BareBones Employment

Title 7 A) whats not sex discrimination B) Analysis C) Ability testing D) Transgender

*never for race -Customer preference cannot drive BFOQ claims -individual feelings/emotions, not against women generally. It's not because of sex -Anti-nepotism policies aren't sex discrimination -Rules prohibiting interoffice relationships are also not violations -Employers can't defend sex discrimination cases on religious basis Analysis 1. What is the essence of the business? 2. Is this specific job essential to that essence? 3. Is the discrimination necessary? 4. Is there no lesser restrictive alternative available? Ability testing 4th Cir: men and women are not the same for physical standards 🡪 it's about the overall level of fitness: men and women of equal fitness levels are capable of different things. Transgender: Discrimination on the basis of transgender status violates Title VII and Virginia Human Rights Act

Workplace Injury [Workers Compensation] A) Basics B) Elements C) Defense

*other programs: FECA (Federal employees); LHWCA (Longshore and Harbor Workers; those who work at shipyards); FELA Federal Employers Liability Act (railroad workers) needs some negligence on the part of the employer; Jones Act governs Seamans; Black Lung controls miners and Energy workers have their own workers comp); Social Security Administration has supplemental SS income for people who suffer disabilities A) Basics: Employer can opt out, but it the employee can sue you for a workplace injury -No damages for pain and suffering -VA 3 or more employees § Employer Obligations o Take your employees as you find them -> includes eggshell plaintiffs § Employer can't not hire someone because he has used WC in the past o Employer is required to have private insurance or be self-insured o Employers have to post a notice o Reporting obligations -> employer and employee have to report injuries § Employer obligations -Report injuries to WC Commission ·-Report by employer must be received by the Commission within 10 days of when it receives notice from employee § Employee Obligations: -Notify employer of injury/accident/illness right away -You're required to do it within 30 days or 60 days if you get a disease at work **Notification must be in writing unless boss has actual knowledge. E.g. he looks at you and sees your broken leg · If employee has missed more than one week of work because of injury, employee has to notify WC Commission § Dispute resolution Four levels of review § Deputy from Workers' Compensation Commission gives a decision § Then full Commission review § Appeal to Virginia Court of Appeals -> there is appeal as matter of right § Appeal to Virginia Supreme Court -> need cert § SOL o SOL for filing with WC Commission § 2 years from date of accident § For diseases: 2 years from the date a medical professional tells you "you got this disease from work" and within 5 years of your last exposure § Attorney fees, § Illegal to charge a fee that hasn't been approved by WC Commission if you represent an employee -> these are all contingent (on approval of Commission) fee cases (you're only paid if you win) § Attorney fees are deducted from benefits, not in addition to benefits o Anti-retaliation provision § Disqualification o Employees who make material misrepresentations about previous accidents if pre-existing conditions are disqualified Benefits you get § Medical expenses and earning replacement -medicare (construed broadly, get it until youre back to where you were); provide reasonable and necessary appliances [a means to an end; included CPU] to treat an injured employee -lost comp *cannot work: 66 2/3% of weekly wage in 52 weeks ; in VA lowest $322.50, highest $1290 for 500 weeks/10 years *partially disabled: Light duty. 66 2/3% of the lost wage *permanent total disability: depend on state; lifetime or 500 cap *odd-lott doctrine: cannot find work because there is a limit you cannot do but there is work available for regular people; burden on employer= get workers comp -scheduled losses *loss of a body part; get workers comp plus a payment for the limb lost -vocational rehab; until your 100%; get max -death benefits; must occur 9 years within accident; get max Categories of illness/injury · Temporary partial disability · Temporary total disability · Permanent partial disability · Permanent total/death disability § No fault system (unless misconduct or ignoring safety rules; or inadequately enforced); -Employer liability: whether there's a substantial certainty (literally must intend harm) that injury would result from the employers actions § Common law defenses do not apply § Common law torts actions are pre-empted (cannot sue your employer) -**Fellow servant doctrine: if injury is caused by a coworker -> covered by WC [and cannot sue employer &coworker]; if independent contractor working beside you, VA has it stating that it must be integral to the business of the employer to be covered -Dual capacity doctrine (minority view) o Injured person is an employee, but they weren't acting as employee when injured o Most courts do not recognize this (Virginia) -> if you're injured at your place of work by the employer, it's covered by WC § each state has an administrative agency for adjudication and judicial review B) Elements In order for workers' comp to apply, the injury must: 1. Was the injured person an employee? 2. Was there an injury by accident? -VA -An identifiable incident -Occurs at a reasonably definite time [not gradual injuries i.e. repetitive trauma] -involving an obvious sudden mechanical or structural change in the body (no psych injuries unless accompanied with injury, VA: psych harm that you have is causally related to some obvious shock or fright (shocking, frightening, traumatic, catastrophic and unexpected) that arises in the course of employment) -a causal connection between the two -Illness: Occupational diseases covered o Analysis § 1. It can't be ordinary disease of life -> if you could've gotten it/been exposed to it elsewhere, then you're out § 2. You have to show you got it at work -Burden on employee to show that you got it at work by clear and convincing evidence that work the work-related exposure was the cause. 3. Arise out of employment -> work-related injuries § Causal connection to the work § Excludes hazards that employees are exposed to aside from work (act of God, etc.) § Kmart example ; if everybody in the neighborhood is exposed to the same thing, its really not arising out of your work; they are exposed to more risk. BUT not limited to injuries caused by activities related to the employee's normal work duties ie with training but not your main job title. (Eckis v. Sea World Corp) -an injury or resulting from an assault arises out of the injured person employment when its directed to the victim as an employee Horseplay: VA nonparticipating victim of workplace horseplay is entitled to workers compensation benefits 4. Occur in the course of employment (time, pace, and circumstances) -> injured at work, during working hours: "where the worker may reasonably be fulfilling a job duty (advancing the employers interest; directly or drectly) or engage in doing something incidental to the job duty" DEFENSE: Under Wyoming's workers' compensation law, an employee is not entitled to workers' compensation benefits for an injury resulting from the employee's violation of a safety rule

OWFPA A) Basics B) Requirements

-Older Workers Benefit Protection Act (OWBPA) A) -Applies in case of releasing ADEA claims Scheme: if someone is over the age of 40 and being asked to give up their ADEA rights (in addition to others), employer must give a warning to the employee: B) 1. Employer tells employee to consult a lawyer 2. Employee gets 21 days to consider whether they'll sign the waiver -They don't have to wait the whole time but they have to have the opportunity 3. After employee signs agreement, they have 7 days to rescind it if they change their mind -If employer doesn't comply: employee gets to keep the severance money and still sue you

Freedom at workplace: Social Medial

-Talking about work on social media -> NLRB territory -There are limits about employer saying "you can't badmouth your boss or the company" B) Access Cases where employers forcing employees to give passwords, "friend" them on sites, or otherwise give access to employers of their social media profiles § Virginia: law prevents employers from forcing employees to give over passwords/friend the boss -voluntarily giving it is fine and employer acts on it -But employer can request it / force employee to give it over if part of an investigation in violation of state, federal, or an employers written policy. Employee can say no but you can get lawfully fired for it.

VOSH Procedure

-file a complaint -vosh sends fax/letter to employer -5 days to respond and employee gets copy -if employee dissatisfied, can request inspect -inspector must stick within scope of violation -interview: Management gets a company rep, others do not -If violation found, citation issued, 6 months SOL. -Employer has 15 days to respond: No contest, pay fine. Contest: 15 days to negotiate then petition to go to an ALJ, if appeal goes to OSHCA then can go to federal court

A) Appearance B) Defenses

-ok to prefer attractive people A) Basics -Title 7 prohibits employers from imposing requirements on how their employees act or dress based on stereotypical gender expectations. Ex. Employer requiring woman to dress in traditionally feminine or sexual provactive clothing or treat them as stereotypical sex objects Jesperen v. Harrahs Operating Co. Inc: Rule: An employer's grooming standards that appropriately discriminate by gender are not facially discriminatory under Title VII -Employers grooming standards does not violate title 7 if theres no evidence the standards unreasonable burden employee one gender Grooming standards violate title 7 if theres evidence the standards are motivated by sexual stereotyping/expectations. Ex. Employer requiring woman to dress in traditionally feminine or sexual provactive clothing or treat them as stereotypical sex objects When looking at the employers standards, must look at it comprehensively AND NOT parsing particular requirements B) defenses: legitimate business reason [before the fact]: -eliminate confusion of who they are -advertising purposes -safety reasons -setting a tone: respect or appearance at the workplace -making an impression on customers and meet workers expectation

Freedom at the Workplace: Personal 1) -Wellness programs 2) Smoking: 3) Obesity 4) alcohol 5) marijuana 6) Dangerous activity 7) Speech 8) Personal Association 9) Personal Records 10) Virginia Personal Records: Written request, employer has to give

