Mgt 4523 Test 1

Section 105 of the FMLA and section 825.220 of the FMLA regulations prohibit the following employer actions:

Discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. Discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA

Executive Order 11246 Prohibits

Discrimination in employment - Original focus required contractors to remedy inadequate representation of women and minorities in the workplace - Enforced by the OFCCP - Office of Federal Contract Compliance Program - OFCCP now has broaden its focus to include individual cases of discrimination to ensure that individuals as well as classes are given a fair chance in the workplace - Only applies to federal contractors

Affirmative Action applies to

Federal contractors having 50 or more employees and contract is for $50,000 or more. - Federal Contractors who provide goods and services of $10,000 or more must simply agree to comply with the E.O. DOES NOT REQUIRE QUOTAS - Don't have to reach something to satisfy the OFCCP - Does not require that at all

intermittent leave

Is leave taken in separate blocks of time for a single illness or injury. A reduced leave schedule reduces an employee's usual number of working hours per workweek, or hours per workday. - this is something that can be taken with FMLA - Drives the employer crazy because there's more time the employee is gone (and the company might be really busy and need them)

Another Part of the quantitative snapshot

Is the contractor's job group analysis which combines job titles at the contractor's workplace that have similar content, wage rates, and opportunities. - Under a new OFCCP directive, potential compensation discrimination indicators are flagged when the difference in average pay between females and males or minorities and non-minorities is $2,000 or more, or at least two percent (2%).

E Verify

is a federal program that isn't 100% accurate 94-96% accurate. It helps the employer verify the information you have received on the I-9. State of Louisiana must use this program for all of your employees if you don't you can not be sanction. If you don't use it you will be fined, suspend your license or sanction someone. Federal law only allows you to use E-verify when you FIRST HIRE SOMEONE.

Affirmative Action SUmmary

is intentional inclusion of women, minorities, and others traditionally excluded in the workplace after demonstrated underrepresentation of these historically disadvantaged groups.

Recruitment of employees

- Advertisement -Word of mouth -Nepotism - if you do that too much that isn't illegal unless you are a public entity. Using federal or state funds to pay. Federal or state person cannot hire someone within there family. -Promoting from Within -Venue Recruiting -Walk-in Applicants -Neutral Solicitation -Resume Collection - These are all ways to recruit but HR's job is to make sure employers are trying to recruit from EVERYWHERE - Word of mouth might not be as relevant today but historically this was a great way to get applicants - Asking people usually of the same race before you had the 15 employees - But now with 15 employees you cant discriminate which makes it more difficult of word of mouth because you can't be looking for a certain race to hire etc. -Basically every type of recruiting has some risks and need to be careful not to discriminate when trying to recruit a certain type or really good employees with not having so many random applicants applying - Its important to be careful on HOW you recruit

Availability

- Based on the availability of women and minorities qualified for the particular job - Factors used to determine availability: - The percentage of minorities or women with requisite skills in the reasonable recruitment area - The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization

Special Situations in FMLA

- Current substance abuse treatment is covered - Spouses in same workplace do not each get 12 weeks for bonding or to care for a parent with a serious health condition

Second and third opinions

- Employers may request an independent medical examination - They may also request a third opinion - Employers pay for these options - Third opinion is binding and final

Louisiana Pregnancy Leave Law

- Employers who have more than 25 employees - Normal Pregnancy up to 6 weeks - Complications evidenced by a physician's statement up to 4 months - no minimum time you had to have worked

FLMA is

Job protected not necessarily paid leave. -Its up to the employer under every situation when an employee takes leave EXCEPT FMLA You can allow paid time but its up to the employer and if they do that then it has to be the same across the board to where every employee has that option -FMLA allows substitution of paid leave in certain circumstances

Independent Contractors: How to distinguish

Key factor to determine if it is this is the degree of the control from the employer to the employee. Looking to see if they are dependent or independent, what are the financial factors, relationship factors. What position of reliance dependent does the business have with this person.

E.O 13672 Prohibits

LGBT Discrimination on basis of sexual orientation or gender identity.

Whistle Blowing

cant terminate someone if that person knows that employer has violated a specific rule and wants to report it. If looks like retaliation can get in trouble.

Under the new FMLA regulations employers may

directly contact employees' doctors when employers wish to authenticate or clarify the FMLA medical certification forms that the doctors have filled out. Employers will no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee's doctor

A "serious injury or illness" is defined as

an illness or injury incurred in the line of duty that may render the service member medically unfit to perform the functions of the member's office, grade, rank or rating

Block Leave

A single period of leave taken once

Reverse Discrimination

A term used by those who feel they have been adversely impacted by the use of an affirmative action plan. - accounts for only about 3% of the charges filed with EEOC, contrary to the popular belief that abuses are widespread

E.O. 13658 Minimum wage

$10.10/hour Tipped employees - $4.90/hr

An Employee's prima facie case for FMLA protections, is that the employee must establish that:

(1) he was entitled for the FMLA's protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled."

