MGT 462 - Final

2. Select the four major exceptions to "at will" employment under current American law (include exceptions even if they are not recognized in Alabama).

- A contract of employment. - Public policy-based exceptions such as refusing to engage in illegal conduct. - Statutory exceptions such as anti-discrimination and anti-retaliation laws. - The common law doctrine of promissory estoppel / implied contract.

2. Abraham is a male television producer at New Harmony TV, a very conservative Christian-based television channel based out of Argone, Mississippi. New Harmony TV is a for-profit company owned by a hedge fund. It has lots of television shows; it also hosts a weekly, made-for-TV religious experience complete with fireworks and a full pig BBQ. New Harmony TV boasts a staff of 250 employees, including Abraham. Abraham is one of New Harmony's hardest workers, logging over 3,000 hours of work time each year due to multiple late nights. One Tuesday morning, Abraham reveals to his boss that he got married over the weekend....to another man. He asks to take leave because, as it happens, his husband was involved in a terrible car wreck the afternoon of the wedding and has been laid up in the hospital with multiple broken bones and a punctured lung since Saturday. The doctor says the husband may be in the hospital another three or four weeks. The boss goes to the HR manager to see what to do? What advice should the HR manager give? Select the best answer.

- Abraham should be granted FMLA leave .

3. Select the three major tests used to determine an individual's status as either an employee or an independent contractor.

- Economic realities test. - IRS 20-factor test. - Control test.

2. Which of the following requirements must be met for a valid waiver of an employee's rights under the Age Discrimination in Employment Act pursuant to the Older Workers' Benefit Protection Act? Select all that apply.

- Employee must be provided a review period of 21 days to consider the waiver. - Employee must be provided with a 7 day revocation period after signing the waiver. - Employee must be advised to consult an attorney. - Employee must be provided with a thing of value in connection with the waiver.

Quiz 1: 1. Select the three main characteristics of "at will" employment under current American law.

- Employer may terminate for any reason or no reason. - There is no fixed period of employment. - Employee may resign for any reason or no reason

8. Please select all of the characteristics of a non-exempt worker under the FLSA. Select all that apply.

- Must be paid a minimum wage of at least $7.25 per hour. - Must be paid overtime for any hours over 40 within a 7-day workweek. - Overtime must be calculated at 1.5 times the regular hourly rate.

3. Which of the following are examples of potential reasonable accommodations under the Americans with Disabilities Act?

- Reassignment to a vacant position. - Allowing a comfort or service animal in the workplace. - Unpaid leave over and above FMLA leave. -Making existing facilities used by employees accessible to those with disabilities.

Disability Discrimination cont.

- The statute defines "disability" to mean with respect to an individual someone who (1) is disabled; (2) has a record of an impairment; or (3) is "regarded as" having an impairment." - Does not matter if the individual is ACTUALLY impaired, except of course only actually disabled individuals receive accommodations. Three Triggers: 1.Physical or mental impairment that substantially limits one or more major life activities. - Sometimes called "actual disability." 2.Record of a physical or mental impairment that substantially limited a major life activity. 3.Perceived impairment that is neither both transitory nor minor. - Regarded as having a disability. NOT disabilities: §Transvestism or transsexualism. §Pedophilia. §Exhibitionism or voyeurism. §Gender identity disorders not resulting from physical impairments. §Other sexual behavior disorders. §Compulsive gambling. §Kleptomania. §Pyromania. §Current illegal drug use. §Psychoactive substance abuse disorders resulting from current illegal drug use. "Substantially limited" does not require impairment to - §Prevent or severely restrict MLAs. §Last a certain amount of time. §Be continuous (may be episodic or in remission). §Be "uncorrectable." Otherwise Qualified: §Employee can perform essential functions of job. §Doesn't require employee to be able to perform tasks that have only marginal relationship with job. - Essential function of a job is one that, if removed, would fundamentally change nature of job. Reasonable accommodation: - Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. - Changes to - - Job application process that enable a qualified applicant with a disability to be considered for the job. - Work environment or to the way the job is customarily performed that enable a qualified individual with a disability to perform the job's essential functions. - Employment conditions so that disabled employee can enjoy benefits and privileges of employment equal to those of similarly situated employees without disabilities. Common accommodations: §Attendance. §Modification of work schedule. §Job restructuring. §Reassignment. §Telecommuting. See the Ford Motors case in the textbook. §Use of sick days and leaves of absence. §Light-duty jobs. §Making existing facilities used by employees readily accessible to and usable by individuals with disabilities. §Job restructuring. §Part-time or modified work schedules. §Reassignment to a vacant position that is equivalent in pay and status, or as close to equivalent as possible, if the employee is qualified for that position. §Acquisition or modification of equipment or devices. §Appropriate adjustment or modifications of examinations, training materials, or policies. §Providing qualified readers or interpreters. §Permitting the use of accrued paid leave. §Providing unpaid leave. §Modifying a workplace policy (including policies relating to no-fault attendance, internal transfers, and telecommuting). §Altering supervisory methods, such as the method of communicating assignments. §Providing equal access to information communicated in the workplace. §Providing equal opportunity to participate in employer-sponsored training. §Other similar accommodations. Undue hardship for Specific facility: §Overall financial resources of the facility. §Number of employees at the facility. §Effect of the accommodation on the facility's expenses and resources. §Composition, structure, and functions of the workforce at facility. §Geographic, administrative, or fiscal relationship of facility to main organization. §Effect of accommodation on operation of facility. It is the EMPLOYEE's job to request an accommodation. - If the employee never asks, the employer should never assume an accommodation is needed. This itself might evidence discrimination. It is the EMPLOYER's right to choose which accommodation to provide, so long as the one selected meets the test of reasonableness. - Sometimes hard for the employee to swallow. §Prohibited retaliation may include— •Continuing to ask the individual to provide more information. •Insisting that the employee be examined by another health care provider, except in limited circumstances. Genetic Information Nondiscrimination Act of 2008 (GINA): - employers with 15+ employees - Prevents discrimination in selling group insurance policies - Prohibits genetic testing of job applicants—or employees. - Analysis of human DNA, RNA, chromosomes, proteins, or metabolites. - Detection of genotypes, mutations, or chromosomal changes. - Law passed to prevent this because of fear of these being used, not because they were being used.