1) -Wellness programs at work: ok if voluntary [watch out for asking for disability or family history: gina/ada territory] 2) Smoking: employer can prohibit smoking at work (can choose not to hire smokers in 20 states) 3) Obesity: no law against it (but depends on local ordinance or its related to a medical condition) 4) alcohol: can prohibit and not hire 5) marijuana: can prohibit and not hire 6) Dangerous activity: Can prohibit 7) Speech: only applies to sovereign, can prohibit unless S7 NLRB 8) Personal Associations: can prohibit but very hard to enforce/polic -no fed law prohibits discimination based on marital status but half of the states do 9) Personal Records -no right for employees to see records on them § Government worker: yes § But private workplace: no -BUT OSHA: employee can request 10) Virginia Personal Records: Written request, employer has to give -Dates of employment, wages, salary, job description, title, injuries within 30 days UNLESS employees physician says disclosure would be harmful. Can get subpoena

Affirmative Action A) Basics B) Threshold Requirements C) Plan Requirements D) Best strategy for employer

1) Affirmative Action Nothing in Title VII requires employers to engage in affirmative action to make its workforce representative But it is mandatory for many government contractors 🡪 Office of Federal Contractor Compliance Program (OFCCP) Goal: 80% of workers in any given job category must reflect the population B) If contractor has at least 10 employees and at least $10k in government contracts: must have a policy If contractor has at least 50 employees and at least $50k in government contracts: must have a plan [with steps Private employers: Voluntary C) Plan requirements -Written plan: correct manifest imbalance in traditionally segregated job categories -Program must be temporary -doesn't exceed proportional representation -It can't actively discriminate against non-minorities What works best: recruiting minority candidates No reverse discrimination: can't say "we'll fire this white guy to make room for this black guy" The program cannot exceed proportional representation.

At Will Employment

1) At will employment Default rule: unless the parties have contracted for a fixed duration, all contracts of employment are terminable at the will of either party with or without prior notice Burden: On the plaintiff 2) Montana: Wrongful Discharge for employment Act: not at will employment. There is a 6 month probationary period after employee is hired (unless employer and employee contract for a different time), then after that the employee can't be let go except for good cause. Cause of action for wrongful discharge 1. As against public policy 2. For reporting a violation of public policy (retaliation against whistleblower) 3. No good cause 3) Rate-of-pay rule: If you get paid every two weeks, its assumed were expected to work at least that long

Title 7 Pregnancy Discrimination Act (PDA) 1) Which test and whats the Prima Facia case 2) Generalities of PDA

1) Reasonable accommodation duty inserted into PDA using disparate treatment analysis -If another worker gets accommodation based on their ability or inability to work, pregnant employees have to get it too Prima facie case 1st: show protected class = pregnant 2nd: worker sought accommodation 3rd: worker wasn't accommodated 4th: employer did accommodate others similar in their inability or ability to work Employer must show legitimate, non-discriminatory reason Then, employee must show that the reason is pretextual -Can show that the policy imposes significant burden on pregnant workers and that the legitimate reasons aren't sufficiently strong to justify those burdens -Can show that the employer accommodates a large percentage of non-pregnant workers but fails to accommodate a large percentage of pregnant workers -Employer's reason may honestly be legitimate and nondiscriminatory, but if it imposes too much of a burden on the pregnant workers as opposed to the benefit the employer gets out of it 🡪 fail in terms of escaping liability Young: Apply temporary medical condition accommodations equally 2) Discrimination on the basis of pregnancy is discrimination based on sex 🡪 illegal What law requires of employers: don't treat a pregnant worker differently than a non-pregnant worker When asked for special treatment, accommodation, leave: what would you do if someone had been injured in car accident (or some other medical condition that has arisen that creates some sort of limitation as a result of something that occurs out of work)? 🡪 treat pregnant women the same way 1. PDA is a floor, not an elevator Pregnant worker doesn't lose any rights in the workplace by being pregnant but they don't gain any either 🡪 they just can't be treated worse than non-pregnant workers 2. PDA protects status of being pregnant, not the conduct that got you pregnant It is not illegal to prohibit extramarital or premarital sex by your workers 4. PDA doesn't cover breastfeeding (FLSA does up to 1 year, private place, not a bathroom but a clean quiet place) Time doesn't have to be paid UNLESS men are getting paid for breaks 5. Law extends to terminating pregnancies as well ***Employers may not substitute a paternalistic attitude on what is best for a mother and unborn child e.g. prohibiting women of childbearing age from working on the line around the harmful chemicals

Discrimination Tests

1. McDonell Douglas burden shifting test: Disparate treatment: deliberately treating someone differently than others 🡪 intentional discrimination Applies when P cannot show direct evidence but is pretty sure he was fired based on membership in a protected class Only disparate treatment, not disparate impact P's prima facie case 1. P is in a protected class 2. P is qualified for the job 3. Adverse action was taken 🡪 P was fired, rejected for a job 4. D kept the job open and someone (of a different race/status) got it even though their qualifications were not better than P's If P makes prima facie case, the burden shifts to employer: even if all of that is true, employer had a legitimate, non-discriminatory reason for taken the action Then burden shifts back to P: the employer's explanation is pretext P must show something to demonstrate the pretext Defense: bona fide occupational qualification (BFOQ) 🡪 there is a job requirement allowing employer to intentionally discriminate Labor and delivery nurses: women Prison guards at male penitentiaries: men Never applies to race 2. Mixed motive discrimination: some action was taken against someone in a protected class, but there was another reason, in addition to the discrimination, why adverse action was taken Holding: mixed motive is not a defense, employer still liable (waterhouse) P proves that discrimination existed. Then: employer must prove that it would've taken the same action even without discrimination Employer is still liable for the illegal discrimination but the remedies are much less 3. Disparate impact: not intentional discrimination but the policy/practice falls harder on one protected class 🡪 facially neutral policy Proving disparate impact: burden shifting 1. P's burden: P must show a policy or practice at work AND show that the policy or practice caused the discriminatory consequence/disparity 2. D's burden: D must show the policy is job-related and consistent with business necessity 3. P's burden: if D does that, P must show that there are alternatives that will achieve the same results with less impact 4. D's burden: if D fails to adopt those alternatives, then D is liable. Can't make a race-based decision due to fear of disparate impact suit Ricci v Destefano

Protections for Employers: 3. Tortious interference with contract A) Elements 4) Common law conspiracy 5) Statutory Conspiracy 6) Misappropriation of Trade Secrets 7) Computer Fraud and Abuse Act (CFAA) 8) Virginia Computer Crimes Act

3. Tortious interference with contract [seen in non competes] Contract or business expectancy/prospective relationship (if there is no contract yet) § We were going to have a contract with X until Y stole it from us Requires 1. Valid contractual relationship or business expectancy [contract expexted] · Expectancy is more than speculative: we were on the way to getting it locked down § 2. The interferer knew of the existing contract or the expectancy · Didn't just accidentally end up doing business with someone we were doing business with § 3. The interference was intentional, inducing the breach -I'm going to steal away that customer, have them breach their contract with my former employer - and I know what I'm doing, it's intentional -Intentional interference: using improper means or methods § 4. Resulting damage o For an expectancy: but for the interference, the expectancy would have been realized 5. Common law conspiracy o Requires at least two entities or individuals o Requires concerted action § 1. With unlawful purpose, or § 2. With lawful purpose via unlawful means, and § 3. Damages [to p] 6) Statutory conspiracy o It's not enough to conspire to engage in concerted action for unlawful purpose or using unlawful means o It must be to willfully and maliciously injure the plaintiff § Purpose was to hurt the plaintiff [in their trade business or profession] o Remedies (better than common law conspiracy) § Treble damages § Attorney's fees and costs 7) Misappropriation of trade secrets o Uniform Trade Secrets Act -> adopted state by state § Virginia Trade Secrets Act § Elements what is a trade secret? · 1. The information has independent economic value from not being generally known to and not readily ascertainable by proper means by others who can gain economic value from its disclosure or use, and o If readily available to others -> not a trade secret -if learned basic processes that a person would learn on the job, not a trade secret -unique combinations of general info, its a trade secret · 2. Reasonable efforts made under the circumstances to maintain its secrecy § Remedies · Actual damages · Unjust enrichment · Double damages as punitives · Injunctive relief o Defend Trade Secrets Act of 2016 § Federal law -> everything in Trade Secrets Act but at federal level with additions ·-Statutory basis for federal jurisdiction - It doesn't preempt state law -> it's in addition to state law -Can sue under state and federal law § Allows for ex parte seizure of secrets under extraordinary circumstances -If you think your competitor has stolen a trade secret from you, you can go to court ex parte and say "judge, seize that -> take it away from my competitor" § Misappropriation of trade secrets: either the acquisition of a trade secret or disclosure of a trade secret § Remedies -Injunctive relief -Double damages and attorney's fees - provided that notice is given in employment contract that provides for confidentiality of trade secret protections Notice Requirement -You have to alert someone "don't steal our trade secrets" -Notice has to say that the employee is immune if disclosure is made by the government officials or attorney for the sole purpose of investigating the law § Basically whistleblower protection -> you're immune from us coming after you if you're disclosing trade secrets to a government entity or an attorney investigating a violation of the law - Punitive damages for willful violation 8) Computer Fraud and Abuse Act (CFAA) § If you access a computer or information on a computer without authority and cause loss to one or more persons, as long as the harm aggregates to at least $5k in value -> violation -The $5k includes any reasonable cost to the victim -Can be if someone hacks into your system and it costs you $5k to confirm that nothing was stolen § Circuit split: when the person who hacks into your system has authority to be there anyway -> an employee has access but uses access for an adverse purpose · Some: if you're authorized to be there -> no violation even if your use is improper · Others: if you're using it improperly à violation 8) Virginia Computer Crimes Act § It is illegal to trespass into a computer system -If you use a computer network without authority to either permanently or temporarily remove data from it, alter or erase information on it, make unauthorized copies -> violation § Criminal and civil liability available Any person who is injured by violation of the act can sue and recover any damages sustained and the cost of suit -Have to prove damages but you get your fees and costs back. Damages include loss of profits