Family and medical leave act of 1993 - whos eligible

- Every employee is eligible for FMLA If they have a "qualifying event" - However, there are exceptions - Not every employer should be required to give FMLA - If the employee is giving FMLA, they should notify the employer

Employers must maintain

- Group health benefits - Other benefits according to company policy - Employers may count FMLA leave against employees for attendance or bonuses as long as all types of leave are treated the same. - Premiums must continue to be paid and employees are entitled to new benefits - Change of benefit notices must be given to employees on FMLA leave - Benefits must pick up where they left off if employee stops them during leave

Other OFCCP areas of focus include an organization's employment of:

- Individuals with Disabilities - Veterans (Not to exclude anyone of age or anything else, this is just the main focus!)

transfer or reassignment - light duty

- Must be agreed upon by the employer and employee. - If a light duty schedule is agreed upon, such work time will not be counted against the employee's FMLA allowance. - Reinstatement or transfer to a true light duty position is not required not required but ADA may apply. - An employee must be able to perform the essential functions of his/her position or an equivalent position upon return from FMLA leave or when requesting intermittent leave or leave on a reduced leave schedule. - An employee has the absolute right to FMLA leave even if the employer offers the employee a light duty job. -When an employee realizes they are running out of their 12 weeks and they know they can't go to work on a full time basis still so they say ill still come back I might not be able to do full days but I will help yall out doing half days: - Employers do not have to allow this - You can if you want

FMLA Notice - Employers

- Must post a general notice of an employee's rights and responsibilities and the employer's FMLA policies. - Employers should notify employees of FMLA eligibility within 5 business days of the leave request. - Notice of ineligibility must also be given to employee with at least one reason why employee is ineligible.

Affirmative Action is not a quota

- Not a program that gives jobs to unqualified minorities or females

OFCCP New Rules

- OFCCP will release aggregate summary data on the race and gender pay gap by industry and EEO-1 category to encourage contractors to review their pay data using the same metrics as OFCCP and to take voluntary necessary measures to achieve full compliance. - Federal contractors having 100+ employees and a $50,000+ contract must report total number of employees, earnings, and total hours worked by sex, race, and ethnicity.

Examples of prohibited FMLA conduct include:

- Refusing to authorize FMLA leave for an eligible employee, - Discouraging an employee from using FMLA leave, - Manipulating an employee's work hours to avoid responsibilities under the FMLA, - Using an employee's request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or, - Counting FMLA leave under "no fault" attendance policy

Voluntary Affirmative Action

- The employer decides to institute an affirmative action plan regardless of the Executive Order, and despite no Title VII case being brought. - Proactive measures must be taken to avoid discrimination claims - Strict guidelines must be followed

Three ways affirmative actions arise:

- Through Executive Order 11246 (monitoring) - Judicially as a remedy for a finding of discrimination under Title VII - Voluntary affirmative action: a. Have to be more careful with this one (might go too far) b. People want to get through this if they are applying for federal contract and it may look good for them

Employees of federal contractors affected can seek remedies either:

- Through LA. Commission on Human Rights - TITLE VII - OFCCP - Office of Federal Contract Compliance Programs

ADA Considerations

- Under ADA, employers must make reasonable accommodations for employees with a disability, as long as that employee can perform the essential functions of the job . - Under ADA, employees do not have to meet eligibility criteria or have a qualifying reason to take leave. - FMLA have to have criteria, ADA you dont

ADA and FMLA intersect in two areas:

- When an employee exhausts his or her FMLA leave - When an employee wishes to take FMLA leave to care for an adult child - An employer does not have to grant a light duty schedule to an employee who is simply on FMLA, but a light duty schedule might be a reasonable accommodation under ADA. . Upon exhaustion of FMLA, under the ADA, the employee may request additional leave even after an employer informs her or him that their position may no longer be available (or that it would constitute an undue burden to keep it available). If this happens, the employer is obligated, as part of the reasonable accommodation process, to try to find a vacant position for the worker at an equivalent level or, if not available, at a lower level.

FMLA Notice - Employees

- When the need is foreseeable and notice is practicable, employees must give 30 days advance notice to employer. - Where leave is not foreseeable, employees should give notice "as soon as both possible and practicable (either the same day or the next business day" - Simply calling in "sick" without providing more information does not trigger an employer's FMLA responsibilities

To be eligible for FMLA benefits an employee must

- Work for a covered employer - Have worked for the employer for a total of 12 months (not necessarily the last day of hire) - Have worked at least 1250 hours during the previous 12 months - Worked at a location where at least 50 employees are employed by the employer within 75 miles (and not taking illegal ways or almost impossible ways - need to be on actual surface roads and the legal way in 75 miles) - Employer might say they didn't't work for 12 months so they aren't covered but its if they have worked 12 months (1250 hours) in the past 5 years so they actually can take FMLA leave -50 or more employees must work for an employer for each working day for 20 or more weeks in the current or preceding calendar year. -Part-time, seasonal, or temporary employees are included.