Quiz 4: 1. In order to be eligible to take leave under the Family Medical Leave Act, an employee must meet which of the following requirements (select all that apply).

- Work for an employer with 50 or more employees within a 75 mile radius of the worksite. - Have been employed with the employer for a total of at least 12 months. - Have performed at least 1,250 hours of service within the preceding 12 months.

Disability Discrimination

- Workers comp: 1. No-fault insurance for on-the-job injuries. •Not necessary to determine who caused accident. •If accident happens on the job, employee gets coverage. 2. "Damages" and relief are limited. •No punitive damages as in tort cases. •Does not necessarily permit unpaid leave. •Does nothing to actually require employers to hire and retain disabled workers. •Does not directly require accommodations for workers. - Rehabilitation Act: "disabled individual" means any otherwise qualified person who... (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment." - ADA Titles: •Title I covers employment in the public and private sectors. - 15+ employees - included an anti-discrimination principle that is essentially the same as that articulated in the Rehabilitation Act - an obligation to affirmatively accommodate disabled individuals where no undue hardship is caused to the employer, and where the accommodation is "reasonable." •Title II applies to governments (so-called "public entities"). •Title III applies to so-called "public accommodations," meaning businesses welcoming the public. •Title IV requires common carriers engaged in interstate commerce to establish communications systems for those with hearing and speech impairments. •Title V contains miscellaneous provisions, some excluding certain conditions from coverage, others prohibiting retaliation against those who engage in protected activity, and still others. - Statutory Language: 1. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment 2. The term "qualified individual" means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 3. "essential functions" of the position are determined by giving consideration to - The employer's judgment as to what functions of a job are essential - If an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job 4. The term "discriminate against a qualified individual on the basis of a disability" includes: - Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of their disability. - Using standards (qualification standards or otherwise) that have the effect of discriminating on the basis of a disability except where business necessity is shown. - Discriminating against employees on the basis of their known relationship or association with someone who is disabled. - Failing to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate an undue hardship. 5. "reasonable accommodation" may include - making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and - job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities 5. Medical examinations and inquiries: - Except for asking whether the applicant can perform job-related functions, a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. - A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if (a) all entering employees are subjected to the examination; (b) information regarding the medical condition or history is maintained in separate medical files; and (c) the results of the examination are only used in a permissible way.

8. How many employees must an employer have before it is covered by Title VII of the Civil Rights Act?

15

11. A disparate impact claim is one in which a facially-neutral employment practice has a disproportionate impact on individuals in a protected class, causing them to be discriminated against unfairly. Which of the following scenarios might be most likely to result in a successful disparate impact claim?

A paid parental leave policy giving the leave to primary caregivers only.