USERRA A) who is covers B) Test C) Basics D) Anti Retaliation?

A) -Covers voluntary and involuntary service -Includes individuals not in armed forces but who decide to join armed forces after being hired -Job in waiting: requires job to be held for someone gone up to five years for military service -Person goes on tour for 4.5 years 🡪 job is still waiting -Reservist at work goes for 1.5 years, then back, then gone for 6 months, then back 🡪he's good as long as it doesn't exceed 5 years B) Mixed motive is allowed: P just has to show that military service was a motivating factor not the motivating factor C) Basic idea: your job is waiting for you 🡪 you get your old job or an equivalent in terms of pay, seniority, benefits if employer can't put you in exactly the same job New job must be exactly as good as your old job as if they never left [escalator provision, both up or down] -Requires updating returning veterans' skills 🡪 train them on new software, etc. -Requires duty-related disabilities to be accommodated -Tenure: cant fire right away, doesnt have to stay forever, a few months to a year tops Only exception: if it imposes undue hardship on employer 🡪 high bar, not just that it will cost them more Time starts over again with each new employer Threshold requirements? Notice: -Deadlines by which servicemember must tell employer that they've been released from active duty and that they plan to return: -If on active duty for longer than 180 days: 30 day window -For shorter periods of service: shorter window to tell employer The longer you're gone, the longer you have D) Anti-retaliation provision: Enforced by DOL or can go straight to court

Equal Pay Act A) Basic Scheme B) Whether you can consider prior pay history B) Eliminations C) Defenses

A) Basic Scheme 1. Employers must pay men and women the same for similar work Doesn't have to be the exact same work BUT "SUFFIECIENTLY SIMILAR 2. Must pay them the same for the same establishment [has to be in the same region] -It doesn't have to be the exact same office, just the same market generally 3. Work must involve equal levels of skill, effort, responsibility and be performed under similar conditions -Look at what the worker actually [duties] does -Hardest part of EPA: finding a comparator [find a specific person] - It can't be "men are paid more generally" -You have to have the right comparator B) Question: whether prior salary history is a "factor other than sex" -Depends on circuit, you can use it, can pay higher if its urgent/critically urgent, other states say you cannot consider it. o Applies to total compensation, including benefits, salaries, use of perks -> Includes hidden compensation for job o Employer can't resolve an EPA problem by cutting the higher paid worker's salary; you must increase the lower paid worker's salary B) Eliminators: § It doesn't work if the other person has additional duties, etc. § You can't use broad generalizations ("they're both lawyers") ·-You have to look at the duties each does § You can look at the person who had the job before or after you -Probably limited to immediate predecessor, successor -After employee proves their case (with comparator) Employer must prove not just that a factor other than sex could explain the disparity but that it actually does explain the difference C) Defenses 1. Bona fide seniority system -Bona fide -> the system wasn't just made up to defend the claim 2. Bona fide merit system -Yes it's the same job, but John is better at the work than Kate so we pay John more 3. Piecework & incentive system -Worker is paid per widget -> John produces more than Kate 4. Any factor other than sex -Yes they're paid differently but it's not because of sex" -Courts interpret this broadly 5) Red-circling (like a BF0Q) -Intentional pay disparity but employer doing it because it is temporary -John is temporarily put in this position and he's getting paid more than the women in this position just until we get him moved on to a new position -30, 60 days is ok; 3 years is not E) Enforcement § DOL enforces it § P can complain to EEOC or go straight to court · If EEOC: standard process -> charge, right to sue letter, have 90 days § Jury trials

Age Discrimination in Employment Act (ADEA): EEOC, can go to court in 60 days without Right to sue letter A) Basics B) Exceptions C) Tests D) Defenses

A) Basic prohibition: employer can't discriminate against a protected worker on basis of age -It's ok to favor older workers (giving all the good jobs to older workers) -Mandatory retirement policies are impermissible Coverage -Employers with 20 or more employees -Employees 40 years and older B) Exceptions -Airplane pilots at 65 -Police and fire at 55 if the policy is mandated by state and local law -Extremely senior execs with benefits packages (owner v. employee analysis) C) Theories of discrimination -Disparate treatment: yes -Can use McDonnell Douglas -Mixed motive: no: 'but for' causation -Disparate impact: yes D) Defenses -Affirmative defense: employer shows that adverse action was due to a reasonable factor other than age (RFOA) [not in disparate treatment cases; its a facially neutral policy] -Employer must show the practice was both reasonable and designed to further a legitimate business purpose and administered in a way that reasonably achieved that purpose in light of the circumstances known or reasonably should've known by an employer -BFOQ (very tough; typically safety. Case: EKG for metro transit for over 40 applicants) -Not a defense to favor another protected worker ****6 years is enough in a lot of courts; anything 5-6 years is up for advocacy

Sexual Harassment (still title 7) A) Basics B) Rule C) Types of cases and their tests

A) Basics EEOC: Unwelcome sexual advances in the workplace... that unreasonably interferes with an individual's work performance or creat4es a hostile environment. -does not have to be at the workplace -based on the victim's perspective, does not matter for violators intent Meritor: Unwelcomed quid pro quo, violation even with consent B) Tests Harris: 1) Offensive conduct A) Subjective: Bothered the Victim B) Objective: Reasonably offensive 2) totality of the circumstances A) Frequency B) Severity C) Whether physically threatening D) Whether unreasonably interferes [with their work] Oncale: Applies to Same sex harassment as well. Breeden: Single comment or single instance is not enough. Suders: She quit; constructive discharge? they can still use the Farragher/ellert defense Vance: Supervisor definition, has authority over others dictating working conditions C) Types of cases: 1) By supervisor -Tangible employment action [significant change in employment status]-> strictly liable -Non-tangible employment action Farragher/Ellerth defense: -did the employer use reasonable care to prevent harassment from occurring and correct it when it does? (ie policy and training) AND -Employee unreasonably failed to use the system 2) Coworkers -Employer knew or should have known AND - fails to take prompt, appropriate remedial action [does not have to "try" ie training etc. fix the problem, just has to try] 3) 3rd party -use the coworker test

Occupational Health and Safety Act (OSHA); Part of DOL A) Basics B) Reporting C) Hierarchy D) Type of inspections

A) Basics -National scheme but states create their own approved plans to follow it (federal sets the minimum standards) **no private cause of action. Up to sovereign to sue *no anti-retaliation, but has whistleblower protection Right to refuse work if unsafe: Whirlpool v. Marshall § OSHA only applies if the conditions being regulated are work conditions or is work related (Frank Diehl)-> trying to avoid occupational hazards and activity is related to commerce, though not directly (Chao) -Regulates anything that's not a home office - Employers have obligations to post OSHA requirements B) Reporting: A) § By employer -If employee is killed on the job, employer must inform OSHA within 8 hours -If hospitalization or loss of eye: notify OSHA within 24 hours § By employee or representative of employee -Preventive: No one has been hurt but the employer is violating a rule or there is a danger of harm -> employer can report it -Imminent danger: only need a good faith belief that the danger exists in order to report it C) Hierarchy /priority of inspections · 1. Imminent danger of workers being hurt · 2. Serious accidents: fatalities, injuries, hospitalizations, etc. · 3. Employee complaints · 4. Agency referrals · 5. Targeted inspections: focus on this specific issue / this specific type of accident Example: we are focus on the meatpacking industry this year, so our inspections will focus on those facilities 6. Follow up inspection: one of those things has already happened à let's investigate and make sure there wasn't any backsliding D) Types of Inspections ·Program inspections: done in neutral, random way to determine who gets inspected Unprogrammed: result of employee complaints or reported violations *employer can refuse and require warrant. *exception: Consent, public view, Exigent (demanding pressing circumstances