Employers may deny reinstatement when the employee:

- Would not have remained employed - Announces intent not to return - Has taken leave fraudulently - Has violated company policy - Is no longer qualified to perform the job - deny reinstatement to "key employees" *have to say they are a key employee* - may delay reinstatement until an employee provides a reinstatement until an employee provides a fitness-for-duty certificate

Reduced schedule leave

A leave schedule that reduces an employee's usual number of working hours per workweek or workday

Independent Contractor

A person who contracts with a principal to perform a task according their own methods and who is not under the principals control regarding the physical details of the work. If you are this you are out there trying to negotiate and sell yourself as an individual

Affirmative Action

- famous executive order in employment law (know what the executive order is but don't have to memorize the number" - Congress may not want to pass the law but the president might have his own agenda - Title VII might have been passed at this time but they still want to emphasize on the fact they must take affirmative action to the discrimination - doesn't mean "I swear..." You have to affirmatively SHOW you are not discriminating

OFCCP New Rules Amends the equal opportunity clause of executive order

-11246 that requires certain information be included in Federal contracts and subcontracts. -The amendment mandates inclusion of the requirement that Federal contractors and subcontractors refrain from discharging, or otherwise discriminating against, employees or applicants who talk about, discuss, or disclose their compensation or the compensation of other employees or applicants.

Top claims filed with the EEOC?

1) Retaliation - Title VII covers someone who makes a bogus claim and when someone makes a bogus claim the first thing an employer wants to do is fire them. (which is retaliation). The claim of discrimination fails but the retaliation allows you to be in the law suit still. This is based on almost all cases. Then they dont win the discrimination charge but they do win the retaliation charge. 2) Race 3) Gender 4) Disability - not apart of title VII 5) Age - not apart of title VII

Eligible employees may utilize FMLA for

1. For the birth and care of the new born child of the employee 2. For the placement with the employee of a son or daughter for adoption or foster care 3. To care for an immediate family member (spouse*, child, or parent) with a serious health condition. (EVERY STATE has to allow the same sex marriage to care for them in serious health conditions) 4. To take medial leave when the employee is unable to work because of a serious health condition 5.To take up to 12 weeks of FMLA leave "because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee" is on or has been called to active duty in the Armed Forces in support of a "contingency operation" (generally a war or similar combat operation.) *NATIONAL Defense authorization act*

If an employer's screening device reveals disparate impact relative to the criminal background check, the following 3 criteria must be met:

1. Nature and Gravity of the Offense or Conduct 2. Time That Has Passed Since the Offense, Conduct and/or Completion of the Sentence 3. Nature of the Job Held or Sought Ex: if you have on your record a felony from hurting an animal at age 17 and now you are 34 with your CPA license and you go to apply a job and they don't hire because of the one felony so long ago could be considered discrimination - If that's the ONLY reason you didn't hire them - If they are highly qualified and just because of something so long ago you won't hire - The business can get in trouble

Intermittent and Reduced Schedule Leave - when is it authorized?

1. When there is a MEDICAL NECESSITY (usually documented via a physician's certification). - Employee's own serious health condition. - To care for a covered family member with a serious health condition. - To care for a covered service-member with a serious injury or illness 2. After a birth or placement for adoption. - By agreement with employer 3. Qualifying exigency leave

Effective January 16, 2016, the U.S. Department of Labor's Office of Federal Contract Compliance Programs announced a Rule requiring covered federal contractors and subcontractors with more than

100 employees to submit an annual Equal Pay Report on employee compensation.

Scheduling of Intermittent Leave

29 CFR §825.203 In connection with a "planned medical treatment..." Employee must make a "planned medical treatment" to schedule leave so as not to unduly disrupt the employer's schedule.

Federal minimum wage

7.25

In December 2010, OFCCP rescinded its Active Case Management Directive, which had been adopted in 2008. In its place, OFCCP issued its new

Active Case Enforcement Directive ("ACE"). Under ACE, OFCCP will employ the following compliance evaluation methodologies: - Compliance review - Compliance check - Focused review, and - Offsite review of records

Definition of Affirmative action

Affirmative action involves the employer making an affirmative effort to bring qualified women or minorities (or others statutorily mandated) into the workplace in order to make it more reflective of the population from which the employees are drawn

Affirmative action Myths

Affirmative action requires employers to remove qualified whites and males from their jobs and give these jobs to minorities and women whether they are qualified or not. - Affirmative action prevents employers from hiring white males who are more qualified for the job. (Exception to bullet point #2: You can hire a white male who is more qualified for the job But what government doesn't want, is having candidates who are very closely qualified and only hiring a certain race They want you to diversify Wants everyone to have the opportunity to a good paying job) - Under affirmative action, all an employee must be is a female or a minority to be placed in a job. - Most employees who obtain jobs under affirmative action plans are unqualified for the job. - Workplace productivity and efficiency always suffer under affirmative action plans. - There should be no affirmative action because the best person is always the one who gets the job.