5. Ashley is a sales clerk employed by Ruby Jewelry. She rings up merchandise at a cash register. She is paid $10 per hour. This week, Ashley worked 50 hours. What is she entitled to be paid and why? Select the best answer.

Ashley is nonexempt, and must be paid her regular hourly rate for all hours worked, plus an additional half-time premium for all hours over 40 within a 7-day workweek. Ashley is due $10 per hour for all 50 hours, plus an additional $5 per hour for the hours over 40. Her total pay due is $550.

Age Discrimination:

Disparate treatment § Defense to DT: BFOQ under ADEA - must establish that the age limit is reasonably necessary for business · Race can NEVER be a BFOQ Disparate impact § Sometimes, a policy will have a > impact upon older workers even though the policy is written in a neutral manner § Defense to DI: Business necessity Amendment to age act: § Prohibits age discrim. in providing benefits to employees § Protects rights of older workers § Severance agreements § Valid waivers must: - Be written so that avg. employee can understand - Refer to ADEA rights and claims - Affect only rights arising before singing waiver, not that later acquired - Be backed by "consideration" (something of value) - Have to know that they can take it to an attorney - Have to be given 21 days to consider it / Within 7 days, can change their mind - Terms of severance offer must be in writing § Waiver must NOT - - Prohibit employee from filing a claim with EEOC - Prohibit employee from participating in any EEOC investigation - Prohibit EEOC from investigating or pursuing

6. What is the break time rule under the Fair Labor Standards Act?

Employees are not required to be given breaks. However, if they are given breaks, breaks of 20 minutes or less are always paid breaks, and breaks of 30 minutes or more do not have to be paid.

7. Compensatory time (or "comp time") is a permitted alternative to overtime for private sector workers. True or false?

False

Quiz 3: 1. Which of the following is NOT permitted under the Age Discrimination in Employment Act? Select only one.

Favoring younger workers over older ones.

Labor Law cont.

NLRA Unfair labor practices: § Consider it an unfair labor practice to— - Interfere with, restrain, or coerce employees in the exercise of their rights. - Interfere with the formation of a labor organization. - Discriminate in hiring or tenure of employment or discourage membership in a labor organization. - Retaliate for filing charges or testifying under the act. - Refuse to bargain with the representatives of the employees. Concerted activity: § Section 7 of the NLRA guarantees employees right to engage in concerted activities for "mutual aid or protection." § Includes union organizing, the discussion of unionization among employees, and the attempt by one employee to solicit union support from another employee. § With some exceptions for public sector, agricultural/domestic workers, and airlines/railroads, the NLRA applies to ALL employers, NOT just unionized employers. § Covers activity by a single employee, even if not a member of a union. § Examples of employee rights include: • Forming, or attempting to form, a union in your workplace; • Joining a union whether the union is recognized by your employer or not; • Assisting a union in organizing your fellow employees; • Refusing to do any or all of these things. To be fairly represented by a union § A few examples of protected concerted activities are: • Two or more employees addressing their employer about improving their pay. • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other. • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions. Social Media: - NLRA protects the rights of employees to act together to address conditions at work, with or w/out a union - NLRB's position has been that employer social media policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees - An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. - Harassing conduct such as threats of violence would not be protected - that an employee policy prohibiting employees from "publicly criticizing the Company, its management or its employees" is in violation of Section 7 of the NLRA - confidentiality language in its disciplinary notices to employees that prohibited employees from discussing discipline with co-workers and clients is unlawful - rules or provisions which prohibit employees from discussing wages are unlawful - §NLRB would still permit certain confidentiality policies perhaps even impacting salaries if there was a really good reason (protection from competitors, etc.) Taft-Hartley Act: - Amendment to the NLRA enacted to curb perceived excesses by unions. - Requires secret-ballot elections for union creation ("card check" procedures were previously used). - Exempted most supervisors from coverage by the NLRA (though supervisors are still protected to the extent they refuse to violate the NLRA). - Exempted independent contractors. - Prohibited unions from refusing to bargain with an employer. - Prohibited unions from engaging in secondary boycotts (boycott against a company because it does business with another company engaged in a labor dispute). - Permits states to enact "right to work" laws under which unions and management are prohibited from requiring union membership Right-to-work (RTW) states: - states can elect to be a right-to-work state or a "wunion" state - means employees cannot be required to be in a union to be employed - 27 out of 50 states (including AL) Union Shop: - New employees don't have to be a member of union to be hired, but are given 30 days in which to become member. - After 30 days, new employees will have their union dues collected from their paychecks. - They have no choice in the matter. Agency Shops: - Union acts as agent for all employees regardless of their union membership. - But nonunion members must pay union dues because any collective bargaining agreement is presumed to benefit nonunion members. Union Mem. Bill of Rights: - Right to attend union meetings, vote on union business, and nominate candidates for union. - Right to bring an agency or court action against the union after exhausting union procedures. - Certain procedures must be followed before any dues or initiation fee increases. - Except for the failure to pay dues, members must have a full and fair hearing when being disciplined by the union. Labor Relations in public sector: § Federal employees: - Federal restrictions prevent federal unions from conducting direct bargaining over wages and benefits and from striking. - Civil Service Reform Act of 1978 established the Federal Labor Relations Authority (FLRA) to administer federal labor laws. § State, county, and municipal public employees are divided into three major categories: - Professional associations. - Craft unions. - Industrial-type unions. § Largest professional employee organization is the National Education Association (NEA). § Major difference between public and private collective bargaining: - Federal legislation and most state statutes do not contain the right of public employees to strike. Management Tips: - If employees consider unionizing, do not try to negatively influence the decision in impermissible ways. - Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidential. - Know the kinds of things the employer can legally do to influence the unionizing decision. - Do only permissible things. - Once the union is in place, conduct all negotiations only with the union representatives. - Treat the collective bargaining process as one would any business activity. - Know what the law requires employers to do and not do. §Keep the lines of communication open. - Stay away from a us-versus-them mentality. - Play hardball without setting management up for an unfair labor practice charge.