Fair Labor Standards Act (FLSA): DOL or straight to court A) Basic B) Pay C) Work Week D) Calculating base pay E) What considered work-time F) Whats not G) Exceptions H) Defenses I) Remedies

A) Basis Coverage -Almost every employer is covered -cannot opt out of FLSA or even parts of it -has anti-retaliation and whistleblowing protection provision -Record keeping of work hours required under FLSA (burden on employer, if not, employee gets presumption) Exception: family businesses where every worker is a family member Must be -Employees = someone who is permitted or suffered to work -employer is any person acting directly or indirectly in the interest of an employer in relation to an employee (includes entities, owners, officers and supervisors as well; can sue multiple) -Includes part time or temporary workers B) -Basic scheme § Minimum wage: $7.25/hour - employee gets minimum wage for each hour worked (VA moving up to $15/hr) § Tip credit -Employers can pay waitresses/waiters less than minimum wage and allow them to count tips as long as it adds up to the federal minimum wage C)- "Work week" -7 consecutive 24 hour periods -> can begin on any day, at any time ·-Must be set in advance and be consistent across all employees D) § Calculating base pay -Hourly wage -Shift deferential (if $10/day is day shift but $12/hour is night shift -> base is $12) -If the worker is paid for being on call -Money the worker is entitled to: "I know if I do this, I'll get paid ___" -Doesn't include discretionary bonuses or gifts (things you aren't entitled to) § Premium pay: base pay times 1.5 for every hour of overtime · Private employers: must pay out premium pay [no comp pay to make up for overtime] · Public employers: can give the worker compensatory time [one and half time the rate for each hour of overtime worked] or premium pay. Capped at 240 hours then its paid in cash to you, employer can use it when they want, as long as it does not seriously inconvene the employer. -Anything after 40 hours: worker gets premium pay E) Whats considered work-time? IBP v. Alvarez: [donning ime in preparing is work time unless its de minimus ie if it takes less than 10 minutes a day in the aggragate]. Things that are integral and indispensable to a principal activity is itself a principal activity and gets compensated (preliminary and postliminary activities) Other things considered working time? Eating at your post = working time Tazikis: working for the same employer in separate locations, it must be considered aggregate time, so you get overtime for the hours over 40. -breaks of less than 20 minutes = working time [including smoke breaks] [make breaks 30 minutes or more without any duties] -preparing for a test for an employer is working time -commuting is not working time however once you have gotten to the first work site of the day then going to other work locations is working time -required community work is working time -on-call time, is not working time unless you're severely restricted to do other things --security check for guards is compensable because its integral to their work (for the benefit of the employer): F) Not Work time/Not Compensable: 1) walking on the premises to and from the place where the principal activity is to be performed and (2) preliminary and postliminary activities occurring prior to or after the workday. -requiring employees to stay on premises to get free food but relieved of any duties = fine - bag checks not integral or indispensable -no rule gainst working 24/7. -no mandate for time off for weekends or holidays -does not require meal or rest breaks -no premium pay until 40+ cumulative hours -no mandatory breaks or meal breaks under federal law G) Exceptions o Police/fire -> allotted by 2 week periods: anything after 80 hours is overtime o Residential healthcare facilities: workers get premium pay for going over 8 hours in a given day or over 80 hours in a 2 week period H) Defense 1. You were wrong but your actions were taken in good faith, and 2. You had an objectively reasonable belief that your actions didn't violate FLSA -"My lawyer/accountant said it was ok" -not ignorance of law I) Remedies: Backpay Limit -Compute back pay with 2 year lookback period from when suit is filed or 3 years for willful violation -Willful violation: employer knew or showed reckless disregard for the manner of whether it's conduct was prohibited by FLSA -Attorney's fees and costs § Settlement requires approval by Secretary of Labor or court -But a circuit split: not all circuits require it -Advise client to get it approved just to be safe

Child Labor (enforced by DOL) A) Basics B) Extreme jobs C) Driving D) When school is in session E) When school is out

A) Child labor -Scheme is graduated by age as to limitations and what is permitted B) Under 18 -For anyone under 18, there's a list of jobs that are outright prohibited because they're too dangerous -Mining, roofing, operating meat slicer, more C) Driving -If older than 17: can drive a vehicle in conjunction with work -If under 17: can't drive as part of your job -if exactly 17: driving has to be in daylight hours on public roads, has to be incidental part of the job (not the job itself) 4-16 -Hour limits in addition to other limits above D) When school is in session a) Minors from 14-16 can only work 3 hours/day or less b) Maximum of 18 hours/week c) Work must be performed from 7a-7p E) When school is out a) No more than 8 hours/day b) No more than 40 hours/week c) Work must be done between 7a-9p 2-13 -Only can work in certain agricultural activities as long as they're working with parents' consent at the farm/ag site or at the same farm/ag facility where their parents work Under 12 -Absolute prohibition against them working -Exception: if child actor or working on a farm owned by family Virginia law -14 and 15 years old: have to get employment certificate -Filled out partly by parents, partly by employer -Employer can't employ them unless they have valid employment certificate -Some jobs don't require this -> if you work for your parents, in someone's home, on a farm/garden/orchard, acting, government employer, volunteer work

Government Contractor A) Prevailing Wage B) No prevailing Wage C) Difference of Jobs D) Violations

A) Requires prevailing wage determined by Sec. of Labor, not the FLSA, must be published periodically, organized by county. o Fixed amount per hour regardless of hourly wage paid o Can be a fringe benefit (healthcare/other nonmonetary benefit) but it can also be satisfied by paying an amount in cash equal to the fringe benefit -Provide minimum amount of paid vacation days -Provide 10 paid federal holidays o Christian Doctrine: [assumption of a prevailing wage] even if government contract neglects to say that the appropriate prevailing wage statute applies, the law will read into every contract that it does apply EO 14026 -Provided for payment of min wage of $16.20 -Applies only to contracts under Davis Bacon and Service Contract Act -> not Walsh Healy and "get right to first refusal" · 1. Service Contract Act · 2. Davis Bacon Act Does not require prevailing wage B) 3. Walsh Healy Act § All incorporate FLSA, so wages paid under them when overtime kicks in at 40 hours/week are 1.5x the worker's base pay C) Difference of jobs Davis Bacon Act [building or repairing property] Applies to federal contracts for construction or repair of federal buildings or public works of the United States -Only for blue collar workers -> mechanics and laborers working on a contract ·-E.g. painting, work involving laborers or mechanics -Public vessel is considered public work unless it is a Naval or Coast Guard vessel -> these fall outside of the Act -Employer must post prevailing wage at worksite -Workers must be paid weekly Service Contract Act [providing Servies, not making things] § Applies to fed contracts in excess of $2500 to furnish services through the use of service employees -Contractors are providing labor/services -> not making/improving things Penalties For violations, employer risks: · 1. Civil liability for breaching contract with government · 2. Having contract terminated by government · 3. Potential disbarment Walsh Healy Public Contracts Act [providing things for the government] § Applies to fed contracts of $10k or more for manufacture or furnishing of material, supplies, articles, and equipment -> making or providing things for the government [only those making the goods specific to the job] -E.g. delivering postal trucks to USPS, tanks to Army, pens/paper/furniture to government D) Violations · 1. Government can enforce it as a breach of contract · 2. Government can terminate contract and walk away [if employer is not complying with the act] · 3. Contractor faces debarment

Retaliation for Title 7 A) Test overview B) Protections C) Applies to which cases

A) materially adverse action is an action that would cause a reasonable worker to avoid engaging in protected activity. (Burlington) For discrimination itself, "adverse action" typically requires: -material change in compensation, terms, conditions, privileges of employment *covers a good-faith belief that they are covered *its a wider net than title 7 *if they quit before any action (ie they only threaten), employer can show the job was objectively tolerable *p can argue constructive discharge Presumption: when someone A) complains and B) any adverse action followed, it was because the person complained (engaged in a protected activity) 🡪 burden shifts to the employer to prove adverse action wasn't taken due to retaliation B) Protected actions 1. Participation: making a charge, assisting in an investigation, playing some role in the process of a charge of discrimination 2. Opposition: if someone opposes a practice made unlawful under Title VII -It is ok to be wrong about the underlying discrimination 🡪 even if P can't prove that the employer actually engaged in illegal discrimination, P is still protected for good faith belief that employer was engaging in illegal discrimination Mixed motive: no; must be but-for C) -Applies to -Title VII -ADEA -Probably § 1981 -ADA -FMLA