Employment at will

An employee is an at will employee. Employed solely at the will of the employer. Employer can fire an employee for any reason true or false and for no reason at all. There are 49 States that are employment at will states except Montana.

Right to work

An employer cant fire you because you are apart of a union or the fact that you refuse to join a union

Serious health condition is

An illness, injury, impairment, or physical or mental condition that involves either: 1. Inpatient care (Ex: overnight stay at hospital) 2. Outpatient care requiring continuing treatment by a healthcare provider and a period of incapacity due to a health condition lasting more than 3 days. 3. A chronic (asthma, diabetes) or permanent (Alzheimer's, a severe stroke, terminal cancer) health condition requiring intermittent care from a health care provider. (Health care provider - doesn't have to be doctor (can be chiropractor))

Vicarious Liability

The imposition of liability on one party for the wrongs of another. Liability may extend from an employee to the employer on this basis if the employee is acting within the scope of her or his employment at the time the liability arose

Placement Goals

Are designed to measure progress toward achieving equal employment opportunity and may not be either "rigid and inflexible quotas which must be met" or a ceiling or floor for employing certain groups.

if an employee has a situation where they will be off a little longer than 12 weeks then they

Are no longer covered under FMLA and that point are Employment-At-Will and they can be let go (even if they suggest they could use their vacation time) it just depends on how the employer wants to handle it but after the 12 weeks is over the employer has their rights and can make whatever decision they want at that point

Once the EEOC has failed mediation and they are going to look into this may not find discrimination but will always give you the Right to Sue Letter

Because they arent going to help anymore. - Take claim to court within 90 days - you have 90 days to go to court and if you don't then the claim is forever dead based on the statue of limitations. Anything else after would be considered a brand new case

Retaliatory Discharge

Broad term that encompasses terminations in response to an employee exercising rights provided by law. Most filed lawsuits/ Cant retaliate because they exercised their rights.

Exceptions to Employment at Will

Cant discriminate against someone. Cant be fired because they are in the military, or jury duty. Cant fire someone because of the way they vote or express their political positions. - If fire for no reason at all then the employee will get benefits to their account. (unemployment benefits) - If an employee has 3 garnishments over 2 years you can fire them. - document everything

Primary care giver

Can be a brother or sister (especially if both parents die) - Could be a neighbor (if there parents wont there and siblings didn't exist or didn't want to take care of them - This becomes a problem for HR if the boss says I don't have proof they took care of them, I don't care - in-laws arent covered under FMLA

Fair Pay and Safe Workplaces Executive Order

Companies with history of employee rights violations should not receive federal contracts - Disclose recent violations of various workplace laws being awarded federal contracts. - Provide wage notifications to employees and notify independent contractors of their non-employee status. - Refrain from requiring employees to sign pre-dispute arbitration agreements.

FMLA - Is it the employers choice or employee's choice?

Congress decided to pass the law of FMLA because they were getting constituents from employees who have worked for the company a long time and rarely take time off but had a major life event happened and needed time off (they felt like they have slaved for the company and they should do them a favor for an uncontrolled life event that they can't handle working too) - Congress decided the committed employees deserved time off for these rare and uncontrollable life events that sometimes need to come first - They felt the need to give employees job protection but it is unpaid

New OFCCP Directive Focuses on Employer Use of

Criminal Background Checks - "ban the box" - trying to stop the policy that if someone has convicted a felony you automatically reject them of a job (getting it out a job's policy) -Intended to prohibit discrimination based on race and national origin - If employer's screening device reveals disparate impact, 3 criteria must be met. (That's not to say its not okay to check their background because certain jobs like teacher, working at a casino, etc. is required by law)

Who does title VII apply to?

Employers who have 15 or more employees for 20 or more calendar weeks in the current or preceding calendar year. Does not have to be 20 or more consecutive weeks. Generally would be but if you are fluctuating it doesn't have to be consecutive.

Family and medical leave act of 1993 - Basics

FMLA allows eligible employees to take up to 12 weeks of job-protected leave within a 12 month period for certain family or medical reasons. - 26 weeks to provide care for covered service-members with covered conditions - 12 month period generally measured forward from the first date an employee takes FMLA leave. - Starting FMLA eligibility based on when the FMLA event occurred Ex: suppose an FMLA event happens on January 27th, 2016 that is the first day of their year (its unique to each employee) - Problem might be the rolling calendar

Intermittent Leave

FMLA leave taken in separate blocks of time due to single qualifying reason

Intermittent FMLA Recertification

For intermittent leave, employers may not seek recertification prior to the time specified on the medical certification unless - Circumstances described in the medical certification have significantly changed. - Information has been received that casts doubt upon the employee's stated reason for the absence.

Statutory Basis

Gives the foundation for this subject - of affirmative action

Warn Act

Have to warn the employees that they are going to be laid off. You are to warn the local government and employees that they are going to be laid off. - Have to give at least 60 days notice prior to you shutting down. If there is mass layoffs (reduction in the workforce not result in the plant closing. A mass employment lost during a 30 day period of 1/3rd of the employees, at least 50 employees) - for mass layoffs have to do 33% test and at least 50 employees or at least 500 employees at a single site of employment - Plant closings (permanent or temporary shutdown of a site of employment or one or more facilities or operating units at a site that results in a loss of 50 or more employees during any 30 day. There is no 33% test.)