7. Which of the following is NOT a protected characteristic under the federal anti-discrimination laws?

Parental status.

6. To win a claim of employment discrimination, an employee must carry the burden of proving her allegations by what degree of proof?

Preponderance of the evidence.

9. Please select the answer that lists the three steps in the McDonnell Douglas burden-shifting paradigm for disparate treatment discrimination claims involving circumstantial evidence.

Prima facie case, legitimate nondiscriminatory reason, pretext

10. In response to an employer's assertion of a legitimate, nondiscriminatory reason, an employee must establish "pretext." Which of the following, standing alone, would suffice to show pretext?

Proof that the employer's reason is a lie.

4. Sally is a full-time UAH student whose parents pay for most of her living expenses. Still, to have some extra cash, she delivers pizzas for Dominoes in her free time. She pretty much picks her shifts, but she does have to select from available shifts posted by Dominoes. She drives her own vehicle to deliver pizzas. She has to wear a Dominoes uniform, has to use an electronic device provided by Dominoes to collect payments, and gets some very basic training on being nice to customers. Drivers do not have any particular rules to follow when driving, but there is a company policy that pizzas be delivered within 30 minutes of the order, and drivers are informed that they must meet this time-limit. Dominoes has a manager who assigns which drivers get which deliveries. Drivers are reimbursed for their mileage and get to keep tips, but otherwise get no wages. Dominoes says the drivers are independent contractors, not employees. Sally wants to know if she is misclassified under the "economic reality test." She wants to know if she is actually an employee. What's the best answer?

Sally is likely misclassified as an independent contractor (meaning she is an employee) because she has no other customers other than Dominoes' customers and is economically dependent upon Dominoes for them; she delivers a product that is not her own; and the work she is performing for Dominoes is integral to Dominoes' business.

3. The workforce of Yulantra Energy is unionized. The union leaders discover that Yulantra Energy's nuclear power reactors leak an extremely dangerous amount of radiation - far above the levels established as safe for workers by the Nuclear Regulatory Commission. After failed negotiation with Yulantra, the union leaders decide to implement a strike. Workers strike for four weeks, during which time Yulantra brings in replacement workers, who cross the picket line and keep the plant operating, despite striking union workers attempting to block their paths and yelling threats at them. Finally, after four weeks, Yulantra (under pressure from the Nuclear Regulatory Commission) gives in and makes a deal with the union to end the strike and install protective encapsulation to prevent further radiation leaks and to bring the radiation levels to within federally-mandated standards. However, when the union workers who walked the picket line try to re-enter the plant, Yulantra managers refuse. The union workers file a grievance with the National Labor Relations Board. What is likely to happen? Select the best answer.

The NLRB will side with Yulantra because the striking union workers engaged in serious misconduct on the picket line, and therefore forfeited their right to reinstatement, even though they were otherwise entitled to be reinstated as unfair labor practice strikers.

3. You end up quitting your job at Hooter's; it's just too stressful. Now you find yourself as the office manager at a small painting company. The company has just four employees, one of whom is you. The rest of the seven people who do work for the company are all classified as independent contractors. One day, a qualified African American painter asks to be considered for a contractor position. You check with the boss, who tells you "not no but hell no - tell him the job isn't open to blacks." After you gather your jaw up off the floor, you start to wonder how this is all going to shake out when you tell the applicant what the boss said. What is the most likely scenario?