Medical testing

ADA rules apply to medical examinations 1st: what is a medical examination? No: test for illegal drugs, ability tests, character tests, polygraph exams Drug testing Only bar for private employers is ADA Status of being addicted to drugs/alcohol is protected but use of drugs/alcohol isn't -Safest course: administer drug test as part of conditional job offer Yes: vision test by eye doctor; blood, urine, breath analysis for alcohol; blood pressure tests; pulmonary response tests; MRIs, CT scans, etc. Other exams - factors to consider: -Administered by health professional? -Results interpreted by health professional? -Designed to reveal impairment or condition of mental or physical health? -Is it physically invasive? -Does it measure physiological response to a given task? -Check blood pressure while lifting the box -Take blood pressure before and after ability test -Is it administered in medical setting? -Is medical equipment used to administer the test? 2nd: when can employer give a medical test? 1. Pre-offer stage: you've applied, no offer yet = No medical exam Employer can't ask if you have a disability or how severe/of what nature Employer can only ask if you can perform the functions of the job 2. After conditional job offer Employer can give medical exam but only if the same exam is given to everyone in the job category (e.g. every harbor worker will take a vision test) -Keep results confidential -Supervisor doesn't need to know except: if worker needs accommodations 🡪 only essentials, it stays with HR The exam doesn't have to be job related but you can't withdraw your offer based on something unrelated to the job VA: can't make employee pay for the medical exam 3. After employed: a current employee -Higher standard for when employer can give a medical exam -Can only give medical exam if it is job related and consistent with business necessity

Affirmative Action

Affirmative Action Nothing in Title VII requires employers to engage in affirmative action to make its workforce representative But it is mandatory for many government contractors 🡪 Office of Federal Contractor Compliance Program (OFCCP) ion Goal: 80% of workers in any given job category must reflect the population the contractor's metropolitan area Race, gender, disability, veteran status If contractor has at least 10 employees and at least $10k in government contracts: must have a policy of trying to get workforce to be representative [nothing concrete, just saying we believe/strive to get there.] If contractor has at least 50 employees and at least $50k in government contracts: must have a plan [with steps], not just a policy Voluntary Affirmative Action Private employers who voluntarily under affirmative action Affirmative action must be remedial 🡪 there is a problem, so the employer is trying to fix the problem / correct an imbalance because the workforce isn't representative Plan requirements -Written plan: correct manifest imbalance in traditionally segregated job categories -Program must be temporary -doesn't exceed proportional representation -It can't actively discriminate against non-minorities What works best: recruiting minority candidates No reverse discrimination: can't say "we'll fire this white guy to make room for this black guy" The program cannot exceed proportional representation. Takeaways -Aggressively recruiting nonminority candidates: yes -Not hiring or firing someone solely because of race (reverse discrimination): no

Hiring Process: App, interview, polygraph

Applications Abel: don't ask anything on the application that you will not use Presumably if it's on your application, it's a factor in your hiring decision so don't ask illegal questions (race, age, etc.) Salary inquiries 25 states have a ban on asking what the applicant currently makes (not VA) Interviews Lysak P was pregnant. She wasn't asked but volunteered that she didn't plan to have more kids but was actually pregnant at the time. She felt bad and admitted it, then was fired. She brought pregnancy discrimination case. Holding: P loses 🡪 willful misrepresentation by P is grounds to not hire someone/fire them It's different than if she had been asked whether she planned to have more kids and lied 🡪 the question is illegal Even then, it may not be ok to lie in your answer. If you think you were denied employment based on a protected characteristic, seek a remedy for discrimination Here: she volunteered the information Best advice: if improper question is asked, don't answer it (may be difficult in practice) Interviewees do not have a duty to volunteer unpleasant information (no "they should've told us this") Big issue: is the employer asking improper questions? Dumb questions to avoid: year you graduated high school, military obligations, when you want to retire, number of kids you want or have, how long you've been married Can't ask about disabilities 🡪 can only describe the essential functions of the job and say "can you do these with or without accommodation?" But can't ask "do you need accommodation to do these?" At application stage, the only question you can ask with regard to disabilities is whether someone needs accommodation in completing the application itself Polygraph Protection Act: polygraph testing is prohibited for all private employers

Discharge

At will employment o General rule: either side can terminate the relationship for any reason o For employees: how do you get around at will employment? § 1. Statutory rights A) Anti-discrimination laws and retaliation law (fired for improper reason) B) Federal Whistleblower protections; SOX, Dodd Frank Act, § State level whistleblower protections also exist C) Abrogation of at-will employment (Montana).; § After 6 month probationary period, you have a right to your job and can't be fired after that except for good cause § Remedies for violations · Lost wages and fringe benefits · Can get punitive if actual fraud or malice in your discharge · No pain or suffering D) Safe Drinking Water Act -> protects employees who complain about lead in drinking water; International Safe E) Container Act -> protects employees who report unsafe shipping; F) Sarbanes Oxley: Applies to publicly traded companies which violated federal law ->protects employees who report wrongdoing to the SEC G) Dodd Frank: Regulates financial firms, Wall St. businesses · 5th Cir: protects employees who complaint to SEC but not internally · 2d/9th Cirs: protects employees who complain internally (to boss) and SEC H) False Claims Act: Protects employees who see misconduct by their employers when dealing with the government trying to get money (but employee can't be involved in the misconduct) -Provides for qui tam suits -> someone sues on behalf of the people o Government can step in and take over or allow the person to pursue the suit o Person gets an award § 2. Contract theories A) Oral or implied contracts Oral contracts are enforceable -May have a shorter SOL -Watch out for Statute of Frauds -> contract must be completed within 1 year -Watch out for anything in writing which could trump the oral contract -Courts can imply an implied covenant of good faith and fair dealing clause into the contract -Virginia: not done, only in contracts with a fiduciary duty, dead here B) Written contracts -cannot get protection if you breached the contract -Interpret collective bargaining agreements as written contracts -A "satisfactory work" clause does not alter the at-will nature of employment (this is the case in Virginia) -cannot rewrite a contract § Handbooks generally don't form an employment contract -Put disclaimer into the handbook: "nothing in this alters at will employment; you can be terminated at will" § Remedies: no specific performance § 3. Common law torts · Wrongful discharge in violation of public policy § Majority rule: need a statutory or constitutional basis for the public policy that was allegedly violated -Point to a statute or constitutional provision: that's where this policy comes from § Four protected categories · 1. Refusing to violate a statute. o If I do this, I'm violating the law. Don't fire me for refusing to violate the law · 2. Performing a statutory obligation o I have a legal obligation to do this, don't prevent me from doing it · 3. Exercising a statutory right or privilege o I may not be required to do this but the sovereign has given me this right to exercise, don't take it away from me · 4. Reporting an alleged violation of a statute of public importance [usually best to point at a state law] o Whistleblower protection § Examples Gardner v Loomis Armored: violated company policy in order to save someone's life -> protected · Hanson v AOL: men kept guns in cars in parking lot in violation of company policy - employer's private property rights v. 2nd Am -> courts come out differently -Defend yourself strong argument for right to self defense -keep gun in your car fine, companies car no · MO: man fired for taking time off to donate kidney -> he is protected because he was acting in a way that public policy encourages (vague) · OK: sick man (nurse) told to stay home from work by doctor, employer ordered him to come in then fired him when he didn't -> protected · AL: person complained about coworker being discriminated against on ADA grounds and was fired -> protected o Also: statutory claim under ADA -> bring both (only get one remedy)

Back ground checks

Background checks on prospective employees Two schemes 1. EEOC guidance on criminal background checks 2. Federal Fair Credit Reporting Act (FTC) EEOC Guidance: criminal background checks Concern: filtering applications by conviction record may discriminate unintentionally by race in violation of Civil Rights Act Initial burden is on employer Employer must show that sorting its applicants on the basis of their criminal record or conviction history is job related and consistent with business necessity Burden can be met either by: 1. A. Formal validation (very high bar to get over) 1. Show statical relationship between process of using criminal background as a hiring criteria and one's job performance 2. Show content validity: content of the selection procedure is representative of important aspects of the job 3. Show the procedure measures a construct that is important for the performance: if there's an underlying characteristic (e.g. integrity) associated with the job that screening out those with conviction history that's unfavorable makes sense 1B Targeted screen (guided by Green factors) When you are using conviction as a criterion for hiring, look at Green factors: -Nature and gravity of offense(s) you're considering -Harm caused -Legal elements -Class of offense: MD or felony -Time passed since conviction or completion of sentence arising from it -Include evaluation of recidivism for that type of offense -Nature of job for which they've applied Is it more than job title which suggests conviction would be a problem? What are the specific duties? Functions of the job? Environment in which it is to be performed? Look at those then make judgment of what are the outer limits for what is acceptable for that job? 2. Employer then conducts an individualized assessment 🡪 sits down with applicant and does a review: -Facts/circumstances surrounding offense/conduct -Number of offenses for which they were convicted -How long ago was conviction/release from incarceration -Whether individual performed same type of work after conviction without any incidents or problems -Rehabilitation efforts -Character references -You've already narrowed scope of what is disqualifying in terms of conviction history 🡪 then literally look at it in context of each applicant: for this applicant and their record, does it make sense to deny them employment based on that? 3. Then Burden Shifts to EEOC to show that the employer refused to adopt a less discriminatory alternative RECAP for employer's burden: 1. Formal validation or targeted screen, and 2. Individualized assessment Then: burden shifts to EEOC -EEOC's argument: employer could have used a less discriminatory alternative 🡪 there was an alternative employment practice that would serve the employer's legitimate goals as effectively as the challenged practice involving criminal history -Cost and/or administrative burden does not weigh into EEOC guidance at all 🡪 expectation: employer should bear whatever burden it imposes Exceptions -Federal statutes/regulations: federal laws regulating financial industry, jobs involving security clearance -State/local laws don't provide same exception Courts have fought back against EEOC guidance 5th Cir: EEOC guidance is not binding in any respect *not binding in texas