Defenses to title VII cases - Legitimate nondiscriminatory reason

I.e. here is the real reason. Prove the reasons why you would be fire. Didn't terminate you because of race or gender but because you where consistently late etc.

People who can audit your company

IRS, US department of labor, Louisiana workforce commission

Section 706 (g) of Title VII of the Civil Rights Act of 1964

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, ... or any other equitable relief as the court deems appropriate.

Warn act - penalty if not done

If you don't give 60 days notice of being laid off. - Penalty can be equal to what they make ever day of the less then 60 days notice they should be giving them.

FMLA Recertification

In connection with a covered absence, even if a medical certification extends beyond six months, employers may nevertheless request a recertification every six months. 29 CFR §825.308(a)

IRS 20 Factor Test: Profit or loss

Indicates Employee Status: Cannot make a profit or loss Indicates Independent contractor status: can realize a profit or loss under the contract

IRS 20 Factor Test: Hiring / supervision

Indicates Employee Status: Company hires supervises and pays them Indicates Independent contractor status: worker hires supervises and pay helpers under a contract requiring him to provide materials and labor

IRS 20 Factor Test: Employment relationship

Indicates Employee Status: Continuing relationship Indicates Independent contractor status: relationship only exists until project is complete

IRS 20 Factor Test: Firing

Indicates Employee Status: Has the right to discharge Indicates Independent contractor status:may not be fired if work is produced according to contract specifications

IRS 20 Factor Test: Full time effort

Indicates Employee Status: Must devote full time effort to company Indicates Independent contractor status: worker determines when and whom he works for

IRS 20 Factor Test: Services Rendered

Indicates Employee Status: Must render the services personally Indicates Independent contractor status: need not render the services personally has helpers

IRS 20 Factor Test: Location

Indicates Employee Status: On site Indicates Independent contractor status: else where

IRS 20 Factor Test: Instructions

Indicates Employee Status: Subject to control of and must comply w/ companys specific instructions Indicates Independent contractor status: worker determines when where and how work is performed

IRS 20 Factor Test: Tools and materials

Indicates Employee Status: company provides Indicates Independent contractor status: worker provides

IRS 20 Factor Test: Expense reimbursement

Indicates Employee Status: company reimburses for business or traveling expenses Indicates Independent contractor status: pays own expenses

IRS 20 Factor Test: Work hours

Indicates Employee Status: company sets hours Indicates Independent contractor status: worker sets hours

IRS 20 Factor Test: Order/ sequence

Indicates Employee Status: company sets order or sequence Indicates Independent contractor status: worker follows his own pattern or schedule of work

IRS 20 Factor Test: Significant investment

Indicates Employee Status: doesnt invest in facilities and or equipment Indicates Independent contractor status: does invest

IRS 20 Factor Test: Service availability

Indicates Employee Status: doesnt regularly make services available to the general public Indicates Independent contractor status: generally makes them available to the general public

IRS 20 Factor Test: Quitting

Indicates Employee Status: each party has right to terminate Indicates Independent contractor status: may only terminate relationship upon completion of contract or breach of contract by other party

IRS 20 Factor Test: Integration

Indicates Employee Status: integral part of the overall business. Parallels work done by full time employees Indicates Independent contractor status: not integral to the success or continuation of the business

IRS 20 Factor Test: Reports

Indicates Employee Status: must submit regular reports Indicates Independent contractor status: reports not required

IRS 20 Factor Test: Employed by more than one firm

Indicates Employee Status: only allowed to provide to one company Indicates Independent contractor status: can provide to multiple at the same time

IRS 20 Factor Test: Payment method

Indicates Employee Status: paid hourly weekly or monthly Indicates Independent contractor status: paid by the job or straight commission

IRS 20 Factor Test: Training

Indicates Employee Status: required to undergo on the job training Indicates Independent contractor status: already highly skilled receives no training from company

Non- Compete Clauses

Means you cannot work wherever you want. If worked for apple they may make you sign a contract saying you cannot work for Microsoft. (if they describe the business with great specificity. Max the contract can apply is two years. The contract has to describe with great specificity the parishes they are working in (have to name the parishes specifically)) - must specify the business in which employee is not to compete

Employers may request a

Medical certification for a "serious medical condition" within 5 days of the employee's notice. Certification includes: - A statement of the need for time off - The starting date - The expected duration USDOL Form: - In most cases, employees must return form in 15 days - If certification is deficient, employee is given -- days to cure the deficiency. (Don't need a medical certification if you knew your employee was pregnant and she had to go give birth at the hospital. But you may need it for someone who says they are depressed and need to go to the doctor to get diagnosed )

Due to the HIPAA Privacy Rule permission

Must be given by the employee to contact their health care provider to obtain clarification of the medical certification. FMLA leave may be denied any employee who refuses to give permission.