The applicant will likely prevail in a race discrimination claim under 42 U.S.C. 1981. Section 1981 prohibits race discrimination by all manner of employers, even race discrimination affecting contractors rather than employees.

4. During a strike, a unionized worker for Yulantra Energy posts a Facebook status update that criticizes Yulantra for its unsafe practices and disregard for the rights and health of workers. The Yulantra manager for whom the employee works calls the worker and terminates her on the spot, citing a company policy prohibiting employees from "publicly criticizing the Company, its management or its employees." The employee is upset and files a charge with the National Labor Relations Board. What is most likely to occur?

The company will have to reinstate the worker, because a policy of this type violates Section 7 of the National Labor Relations Act. Under that Section, employees are permitted to engage in concerted activity for their mutual aid or protection.

4. You have now quit both your Hooter's job and the paint company. Time for an HR role where you are less likely to get sued. You apply to work at a law firm as an HR consultant whose services can be contracted out to firm clients who need advice. During the interview, mention to the hiring partner that you are pregnant. He tells you that is no problem, as the firm has a separate "mommy track" for young women just like you. The hours are more flexible and the pay is close to the same, but slightly less. He doesn't really give you a choice between this "mommy track" and any other track, and in any event, you need whatever job you can find. Two years later, you realize that men hired in your same position who were not assigned to the "mommy track" are making a good bit more than you. In fairness, you realize they are putting in more hours than you, but both you and the men are salaried, so the wage differential isn't just a mathematical product of hours worked. Moreover, you've worked from home plenty and not tracked the hours. You think your work product is as good as his and your clients like you. You decide to file an EEOC charge alleging pay discrimination in violation of Title VII of the Civil Rights Act. What does the EEOC investigator likely tell you?

The hiring manager's initial decision to place you on the "mommy track" was sex discrimination because it was based upon a stereotypical assumption about your likely role as a new mother, and each paycheck you have received since constitutes a new act of discrimination, meaning under the Lilly Ledbetter Act, you can recover back wages.

5. Freedom Enterprises desires to roll out a new job application, and they ask you as the HR Manager to evaluate any issues. One question you come across asks applicants to list any relevant family medical history. Managers explain that they need this information because there has been a serious problem with new employees leaving the job after a few years due to medical problems that did not manifest until after the date of hire, making it very difficult to keep relevant jobs filled. What is your advice?

These sorts of questions are unlawful under the Genetic Information Nondiscrimination Act.

Disability Discrimination cont.

Title 1 of ADA: §Applies to public entities in their capacity as "employers." §The ADA imposes upon employers the duty to provide reasonable accommodations for known disabilities unless doing so would result in undue hardship to the employer. §Does not explicitly address "service dog" vs. "comfort dog" distinction, but does posit that a dog could be a reasonable accommodation (29 C.F.R. § 1630 App.). §EEOC guidance suggests employee may need ADA leave to train a service animal. §EEOC has taken position that even emotional support animals might be a reasonable accommodation in a proper scenario. Title 2 of ADA: §Applies to public entities in their capacities as public venues. §Federal regulations specifically state that disabled citizens have a right to bring service animals (including dogs and even miniature horses) into public venues, but do not permit emotional support or "comfort" animals. §Regulations severely limit questions that can be asked by officials. Service animals: - typically dogs but can also be miniature horses - can ask: 1. Is the animal is required because of a disability? 2. What work or tasks has the animal has been trained to perform? - CANNOT: 1. ask for documentation 2. require service dog vest

5. A motion for summary judgment is used to accomplish what during a lawsuit?

To request that the court throw out the lawsuit before it reaches a jury.

2. You are still the HR Director at Hooter's Restaurant. The manager comes back to you and explains that two well-qualified gay men have applied to be waitresses. He tells you that he knows Hooter's will not permit him to hire males for a server position, but he also believes this is illegal. He further relates that he is sick and tired of breaking the law to help out prejudiced owners he does not support. You believe this is a protected complaint by the manager. In other words, you believe he is complaining in good faith about what he believes to be sex discrimination. But you also have to do something about the applicants. What is the best way to resolve the situation?

Treat the manager's complaint about Hooter's policy as protected activity. Contact higher management to investigate the complaint. In the meantime, alert a higher-up manager to the situation and ask for guidance on what to do with the applicants.