Protections for Employers: 1. Breach of Contract

Breach of contract -Teacher case § D signed a contract but wanted to back out after getting an offer closer to her home. School said no -> caused her anxiety, health problems. She got a doctor note saying returning to the school would aggravate high blood pressure so she couldn't § Holding: breach of contract -> her problems were her own making so they don't excuse her from contractual liability § Damages: must make the victim whole. School mitigated damages and hired new teacher at higher rate than they hired D -> D must pay the difference Remedies § Specific performance is not available § Injunctive relief § Pay difference between harm caused and mitigated damages *non breaching party has obligation to mitigate damages Enforceable agreements § Non-competes § Non-solicitations; coworkers and employees (if reasonable employer would believe its solicitation; violation) § Confidentiality agreements: don't share the business's confidences [better to write it out] · Can protect customer lists, pricing information, processes, etc. by contract and it's enforceable · This is in addition to common law duty of loyalty § Intellectual property agreements · If employee creates something while working for the company, the company and employee both own the rights at least for as long as employee works there [best way, unless everything you say is the companies unless you get permission]

Protections for Employers: 2. Breach of fiduciary duty of loyalty

Breach of fiduciary duty of loyalty -All employees owe fiduciary duty of loyalty to employer § Lifelong obligation to keep information confidential (or as long as it remains confidential) o Feddeman § Prior to leaving an employer, you can make preparations -Nothing illegal about it even if they're moving to a competitor -You can make plans to compete § But you can't cross the line into crippling your current employer § Here: mass defection was organized, defendants provided resignation letters to coworkers ·-It was devastating to the employer -> more than just preparing to leave -It violates fiduciary duty owed to employer § You can tell coworkers "I'm leaving" but can't solicit them, invite them to come with you Dominion Tech Case · It's ok to prepare but wait until you're gone to actually start competing (including inviting others to come with you, assuming no non-solicitation agreement) o Fiduciary duty extends to protecting business confidences -Customer lists unless easy to get (Mileham) -On the margins of whether it is business confidence that must be kept (likely not a trade secret) -One way to protect against it being disclosed in a way you don't want: put it in a contract -Put it in confidentiality agreement with employee -Courts are wary of these claims because a lot of it is information that is just acquired from experience, which isn't a confidence **In order to be trade secret, customer list has to include more than publicly available data o Five column rule of thumb: if the list contains fewer than five columns of information about each customer, then it's probably not a trade secret

Immigrant Hiring Process

Citizenship and immigration status Immigration and Nationality Act (INA) Title 7 charges Applies to employers with 3 or more employees Rule: cannot discriminate on basis of immigration status in employment "We will hire Jamaicans but not Bolivians" or "we will hire citizens but not non-citizens" If a worker is authorized to work in the US 🡪 employer cannot discriminate based on country of origin or citizenship status If two individuals are equally qualified, employer can prefer a US citizen over a non-citizen Most cases: employers favoring US citizens over non-citizens Typical: employer requires non-citizen to produce certain specific kinds of documentation (more than what law requires) but doesn't require citizens to produce similar documents 🡪 higher bar for non-citizens to show authorization to work in the US Immigration Reform and Control Act (documentation requirements) Basic rule: employers cannot employ someone who isn't authorized to work in the US Employers cannot hire undocumented workers Collins Food International v INS: Constructive knowledge: Constructive knowledge is ok standard If it is obvious on its face that documents are improper, then employer can't hire someone But an employer is allowed to presume that the documents meet the standard 🡪 employer doesn't have to do governments job and ferret out illegal documents Law only requires that the documents appear genuine Employers must confirm that a worker can prove that they are authorized to work here I-9 form: US citizens and legal residents of US must fill it out Worker must fill it out either on day of hire or no later than first day of work Employer completes the rest within 3 business days of hire Form isn't sent anywhere; it is kept in employer records and must be available for inspection by government Completed forms must be retained 1 year past date of worker's termination or 3 years past date of hire (whichever is longer) No Match Letters = now called Employer correction notice letters (Aramark 9th cir) Does not amount to constructive knowledge Letter to employer: we are putting you on notice 🡪 this is a warning that someone may be working for you illegally Can put you in Collins territory with constructive knowledge e-Verify System by which employer goes online and knows right away if someone is authorized to work here *some states require this, be careful Process Employer plugs in information about employee 🡪 3 possible results 1. Employment authorized 2. Tentative non-confirmation (TNC): not yes, not no 3. DHS verification in progress Within 24 hours, you get "employment authorized" or TNC If employment authorized: good to go If TNC: employer must tell employee that that's the case Employee can contest it 🡪 employer refers them to federal agency Employee has 8 days to begin the process in order to resolve the problem If employee continues to work, it's against the law for the employer to take adverse action during the period in which the employee is working out the documentation problem If employer continues to employ someone when they get a TNC back and it doesn't get resolved (goes beyond the 8 days) 🡪 presumption that employer is employing them illegally e-Verify is mandatory for all federal contractors if contract is over $3000 H-1B visa: specialty occupations (lawyer, engineer, doctor, etc.) At a minimum: bachelor's degree needed Person granted the visa is limited to working for the sponsoring worker Employer must pay that worker at or above prevailing wage H-2B visa: temporary, seasonal workers Employer must apply for temporary labor certification in order to get into the program from DOL "I can't find workers in the US to fulfill this need" Must also certify that employment will not adversely affect wages or working conditions of similarly situated US workers

Worker Adjustment and Retraining Notification Act (WARN Act) 1) Basics 2) When It Applies 3) Notice 4) Remedies 5) Defenses

Covered employers: companies with 100 or more full time employees 1) Basic idea: if a plant closes or there is a mass layoff, employees are entitled to receive written notice no less than 60 days before their employment loss commences o Employment loss [mass layoff]: involuntary termination other than for cause that exceeds 6 months in duration or that is more than 50% cut of work hours per month that lasts for 6 months or more § Short term layoff (doesn't exceed 6 months) -> don't have to worry about WARN § Even if you aren't laying off, if you're cutting people's hours that lasts for 6 months or more -> employment loss 2) Applies when: § 1. Plant closing · Occurs when employer shuts down a work site leading to employment loss for 50 or more employees in a 30 day period · E.g. employer has a single place that will be shut down and it leads to employment loss of 50 or more employees -> even if not on same day, just over 30 day period § 2. Mass layoff ·-Reduction in force (not a plant closing because you are still operating) -Employer lays off at least 50 employees at a single site and they'll have employment loss within at least 30 days of one another · Also: the number of workers affected are at least 1/3 of the workers at the site in addition to 50 employee minimum 3) Notice § Assuming one of those happens, written notices have to go out to: · 1. Each affected employee o If organized workforce, then to the union rep for the union also · 2. Manager for state worker dislocation unit o VA: Virginia Employment Commission · 3. Mayor/board of supervisors chair in the place where workers are affected § Notice itself must be complied with strictly in terms of regulations, including telling employees why this is happening § Conditional notice is ok -If you're worried something may or may not trigger a plant closing/mass layoff: "if this happens, I'll have to lay you off" -Can happen a lot to gov't contractors at end of contract and they don't know if it will get renewed 4. Remedy for failure to comply § Aggrieved employee gets caught up to what they'd be entitled to: -Up to 60 days pay and benefits if you aren't given proper warning -If you give notice 15 days in advance instead of 60, you get pay and benefits for the other 45 days § Legal fees paid over and above the benefits to which they're entitled o No fed agency enforces this § It is a statutory right that exists for employees to exercise à self-help mode o Class actions are ok o Bench trials: no right to jury o No individual liability for boss -> the entity/company who employed you is the only liable party 5) Statutory defenses § 1. Faltering company defense ·-Applies only to plant closings -If company's efforts to obtain capital and business have failed despite its best efforts -> giving proper notice would've prevented company from getting the capital needed § 2. Natural disaster · Big flood, fire, tornado, the business is blown away, etc. · No 60 days' notice possible · "we are closing altogether or will be closed for several months" § 3. Unforeseeable business circumstances (more common) · Arises when employer can point to sudden, dramatic, and expected action or condition outside employer's control that blindsided them -We couldn't see it coming ->but courts are strict on construing it -if not probable (more likely than not), warn act not triggered