HR professionals should contact the employee's health care provider. The employee's direct supervisor MAY

NOT DO SO

Employers must also provide employees with a

Notice of rights and responsibilities at the same time that the eligibility notice is given. - Must provide employees with a designation notice within 5 days that leave is to be FMLA or (due to insufficient information or a non-qualifying reason) leave will not be designated as FMLA. - Also inform employee if paid leave is required to be substituted for unpaid leave, or - If a fitness-for-duty certificate prior to restoration of employment will be needed

Constructive Discharge

Occurs when the employee is given no reasonable alternative but to end the employment relationship; considered an involuntary act on the part of the employee. Made you want to quit / made your life miserable.

To get the quantitative aspect of the plan, the employer must prepare an

Organizational Profile

Intermittent and reduced schedule leave

Permitted for serious health conditions Prohibited for bonding unless employer allows it Employee must make a "reasonable effort" to schedule leave so as not to unduly disrupt the employer's schedule.

Contractors must establish a

Placement Goal. - If the percentage of women and/or minorities employed in a job group is less than would reasonably be expected based on their availability in the area from which employees are drawn

Title VII of the Civil rights act of 1964

Prohibits discrimination in employment based on specified protected classes. Falls under this branch: - equal employment opportunity act of 1972 - pregnancy discrimination act of 1978 - Civil rights act of 1991 - 42 USC 1981

E.O. 11246 (Amended)

Prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. - Gender identity - internally what they feel (you might be looking at a male but their gender identity "is female, feels like a woman") - Sexual orientation - you may be a male and your identity is a male but your internal desire is to be with another male. (Same with female)

Family and medical leave act of 1993 - what does it do?

Provide employees job-protected and unpaid leave for qualified medical and family reasons.

Disparate Treatment

The individual is being targeted because of one of those reasons. Your TREATMENT is negative it is direct its targeted. When an individual is being targeted and the treatment is localized to that person only. Don't like you because you are a certain race religion gender etc. Can be shown in a way that it belongs to a certain group. Can be shown by: - By having a burden of proof (you file it, you prove it) - After the plaintiff presents their case, the defense can then say that certain elements were proven (defense doesn't have to prove anything they can just analyze if the plaintiff's proved their case since they filed it)

The FMLA prohibits an employer from interfering with

Restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act, and discharging or in any other way discriminating against any person for opposing or complaining about any unlawful practice under the Act.

An Employer is responsible for

SS Tax, unemployment taxes, medicare, state and federal taxes, workers comp. Minimum wage and over time. Also subject to Discrimination laws (many of these laws have a minimum threshold before they apply) usually it is 15

Defenses to title VII cases - Bonified occupational qualification

Something you have to be in order to get a specific job. Most of them not all are usually because of religion. To hire someone to be a minister or secretary to a bishop - you have a write to say you cant get a job because you aren't catholic. I.e. if you are going to be the dean of religious studies at Notre Dame (Baylor) you have to be catholic.

Serious health condition qualifiers

Subject to certain conditions, the continuing treatment may be met by a period of incapacity of more than 3 consecutive days combined... - with medical treatment including at least two in-person visits to a health care provider for treatment within a 30-day period, unless extenuating circumstances exist... - or one in person visit and a regimen of continuing treatment, incapacity due to a chronic condition, or incapacity due to a pregnancy. - Other medical conditions may also meet the definition of continuing treatment. - The in-person treatment must occur within 7 days of the first day of incapacity.

An eligible employee who is the "primary care giver" of a service member with a "serious injury or illness: incurred in the line of active duty may now

Take up to 26 weeks of FMLA leave in a single 12-month leave year to care for the service member. -If you've already taken some weeks of FMLA then if another event happens you don't have the full 26 you have whatever is remaining

E.O. 11246 (Amended) Made it clear

That contractors may not deny equal wages, benefits, or other forms of compensation, or equal access to earnings opportunities, on the basis of sex. - The Rules also ensures that contractors provide workplace accommodations, such as extra bathroom breaks and light-duty assignments, to employees affected by pregnancy, childbirth, and related medical conditions.

A workplace should reflect

The available workforce from which its employees are drawn. -If you are looking at a certain area that you might have no Asian Americans that doesn't really reflect the workforce in San Francisco (just an example)

Family and medical leave act of 1993 - purpose

The purpose is to balance the needs of a workplace and the needs of your family or serious issues that need to be taken care of - The employers make a profit and they need the employee to do the work for them in order to make the profit so many employers need their employees there but they also don't want to jeopardize their employees if they don't give them the balance - Which is where the purpose of FMLA comes in

For reinstatement employers must give qualified employees

The same or an equivalent position

Employment testing - post employment

These tests could be medical tests - can be medical test that perhaps in violation with American disability act. You hire the candidate and don't pay them anything and then do the things you have to do to see if they are really able to do what they need to do. If it turns out they cant do it based on there disability you can let them go if you cant give them a reasonable accommodation.