4. An individual who is incorrectly regarded as having a disability is protected from discrimination under the ADA even if the employee is not actually disabled.

True

Family and Medical Leave Act

Unpaid leave: - allows for up to 12 weeks

Fair Labor Standards Act

Wage & Hour laws: - Minimum wages. - Standard workweek (do not get confused - FLSA does not set maximum hours rules) - Overtime compensation - Child labor - Equal pay - Payroll requirements - Recordkeeping FLSA - Administered by the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL). - Authorizes "collective actions." -If an employer violates the statute, requires payment of— - Back pay for 2 years, or 3 years if the employer's violation was willful. - Liquidated damages unless the employer can show it acted in good faith. - Prevailing plaintiffs have a statutory right to attorneys' fees and costs. State & local laws - Administered by state or local departments of labor (or an equivalent). - Preempt the FLSA if they provide greater employee rights or protections (such as a higher minimum wage). - May authorize class actions. - Often fill gaps not covered by the FLSA, such as— - Requirements for meal and break periods. - Days of rest. - Premium pay for work on weekends and holidays. - Pay stubs. -But not in Alabama. Workers - not covered by FLSA - independent contractors - volunteers - interns - trainees Exempt vs Non-exempt: -To be classified as exempt from FLSA minimum wage and overtime requirements, employee's job duties and compensation must satisfy both - salary basis test - duties test Non-exempt: - Must be paid minimum wage of at least $7.25 an hour. - Must be paid overtime for any hours over 40. - Overtime calculated at 1.5 time regular pay rate. - Blue collar workers, such as production line, janitorial, construction employees. - "Pink collar" workers such as licensed practical nurses (LPNs), wait staff, filing clerks. - First responders, such as police officers, fire fighters, EMTs. - Anyone engaged in manual labor. Exempt: - Don't have to be paid minimum wage. - Don't have to be paid overtime— - Provided certain requirements are met. - Executive employees. - Administrative employees. - Professional (learned and creative) employees. - Highly compensated employees (HCEs). - Computer professionals. - Outside sales employees. - Commissioned retail sales employees (overtime pay only exemption). Salary basis test: - satisfies a minimum threshold (@ least $684 a week) - is paid on a "salary or fee basis" January 1st - the minimum threshold changes: - the standard salary level is raised - Current threshold has been at $455 a week to since the 1970s. - Threshold has been raised to $684 a week - Expressed differently, the increase is from $23,660 a year to $35,568 a year. Duties test: §The duties test typically— - Refers to an employee's "primary duty." - Differs for each exemption. §An employee's primary duty is generally— - Their principal, main, major, or most important duty. - Based on all the facts, with a major emphasis on the employee's job as a whole. - Not decided by job titles or descriptions. - Not decided by the amount of time an employee spends performing certain work, though time can be a useful guide. Compensable time: - all activities that occur b/t the beginning and end of a workday - beginning/ending can be more complicated than clocking in/out - If preliminary or postliminary activities are sufficiently related (integral and indispensable) to the employee's principal activities, they may be compensable - de minimis time Commonly litigated issues: §Donning and doffing (time spent putting on and taking off clothing, safety equipment, and work-related gear). §Pre-shift activities (cleaning knives, booting up a computer). §Travel time to and from work and travel for work. §Walking time (from locker to time clock, from time clock to front door). §Waiting or on-call time. §Training, onboarding, and seminars. §Testing. §Volunteer work. §Security or bag checks. Overtime = 1.5 x regular rate of pay - regular rate of pay EXCLUDES: §Gifts. §Pay for occasional periods of no work, such as paid vacation and sick leave. §Reimbursements for work-related expenses. §Discretionary bonuses. §Benefit plan contributions and payments to certain profit-sharing plans. §Certain premium payments. §Certain stock-related income. §Talent fees. - averaging hours over 2 or more weeks is NOT permitted Compensatory time (comp time): § Allowing an employee to take off time equal to the overtime he or she has worked. § Possibility with Federal employees. § Generally unlawful with private-sector employees. § FLSA doesn't recognize comp time, as in— - Employee works 40 hours of overtime during 2 weeks in January. - Gets to take an extra week of paid vacation in July. § Employee must be paid for the overtime for each of 2 weeks in January. § Of course, employer can reward the employee with extra vacation during July if it wants to. - FLEX Time is permitted for all employees w/in a 7 day workweek - Employee works 2 hours extra on Monday - Can leave 2 hours early on Friday afternoon to avoid overtime pay - Employee has still put in a 40-hour week. - But if employee works 42 hours during a week, employee must be paid for 2 hours of overtime at the premium rate. Break time: - FLSA does NOT require breaks for employees - breaks of <20 min are PAID - breaks of >30 min are unpaid Supervisor Responsibilities: § Documents (missed punches, hours worked, posters). § No off-the-clock work (do not request it, do not allow it). § Overtime (even unauthorized overtime work must be paid). § Meal periods and rest breaks (unpaid meal periods generally should be entirely free of work, some states require meal periods and rest breaks of a certain length or at a certain time during a shift). § The importance of enforcing policies and training employees. State & local wage and hour laws can either: §Overlap with the FLSA (minimum wage, child labor). §Fill gaps the FLSA does not cover (meal periods and rest breaks, paid sick leave, pay stub requirements). §Where state or local laws overlap with the FLSA and provide greater employee rights and protections, the state or local law will control. §Employers and supervisors must be familiar with the state and local wage and hour laws applicable to their workplace. Alabama does NOT require: §Minimum wage higher than Federal minimum wage. §Meal periods. §Rest breaks. §Paid sick leave. §Pay stubs. Alabama DOES have laws that: §Outlaw child labor. §Prohibit a municipality from creating a city ordinance that requires a higher minimum wage than Federal minimum wage. - This is currently being litigated before the U.S. 11th Circuit Court of Appeals. For employees, Employers must: §Withhold income taxes on the employee's wages. §Withhold Social Security taxes (FICA). §Withhold Medicare taxes. §Transfer the withholding to the IRS. §Pay unemployment compensation taxes (FUTA), §Pay the employer's share of Social Security and Medicare taxes. For independent contractors, Employers must: §Withhold income tax, Social Security tax, or Medicare tax. §Pay the employer's share of the Social Security and Medicare taxes. §Employee has to pay these.