Disability ADA (title 7) A) Basics B) covered disabilities C) Test D) Defenses

Disability Americans with Disabilities Act (1990) A) Scheme: protect qualified person with a disability Applies to employers with 15 or more employees ADAAA (2011) P doesn't have to be "severely restricted" in doing a major life activity -It's enough if P has a difficulty doing something that the rest of the population can do with little or no problem -Disabled person must still be able to perform the essential functions of the job even if they require accommodations -Service/support animals 🡪 no EEOC guidelines; it is case by case --Employer must wait to inquire about accommodations until after they make conditional offer -Employer had a duty to offer a reasonable accommodation if it knows or reasonably should have known that the employee is disabled and needs one B) Covered Disabilties 1. Physical or mental impairment that substantially limits one or more major life activities 2. A record or history of such impairment -I had cancer 3. Being regarded as having such an impairment (employer things you have one) 4. Association with those with a covered disability [wife has cancer] 5. Mitigating measures: look at P at unmedicated state 6. Transitory [got injured] impairment: 1. No. 4. no. 3 months only duration 7. Episodic: Treat as if an active state C) 1. Qualified person Person must be able to perform the essential functions of the job Employer must know the essential functions of the job 🡪 use job descriptions that provide the essential functions 2. Employer must provide reasonable accommodations [fact driven; also depends on the companies resources] 3. Standard: undue burden (more than de minimus compared to religion) 4. interactive process Employee: "I need _____." Employer: we can't do that, but what about _____?" 🡪 supposed to be a collaborative, interactive process to reach an accommodation D) Defenses Direct threat defense: employer doesn't have to accommodate someone if they pose a threat to health and safety of themselves or others Misconduct Drugs/alcohol: status of being addicted to drugs or alcohol is protected but use is not. Being an alcoholic and getting a DUI: not covered -Has anti retaliation

Unemployment Compensation

Disqualified for unemployment -Voluntary quit without good cause -Misconduct Examples: Good cause Case:Jaime Business moved. P wanted to keep working but had no transportation. She ended up quitting Holding: yes qualified -> not voluntary quit -Different than an employee moving Case: Quik N Tasty Employer said she had to work on Monday, but she said she couldn't bc daycare was closed. She ends up quitting Holding: not qualified -> it was a voluntary quit She had a compelling reason for quitting (had to take care of kids), but it's nothing that the employer did Case: Tri County Youth -She was being subjected to sexual harassment at work; Holding: qualified -> not a voluntary not *public reprimand is not good cause to quit *contract ending is not a voluntary quit § Virginia Reasonableness standard for (1) voluntariness and (2) good cause Voluntariness [burden on employer]: claimants actions were unconstrained by interference and compelled by another's influence spontaneously resulting from free choice then burden on employee to show Good cause; pressure of real, substantial, and unreasonable circumstances compel the claimant to leave their employer: reasonable person in the same circumstances would have done the same thing ****employee must make every effort to remedy the problem complained of -All reasonable steps must be taken to fix it, have to demonstrate that they want their job, they're trying -Leaving to take a better job or to become self-employed -> no WC -Following a spouse -> no WC Exception: spouse is on active duty for change of station and the new duty station is not readily accessible to non-duty spouse -If terminated in response to resignation -"I'm putting in my two weeks." "Fine, you're fired" -> get benefits for those two weeks Opposite situation: employer says "we have to let you go at the end of September" but employee quits immediately -z. voluntary quit, no WC Employees: don't jump the gun -> let employer fire you so you can get WC Misconduct (work related) -> no WC § Virginia rule · (1) deliberate violation of a company rule designed to protect legitimate business interests of the company or employer, or · (2) someone's acts or omissions are so prevalent that it constitutes willful disregard of employer's interests -It may not be intentional but employee just doesn't care § It can be one act of gross negligence on the right set of facts § But a single act of regular negligence is not misconduct -Not just that an employee is bad at their job Case: Pesce: drove truck at work but got in 4 accidents in 3 months -> not misconduct § It wasn't willful or wanton disregard; he's just a bad driver Misconduct: -Absence and tardiness without notice if recurring, repeated -Insubordination, especially if recurring -Confirmed drug test if company has known drug policy -Workplace harassment -Willful failure to perform satisfactorily by someone who is capable of doing so -They just don't care Not Misconduct: -Marginal attendance: calling out sick, arriving late once in a while -Poor performance or negligence: they're bad at their job -Still not entitled to keep the job, but if they're fired -> can file for WC Suitable employment Rule: if offered a suitable job while getting unemployment benefits, the person must take it Virginia rule: look at [the individuals] (1) skills, training, and experience of employee and (2) length of unemployment § As time goes on, the person has to widen the scope of suitable jobs § Subjective and objective inquiry into the nature of the position -Consider risks to employee's health, safety, and morals -Consider geography -Reasonably comparable wage is a factor but not determinative o Not entitled to make the same wage as in previous job o It's based on what's reasonable according to the market Statute [for suitability] § 1. Job isn't suitable if it's open because of a labor dispute or strike -> if they'd be the scab filling the position, they don't have to take that job § 2. Job isn't suitable if it requires the person to join or not join a union § 3. Job isn't suitable if in this market it pays $50k but the employer is offering $25k -> lowballing is not ok

Contractor v. Employee

Economic Reality Test; Employee dependent on the business he renders service too? (lauritzen) a. 2nd Circuit factors 2. Right to control (Reid) 3. IRS factors 4. Entrepreneurial 5. ABC Test (Dynamex A) DOL Factors for economic reality (2nd cir pretty much the same?): Control, Opportunity from investment/profit loss, Skill/independence, duration, integral work to business (COSDI) Ried Factors 1. Ried factors: Degree of control over the worker 2. Opportunity for profit/loss and investment in the business that the worker had 3. Degree of skill and independent initiative needed to do the work 4. Permanence/duration of the working relationship 5. Extent to which the work is an integral part of the employer's business. B) IRS Factors: Behavior (instruction to worker), financial (unreimbursed business expense), Relationship (way parties would describe it) C) FedEx (DC Circ): Test: whether the worker has significant entrepreneurial opportunity for gain or loss D) ABC test: Presumption of employee unless employee 1) proves no control 2) outside usual course of work from entity 3) engaged in customarily independent trade

FLSA Exceptions

FLSA exemptions Two Prong Test: (1) salary and (2) duties Exception: family businesses where every worker is a family member Salary = Predetermined amount that the worker is going to get per week -deductions for one day or longer absences for personal reasons -you can deduct a penalty (punish) for major safety violations -infractions for work conduct rules provided the deduction is not for performance or attendance (must be pursuant to a policy, not ad-hoc) Duties White collar exempt 1. Executive Salary: at least $684/week or 33k year. § Must direct at least 2 full time employees § Must have the power to hire, hire, demote, promote or a significant role in those decisions (management) even if you don't have the final say § Must direct at least 2 full time employees 2. Administrative at least $684/week or 33k year Eg. recruiting folks, advertising dept § Primary duty: non-manual or office duties related to management of employer -Support/back office work § Routinely exercise discretion and independent judgment/decision making; not routinely supervised 3.Learned/creative professional; at least $684/week or 33k year specialized knowledge, advanced learning with prolonged course ·-Law school, med school, etc. --doctors, nurses, pharmacist, staff accountants (need to practice your degree) Creative Profession: original or creative work which depends primarily on invention, imagination, and talent § Teaching, tutoring, instructing, or lecturing for a school system or educational institution 4. Highly Compensated employees: $107,342 -f your primary duties involve office or non manual work and you customarily and regularly perfrom at one one of the duties of an exempt, administrative or professional one of those three white collar ones 5. Outside sales workers (non-white collar) 6. Exempt computer professionals; These workers can be paid hourly as long as it's at least $27/hours 7. Home workers -Someone who is working from home and the nature of the work is such that it's hard to track hours [cant be independent, no control on their hours] 9. Seasonal workers -> exemption if: 1. Amusement or recreational establishment, and 2(a) you don't operate 7 months out of the year (= you operate 5 or fewer months/year), or 2(b) your income for 6 months/year is greater than 1/3 of the other 6 months 8. Other exceptions -Commercial seamen do not get overtime -long-haul truckers · Farmers · Maple sap collectors · Worm farmers · Prisoners if they are working for prison -But does apply to fugitives from prison

