirements, educational requirements, and oral candidate interviews -court ruled that some testing mechanisms operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability 1. the plaintiff must prove a prima facie case by showing that certain methods resulted in statistically significant differences that adversely impacted members of a protected class -to satisfy this requirement, the plaintiff frequently provides statistical data related to the testing measure -EEOC's Uniform Guidelines on Employee Selection Criteria defines adverse impact as occurring when members of a protected class are selected at a rate less than 80% of that of the highest-scoring group Ex: Prescott's mother is Cuban, he is considered Latino in the national-origin class under Title VII -prescott required to take a test for the acct position at WidgetCo -of all candidates, asians did best with 10/20 passing the test -only 3/20 latino candidates passed -bc the number of latino candidates who passed was less than 80% of the number who passed among the highest scoring group, asians, this would be important evidence in prescott's disparate impact claim of discrimination (3/10<80%) 2. once prima facie elements are established, the burden of proof then shifts to the employer to provide evidence that the challenged practice is job-related for the position in question and is a business necessity 3. However, even if the employer shows a valid business necessity, the plaintiff may still prevail if he proves that the employer refused to adopt an alternative practice that would satisfy the employer's interests without having the adverse impact

Whistleblower Protection Act of 1989

federal employees are protected from retaliation of whistleblowing by the ___________________ -also covers employees of companies that contract with the government to provide goods or services -ex: construction company building a federal highway

The NLRA requires that both parties engage in . . .

good faith negotiations -that is not a requirement that one side or the other concede a particular term -rather, the parties are obligated to demonstrate that they are engaged in moving toward an agreement

employment discrimination

has a broad-based definition encompassing workplace-related discrimination that includes: 1. the hiring process 2. the treatment of employees in terms of promotions and demotions, work schedules, working conditions, and assignments 3. disciplinary actions such as reprimands, suspensions, or termination

key employee

if an employee's salary range is in the top 10% of all salaries in the company, the FMLA classifies him as a _______ -although entitled to FMLA protections, employers have the right not to reinstate the employee if the reinstatement would cause a "substantial and grievous economic injury" -courts apply this exception narrowly -employers must comply with required notifications and procedures set out by the statute, including the duty to notify an employee who is taking the leave of her key-employee status and the limits of the FMLA protections

grievance

in labor law, a complaint filed with or by a union to challenge an employer's treatment of one or more union members -enforcement is initiated when an affected union member files an employee grievance -the union is given the exclusive authority to invoke the arbitration provisions of the agreement, and it conducts the proceedings before the arbitrator on behalf of the employee -arbitrator's decision is always subject to review by the courts that are applying federal standards related to fairness and good faith -courts give great deference to arbitrators and will only intervene in cases of fundamental unfairness in some procedural or substantive way -if the union chooses not to bring a grievance to arbitration, the individual union member is normally not authorized to pursue a lawsuit against the employer to enforce the contract provisions

Early 1900's growing labor movement

inspired by the increased political power of immigrant groups and a growing intolerance of the public for corporate abuses, forced the federal government to legislate federal protections for employees regarding: -working conditions -unionization -child labor laws Eventually worker protections related to: -wages and hours -injuries on the job -workplace safety -layoffs were added to the federal labor statutes -derived from the Industrial Revolution

Family and Medical Leave Act (FMLA)

medical leaves -requires that an employee returning from medical leave, whether taken to care for himself of immediate family member, be reinstated at the same rate of pay -administered by the Department of Labor and applies to employers that have 50 or more employees within 75 miles -to be eligible for benefits, employee must have worked at the company for at least 12 months and have worked 1,250 hours during the past 12 months Ex: employee needs to care for a newborn or newly adopted baby -serious health condition affects the employee or the employee's spouse, child, or parent -the serious health condition must require continued treatments by a health care provider and must be of such severity as to render the person unable to care for herself for 3 consecutive days -employee must give 30 days notice of his intent to take leave unless an emergency arises, which allows reduced notices -all conditions that are covered must be properly documented by a physician and are subject to periodic reevaluation at the employer's request

Employee Retirement Income Security Act (ERISA)

pensions and retirement funds subjects employers that establish retirement benefits to the requirements of ERISA laws and regulations, which primarily require employers to: 1. make certain disclosures related to investment risk 2. provide transparency to plan beneficiaries -the ERISA authorizes the Department of Labor to monitor pension and retirement savings plan administration

Americans with Disabilities Act considerations . . .

prohibits discrimination on the basis of a physical disability -if testing uncovers a former drug addiction (or current alcoholism), under certain circumstances the employee is protected from discipline or termination under the ADA -places restrictions on medical examinations and tests -employers may require a medical examination only after a job offer has been made -the job offer may be made contingent upon passing the medical test, so the test must be administered after all other hiring information is obtained and found satisfactory -(test all employees, can't target those with disabilities)

false claims act

protects employees who disclose that their firm has committed fraud in dealing with contracts with the federal government

both the federal Fair Labor Standards Act and the Sarbanes-Oxley Act (related to the regulation of corporations)

provides whistleblowers with specific statutory protections for reporting or testifying against their employer in an investigation, hearing, or trial