Employment testing - pre employment

These tests might seclude someone who has a disability (especially on medical tests) - Find the right candidate and actually hire them that's how you get them around - Not putting them to work first - might have a problem with disparate impact.

Affirmative action plans have both quantitative and qualitative aspects - Quantitative

This part of the plan examines the contractor's workplace to get a "snapshot", of sorts, of who works there and in what capacity, as relates to minorities and women.

Affirmative action plans have both quantitative and qualitative aspects - Qualitative

This part of the plan sets out a plan of action for how to address any under representation, or underutilization or other problems found.

E.O 13706 Providing Paid Sick Leave

Up to 56 hours/year 1 Hr. Sick Leave per 30 Hrs. of Work (you can carry over the leave from year to year)

80% or 4/5ths rule

Used to determine if the company's hiring practice is discriminatory. I.e 60% people that are hired is white. Then you have 45% Native American so 45/60 = 75% not 80. Could have issues. If it doesn't hit 4/5s do something different to recruit individuals so you don't hit that 4/5s rule. -determine the company's adverse impact on a minority group -Look at your highest group percentage and then compare the ratios -Divide highest group divided by each minority group and see if you reach 80% or 4/5ths -If its at that you are good, if not then you are discriminating

Johnson V. Transportation - case that deals with voluntary affirmative action

Voluntary Affirmative Action Plan accepted because it: 1. didn't unnecessarily trammel male employee rights or create an absolute bar to their advancement - Set aside no positions for women and expressly stated that its goals should not be constructed as quotas to be met - Unsettled no legitimate, firmly rooted expectation on the plantiff's part - Was only temporary in that it was for purposes of attaining, not maintaining a balanced work force, and - There was minimal intrusion into the legitimate expectations of other employees

Employment Environment - application and interview

Want to make sure that the application doesn't ask questions that there is no business necessity to ask. • Ask only questions for which there is a business need to know. - instead of asking date of birth you can say are you at least 18 years of age or at least 21 years of age. Don't want the opportunity to say I am being discriminated against because of my age. • Avoid curiosity and customary questions - don't want to do that - And when giving an interview be careful on HOW you ask the questions

Executive Order 11246

When awarded a Government contract, the contractor must agree not to... - "...discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship."

When anyone separates from a job

You give them a separation notice

Forum selection clause

a clause in a contract that identifies the state law that will apply to any disputes that arise under the contract

The job group analysis must include

a list of the job titles for each job group and the percentage of minorities and the percentage of women it employs in each job group. This is then compared to the availability of women and/or minorities for these job groups. - Availability is not based on the mere presence of women and minorities in a given geographic area. Rather, it is based on the availability of women and minorities qualified for the particular job.

Common law agency test

a test used to determine employee status though it considers several factors the most critical is whether the employer has the right or ability to control the work

Louisiana's Pregnancy Discrimination Law

have to have 25 employees. Before they can be afforded of protection. Have to give them a reasonable accommodation because of their pregnancy. Have to give the employee 6 weeks of job protected leave. If there are complications in the pregnancy stated by a physician then they have to give them up to 4 months of protected leave. Leave isn't required not necessarily paid leave just Job protected leave.

Equal Employment Opportunity Act of 1972

help establish the equal employment opportunity commission. The agency that enforces discrimination law.

Organizational Profile must

must shows staffing patterns within a workplace, much like an organizational chart, showing each of the organizational units, their relationship to one another, and the gender, race and ethnic composition of each unit. - The "organizational profile" is one method contractors use to determine whether barriers to equal employment opportunity exist in their organization. - The OFCCP endorses such affirmative action plans based on a business's functions rather than the business establishment.

FMLA "interference" includes

not only refusing to authorize leave, "but discouraging an employee from using such leave."

Reference Checking - Fair Credit Reporting Act

o Is something that every employer has to inform the employee about if they are going to perform a background check if they are going to hire a third party. If you are doing it yourself you don't have to inform them. You get there signature that you have informed them about and what there rights are. Have to give them the information to them of why they aren't getting the job. Giving the opportunity to go about and correct that but not required to keep the job open when they do that. - Also get their signature about the fact they were informed and their rights about it* - Not required to keep job open if there was a mistake in their background check and they need to get it fixed, you can move on with the recruiting process and fill the position - I-9 is a must when giving a background check

Reference Checking - Permitted/ Required

o Some employers will refuse to give a reference. You call the company and refuses to tell you. You cannot be sued unless the previous employer gives intentional wrong information. But not going to be successfully sued if you give information that is truthful relevant. - Some employers refuse to give a reference (you want to find out the employee from ABC company is a good employee and they call ABC to find out but they only know basics like their starting pay and when they started) - Without fear of liability, company's can give a reference about a past employee (just had a law pass) - But you can't knowingly lie about them and intentionally - You can say negative things as long as its truthful and relevant

Affirmative Action must be premised upon

one of several bases, but is usually as a result of a finding of discrimination, under representation or a manifest imbalance in the workplace.