Quiz 2: 1. Hooter's Restaurant is hiring and onboarding new waitresses. You are the HR director. A manager complains to you that one of the new hires who "looks foreign" but states that she is authorized to work in the United States has presented certain documents to establish identity and work authorization that are unusual. You examine the documents yourself and verify through comparison that these are lawful documents that satisfy the Form I-9 requirements. However, the manager continues to complain, stating that he has always required a Green Card, and this employee should be made to use a Green Card as well. He overrides your advice and fires the employee on the spot. If the employee sues alleging an abusive document practices under the immigration laws, is she likely to prevail?

Yes, she will likely prevail. An employer cannot require specific documents from an employee where the documents presented satisfy I-9 requirements and reasonably appear to be genuine and to relate to the person.

5. After you file your EEOC charge against the law firm where you were assigned to the "mommy track," the hiring partner comes into your office and confronts you. He doesn't understand why you would do this to someone who was just "trying to help." He says that he wants to prove to you that he has always been your number one fan. He asks you to eat dinner with him that night. Reluctantly, you agree. He gets really drunk at dinner and ends up asking you to kiss him goodnight, in blatant violation of the firm's well-disseminated anti-harassment policy on which both of you have been trained. When you tell him no, he gives you one more chance and warns you that your job depends on it. When you again refuse, he fires you on the spot. You go back to the EEOC to add this to your charge of discrimination. Do you prevail on your new sexual harassment claim?

Yes. This is quid pro quo harassment by a supervisor followed by tangible employment action (i.e., a termination). There are no defenses to this sort of harassment; because of the tangible employment action that followed the harassment, the law firm is strictly liable for its supervisor's actions.

Possible Essay Q: 1. How you accommodate someone 2. What's reasonable?

§ ADA gives 3 possible ways to have a disability: 1. Disabled - substantial impairment of a major life activity 2. Has a record of an impairment 3. Is "regarded as" having an impairment - Mitigating measures do not affect disability (a person in a wheelchair is still a paraplegic) o Glasses - exception to mitigating measure LET THE EMPLOYEE COME TO YOU to ask for accommodation - DON'T assume § Key terms: · Discriminate · Disability · Major life activity · Substantially limited · Qualified individual - o Someone is qualified when they can perform essential functions of the job ** o Prima facie case - burden shifts to employer - burden shifts back to employee to prove employer was lying - 1st thing is to prove that person is qualified for the job · Essential functions of job · Reasonable accommodation - o Common ones: - Attendance - Modification of work schedule - Job restructuring - Reassignment - Telecommuting - Use of sick days and leaves of absence - Light-duty jobs · Undue hardship - o Employees accommodation is so expensive or difficult that it shouldn't be required