Social Security Act (of 1935)

retirement income provides a broad set of benefits for workers, including: -a retirement income from the federal government -funded by mandatory employment taxes paid into a trust fund by both employer and employee and administered by the federal government -these employment taxes are mandated by the Federal Insurance Contributions Act (FICA) -employees are entitled to retirement benefits based on how many credits they have earned during their work life -credits are accrued as a worker progresses through his career no matter how many different employers the worker has over a lifetime -also provides for payments to be made when a worker becomes disabled, and it provides survivor benefits for spouses and children upon the death of a worker

authorization cards

signed statements by employees indicating that they wish to unionize and/or are electing to be represented by an existing union -bargaining units may be recognized as employees of a single employer or those of an entire region or industry

protected classes

the classifications of individuals that are specified in Title VII, including color, race, national origin, religion, gender, and pregnancy -it is important to understand: not all discrimination is illegal -statutory protection is extended only to those who have been discriminated against based on their membership in a protected class for understanding employment discrimination statutes there's 2 important questions: 1. what the employee discriminated against? 2. was the employee discriminated against based on their membership in a protected class? ex: Prescott was discriminated against for wearing blue jeans -this discrimination is legal because it was not because we was. a member of a protected class (plaintiff doesn't need to be a minority within the protected classes in ordered to be covered by Title VII) -Title VII recently does cover sexual orientation claims

Title VII

the section of the Civil Rights Act of 1964 that serves as the centerpiece of antidiscrimination law -covers a comprehensive set of job-related transactions and prohibits discrimination in the workplace on the basis of an employee's race, color, national origin, gender, religion, or pregnancy -the law applies to any private sector employer with 15 or more full-time employees and to unions, employment agencies, state and local governments, and most of the federal government -the law covers a comprehensive set of job-related transactions including the hiring and firing, promotion and demotion, disciplinary actions, work schedule, pay rate, job assignment, and other employer actions

if the harassing employee is a supervisor . . .

then the employer is strictly liable for any sexual harassment claim is the harassment culminates in a tangible employment action -such as termination or transfer to a less desirable job if the harassment DOES NOT result in a tangible employment action (demotion): -employers may avoid liability via the Faragher/Ellerth defense by proving that a system was in place that was intended to deter, prevent, report, and correct any harassment -employer must also prove that the employee failed to take advantage of the preventative or corrective opportunities that the employer provided -issue in vicarious liability centers on the definition of a supervisor -alleged harasser is considered a supervisor if they have the power to hire, fire, demote, promote, transfer, or discipline the employee

disparate impact definition

theory of employment discrimination in which employee evaluation techniques that are not themselves discriminatory have a different and adverse impact on members of a protected class

sexual violations under Title VII

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are considered violations of Title VII if the conduct: 1. occurs in the context of explicit or implicit conditions of an individual's employment -or as a basis for any employment decisions 2. unreasonably interferes with an individual's work performance or creates an offensive work environment

poststrike rehiring

workers are cut off from any pay, medical benefits, or other compensation until the strike is over -employers have no legal obligation to rehire striking workers or provide retroactive pay in cases of a strike for economic reasons -although, as a practical matter, the rehiring of striking workers and partial or full retroactive pay are frequently guaranteed by the poststrike agreement, it's still a risk for some workers -if a strike is commenced due to unfair labor practice rather than economic reasons, the striking employees are entitled to immediate reinstatement with back pay once they unconditionally return to work -economic strikes typically arise from wages or benefit arguments

Workers' compensation statutes (state level)

workplace injuries -serves as a mandatory alternative to negligence lawsuits by offering compensation to an employee who suffers an accidental injury (in the course of employment) as the exclusive remedy for the injury -funded through employer-paid insurance policies -employees with job-related injuries or illnesses are paid based on a percentage of the employee's salary at the time of the occurrence -the most important aspect of the worker's compensation system is that the employee is generally paid regardless of any issues related to fault or negligence of the employee, the employer, or any third party -however, certain defenses to a worker's compensation claim my be asserted by the employer

Occupational Safety and Health Act (OSHA)

workplace safety -sets workplace rules and regulations, administered and enforced by the Occupational Safety and Health Administration (under the jurisdiction of the Department of Labor), to promote the safety of worker and prevent workplace injuries require: 1. setting national safety standards 2. mandating information disclosure and warnings of hazardous working areas and assignments 3. establishing record-keeping and reporting requirements 4. imposing a general duty upon employers to keep a workplace reasonably safe -has broad coverage encompassing virtually every private employer -federal, state, and local government units are exempt