On January 11, 2016, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) enacted a new rule to prohibit

pay secrecy policies and actions by covered Federal contractors and subcontractors. - The Rule requires an anti-discrimination policy to be included in the employee handbook as well as being physical or electronically posted.

A government contractor's plan containing

placement goals for inclusion of women and minorities in the workplace and timetables for accomplishing these goals. - Minority categories are: Black, Hispanic, Asian/Pacific Islanders, and American Indians/Alaskan Natives - Doesn't qualify in all of the country just depends on where you are.

Rather than an affirmative action plan imposed by E.O. 11246, an employee may

sue for violation of Title VII. The affirmative action arises in response to a court's finding of discrimination that must be remedied. - The court's remedy is judicial affirmative action.

Polygraph

that is generally prohibited to give someone a polygraph test. You can do it for security companies and you can do it if you're a private company if you have had a workplace theft and the employee you want to give a polygraph to had reasonable access to the missing property. Have to have a reasonable suspicion. - Employer was given written info for it

Disparate Impact

the company policy tends to become a problem for someone because of there religion race etc. I.e to be a police officer you have to be able to life 100 pounds - tends to have a disparate impact on women. When an employee wide policy has negative / greater impact to one or a few employees. - employer goes "what do you want me to do? I have a policy across the board that everyone has to comply with"

Defenses to title VII cases - Business Necessity

the industry requires that someone has certain qualification. Only good defense for a disparate impact claim. Not for disparate treatment.

Inevitable disclosure

the theory under which a court may prohibit a former employee from working for an employers competitor if the employer can show that it is inevitable that the former employee will disclose a trade secret by virtue of her or his position

Pregnancy Discrimination Act of 1978

title 7 was amended to include this. Cant discriminate against someone because of their pregnancy. Has a baseline have to have 15 employees. Cant use pregnancy, childbirth or related medical conditions as the basis for treating an employee differently than any other employee with a short term disability if that employee can perform the job.

Affirmative action plans may arise

voluntarily, as a remedy in a discrimination lawsuit, or as part of an employer's responsibilities as a contractor or subcontractor with the government

Employers should conduct

voluntary periodic equal employment opportunity audits to monitor their workforce for gender, minority, and other inclusion

For chronic conditions the employee

would have to see a physician for the condition at least twice a year

BFOQ Defense

• Available only for disparate treatment cases - Involving gender religion and national origin • Not available for cases - Involving race, color, disparate impact- CAN NEVER BE USED if someone files a race color or disparate impact.

Remedies under title VII

• Back pay • Front pay • Reinstatement • Seniority • Retroactive seniority • Injunctive relief - you can never do this or you will get fined and someone could be thrown in jail. When dealing with someone who is undocumented • Compensatory damages • Punitive damages • Attorney feeds • Medical costs

Filing Claims under Title VII

• Claimant or Charging Party - person is called the CP or plaintiff. Person filing the charge • File with LA. Commission On Human Rights (a 706 agency) within 300 days. 706 agency is where you file in the state before you go to the EEOC. If you go to the wrong place there going to give the state 60 days for the state to take action and if not the EEOC will. It has to be filed within the act of the discrimination, not when you find out. (300 days) • If no 706 agency file within 180 days - when no state office is available you have to file it with the EEOC in 180 days.

Who is not covered by title VII?

• Members of Communist Organizations - don't want to protect anyone who is a communist • Employers employing native Americans in or around native American reservations - on that reservation none of these laws apply of there reservation. Also going to give them the right to control themselves since they kicked them out of there original land to begin with. • Employees of religious institutions hired to perform work connected with carrying on religious activities. - religious institutions have the right to govern themselves based on there religion and there religion only. That person can be a minister and can be discriminated again.

Anti Retaliation Prohibition

• Protects individuals from retaliation that produces injury or harm • Covers employer actions that would have been materially adverse to a reasonable employee • No link to employment is needed - means that you probably where employed at one time or you no longer work there and you are applying to another job and you are hearing that you are getting negative information from them that isn't true. Causing you grief. Had to be harmful to the point where it would make a reasonable person have a difficult time getting a job (still an aspect of retaliation and title vii covers it)

Who is covered by title VII?

• Public and Private employees are protected • US employees working for American companies abroad - the laws in America protect you as an American citizen in another country. • Non-US citizens working in US - someone who is eligible to work in the united states because they have the proper documentation. If you are an undocumented individual working illegally in the US these are still covered but there relief is limited. These individuals cannot get back pay or reinstated. Must actually tell the court that in there initial response in the law suit. In your answer you have to specifically say they where an undocumented individual in the United State who provided false documentation. - You get that you still violated the law. You can make them say they violated the law to there company. (basically just embarrasses the company)

If title VII does apply to you then you cant discriminate on the basis of

• Race • Color - different from race • Gender • Religion • National Origin

If you are going to file with an EEOC they will send you an offer to Mediate with one of their mediators that are hired by the EEOC

• They have 10 days to respond to offer • In house mediation - 60 days to do something • External mediation - 45 days