Labor Law

§ Collective bargaining: Negotiations and agreements between management and labor about wages, hours, and other terms and conditions of employment. - The weekend - The 40-hour workweek - The minimum wage - Overtime - Worker safety laws - The end of child labor - Worker's compensation schemes - Widespread employer-based health insurance - The Family Medical Leave Act - National Labor Relations Act (sometimes called the Wagner Act) - guaranteed certain private sector employees the right to organize into trade unions and to take concerted action such as striking - Taft-Hartley Act - Congress limited union authority - Norris-LaGuardia Act § First major labor law statute enacted in U.S. § Government recognized that job is more important to worker than worker is to employer. § Endorsed collective bargaining as a matter of public policy. § Did not give labor unions any new legal rights. - Allowed them more freedom to operate free from court control and interference. § Allows a union to act in defense of a person prosecuted for his or her actions, or to sue on the worker's behalf under the worker's contract. § Protected any "labor dispute" even though parties did not have employer-employee relationship. § Declared that yellow-dog contracts prohibiting union membership were inconsistent with U.S. public policy and not enforceable in any court in the United States. - NLRA: § Established the right of employees to form unions, to bargain collectively, and to engage in concerted activity including the right to strike. § Placed the administration of the act in the hands of the National Labor Relations Board (NLRB). § Set up standards to govern the exercise of power delegated to NLRB. § Provided for the judicial enforcement of NLRB orders. § NLRA is the primary union law in America today. It is enforced by the NLRB and the courts. - Collective bargaining agreements: § Term for the contract that is reached between the employer and the union about workplace issues. - NLRA permits certain strikes by employees as a legitimate bargaining approach that leverages economic and public pressure. Also permits: § Picketing: Union members carrying signs in front of the employer's business that tell of an unfair labor practice or strike. However, picketing to stop an employer from doing business with ANOTHER employer who is the target of a labor dispute would be illegal. § Wildcat strike: Not sanctioned by union. § No-strike, no-lockout clause: Labor and management agree that labor will not strike and management will not stage a lockout. § The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. § Certain types of strikes are unlawful. - One example would be a strike to make an employer stop doing business with another employer that is the target of a labor dispute with its employees. § Employees who strike for a lawful object fall into two classes "economic strikers" and "unfair labor practice strikers." - Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs. Economic Strikers: § If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. § Economic strikers retain their status as employees and cannot be discharged, but they can be replaced by their employer. - If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. - However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement. Unfair Labor Strikers: § Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. § Unfair labor practice strikers cannot be discharged nor permanently replaced. - When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged. Serious misconduct: § Strikers of any type who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. § Serious misconduct includes, among other things, violence and threats of violence. § The U.S. Supreme Court has ruled that a "sitdown" strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. § Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are: - Strikers physically blocking persons from entering or leaving a struck plant. - Strikers threatening violence against nonstriking employees. - Strikers attacking management representatives. No Strike Clauses: § A strike that violates a no-strike provision of a contract is not protected by the NLRA, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer.

Exec employees, Administrative, Professional: Tests for the three - Duties Test

§ Executive must: - Primary job is managing enterprise (or department) - Customarily and regularly direct the work of 2 OR MORE full-time employees (or equivalent) - Have authority to hire/fire other employees OR has ability to provide decimations on hiring/firing/advancement/promotion/etc. and your input has a lot of weight § Administrative: - Be the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer's customers - Include the exercise of discretion and independent judgment for matters of significance § Learned Professional: - primary duty must be the performance of work requiring advance knowledge - advanced knowledge must be a field of science or learning - advanced knowledge must be customarily acquired by a prolonged course - Law, medicine, theology, accounting (CPAs), actuarial computation, engineering, architecture, teaching, physical/chemical/biological sciences, pharmacy, etc Possible essay- What do you have to do to make sure they're exempt? - exemption analysis

Possible Essay Q: How to classify employees - exempt or non-exempt

· Exempt: o 1. Salary basis o 2. Certain duties/job responsibilities o Manual labor is NEVER exempt * o Executive employees (what collar exceptions) o Administrative (what collar exceptions) o Professional (learned and creative) (what collar exceptions) o Highly compensated o Computer professionals o Outside sales employees o Commissioned retail sales employees (overtime pay only exemption) · Non-exempt: o Paid by hour / NOT salary

Possible Essay Q: Fair labor standards act

· Exempt: o Don't have to be paid min wage o Don't have to be paid overtime o Provided certain requirements are met · Non-exempt: o Must be paid min wage of at least $7.25 an hour o Must be paid overtime for any hours over 40 o Overtime calculated at 1.5-time regular pay rate