FTC

FTC: Federal Fair Credit Reporting Act (FRCA) Applies whenever an employer obtains a background report from or through a third party Doesn't apply if the putative employer/employer is doing its own background check Enforced by FTC Can be individual suits or class actions Aggrieved individuals can sue directly, don't have to go to FTC Damages -Compensatory -Punitive -Statutory damages of $100-$1000 for each willful violation -Attorney's fees and costs Applies to consumer reports Consumer reports (not necessarily a consumer report) come from third parties Definition: "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit-worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for employment purposes..." Includes checks of criminal and civil records, driving records, civil lawsuit history, etc. = if employer gets a report from some third party about an individual's character, general reputation, personal characteristics, or mode of living which it will use as a factor in establishing their eligibility for employment 🡪 that is a consumer report and employer is subject to FRCA Applies to independent contractors and to employees There are limits on what the reporting agency can share with the employer 🡪 can't share -Bankruptcies older than 10 years -Arrests or records of civil proceedings that are older than 7 years unless it's a job with a salary of more than $75k/year -Accounts placed for collection that are older than 7 years -But no time limit on conviction records What employer has to do: 1. Notify the applicant that a check is being done -The notice must be in a separate document from the application Must certify that the check will be used for employment purposes only 2. Obtain written permission of applicant to do so -It can be on the separate disclosure form from #1 but it must be separate document from the application "we are going to as part of our process do this kind of check and it will be for employment purposes but you need to agree to it or we won't do it" 3. Once a report is received back by the employer, if "adverse action" is contemplated that is based at least in part on information from that report, employer must notify the applicant that adverse action is planned (before they take the adverse action) Adverse action: denial of application, termination of someone who is already employed, or some other unfavorable change in their employment status Employer must wait reasonable amount of time before taking adverse action 🡪 5 days is acceptable standard Employer must provide applicant of report they got and a summary of their rights, have to inform applicant of their right to obtain the report from the agency and to challenge its contents to the reporting agency, must provide contact info to the agency, advise applicant that agency didn't make decision as to their adverse action so they know the agency won't tell them why adverse action was contemplated 4. Once adverse action has been taken, employer must provide notice to the applicant (second notice) that the action has been taken It can be oral, in writing, or electronically Must advise the applicant of their right to dispute it They can't dispute it with the employer 🡪 have to take it up with the reporting agency *Recommended Practices: -Avoid "one size fits all" policies -Review Applications -review background screening polices and procedures (narrowly tailored) -narrow positions for which checks are run (not every position needs to be checked) -check after conditional offer made -review what is requested to a 3rd party provider -determine how searches are done -use only accredited agencies -keep information confidential -check state/local laws

Freedom in the workplace A) Basics B) Video Surveillance C) Audio D) Personal Devices E) Emails F) Defenses

Freedom in the Workplace A) -Privacy is a creature of state law -VA privacy law: cannot use somebodies name or likeness for commercial purposes without their permission [thats all] -First amendment does not apply to private employers B) Privacy / surveillance -Video surveillance: generally ok - California: unless a) it's in a place where a person reasonably expects privacy and b) it occurs in a manner that is highly offensive Connecticut and deleware: written notice to employees 2) Audio surveillance: not ok [video surveillance without audio is ok] -Federal Wiretap Statute A) Single consent statute: if one participant in the conversation consents -> that's ok -B) Two party consent states: many states require consent from all parties 3) Electronic Privacy: Listening to employees' phone calls: prohibited by Electronic Communications Privacy Act (ECPA) unless consented to 4) Personal Devices -Keystroke tracking devices: ok -can tell employees they can only use devices for work -provider exception: applies if it turns out that its for work purposes 5) Emails Title I: prohibits intercepting electronic communications during transmission Title II (stored communications act): prohibits intercepting electronic communication -One cannot intentionally access, without authority, a facility for which electronic communication is provided (e.g stored emails/not read but if read and left on system, outside of title II but 4th circuit says its covered by act) 6. § ECPA defenses 1. Consent o E.g. when you log in at work, a screen pops up that says you consent to monitoring or employer gets your consent 2. Provider exception o If the company system is being used o Courts are split on whether this applies to attorney client privilege

Volunteer v. Employee

General rule: one cannot work as an unpaid volunteer for a private, for-profit entity Alamo Foundation: in order to be a volunteer, an individual must work without promise or expectation of compensation but solely for his personal pleasure 1. DOL factors: employee v. volunteer for charitable organization Factors 1. Is the entity that will benefit or receive volunteer's services a non-profit? 2. Is the activity less than a full time job for the worker? 3. Are the services offered freely without pressure or coercion? Right to control 🡪 the more direction on how the workers are to do their work, the more they look like employees -Volunteers can be paid a stipend but it must be nominal in nature. Stipend isn't nominal if it's a substitute for compensation or is tied to one's productivity "Nominal" 🡪 no more than 20% what would be paid to a bona fide employee doing the same work 2. DOL test 6 factors (all must be met) 1. Training is similar to training that would be given in an educational environment 2. Training is for the benefit of the trainee 3. Trainee doesn't displace regular employees but works under close supervision of existing employees 4. Employer providing the training derives no immediate advantage from the trainee's activities and on occasion its operations may actually be impaired 5. Trainee is not necessarily entitled to a job at the end of the program 6. Employer and trainee understand that the trainee is not entitled to wages for the time spent training If missing one factor 🡪 employee 3. 2nd Cir. Glatt Factors 2nd cir. Primary Beneficiary Test: Whether the tangible or intangible benefits provided the intern are greater than the interns contribution to the employers operation (is the PRINCIPAL benefit with he employer? AND the training does not have to look like pedagogy. 1. Parties understand there is no expectation of compensation 2. Internship provides training similar to that in an educational environment 3. Whether internship is connected to formal educational program and receipt of academic credit 4. Whether internship corresponds with academic calendar, accommodating student's school commitments 5. Duration of the internship is limited to the period when the intern is provided beneficial learning 6. Whether the intern's work displaces paid employees 7. Parties understand that the intern is not entitled to a job at the end of the program

Interns

Interns: more academically focused 2nd Cir. Glatt Factors 2nd cir. Primary Beneficiary Test: Whether the tangible or intangible benefits provided the intern are greater than the interns contribution to the employers operation (is the PRINCIPAL benefit with he employer? AND the training does not have to look like pedagogy. 1. Parties understand there is no expectation of compensation 2. Internship provides training similar to that in an educational environment 3. Whether internship is connected to formal educational program and receipt of academic credit 4. Whether internship corresponds with academic calendar, accommodating student's school commitments 5. Duration of the internship is limited to the period when the intern is provided beneficial learning 6. Whether the intern's work displaces paid employees 7. Parties understand that the intern is not entitled to a job at the end of the program

Title 7 National Origin/Ethnicity or Race

National Origin = discrimination of an individual because of his/her ancestors, from a certain place or has a physical or cultural characteristic of a particular national origin group (can be a former place or a region). Ethnicity= sharing a common language, culture, ancestry, race Exception (the way around it): show business necessity -Public safety: "In emergencies, we speak English"/where english is required -Business efficiency: But the English-only rule can never extend to non-work (unrealated to work) speech (e.g. water cooler talk, people in the break room) 9th Cir: nothing in Title VII prohibits discrimination based on language 🡪 make disparate impact case instead -Fine: he had an accent, not that accent. -Fine: Employer said "go back to where you came from." employer didn't single out a specific country so it's not discrimination based on national origin

Negligent Hiring

Negligent hiring Forms 1. Hiring the wrong person 2. Hiring a dangerous person Malorney Facts: truck driver picked up hitchhiker, raped her. Had a felony history of sexual assault. Question: whether company knew or should have known that the guy was unfit for the job Company: we had no legal requirement to check the facts on his application Analysis As a matter of public policy, company didn't show that the cost of checking up would've been too burdensome or expensive compared to the obvious public benefit of it Foreseeability issue is what jury would've looked at Court: there's an assumption that trucking companies should know that truckers will pick up hitchhikers despite rules against it (Abel: yikes) Holding: court dismisses company's MSJ Negligent hiring is different than respondeat superior 🡪 can bring an action for both at the same time Respondeat superior: liability of employer for tort committed by employing flowing to you because they're doing it on your behalf (at least theoretically) Negligent hiring: extends to actions taken by employee outside the scope of their employment It has nothing to do with employee's job 🡪 employer is liable for employer's own conduct, not the employee's conduct It's hiring the person in the first place Virginia Failure to investigate a potential employee's background is not sufficient to establish employer liability (could be ammo in proving liability but not enough) P has to show that employee's propensity to cause injury to others was either known or should have been discovered by reasonable investigation Elements of negligent hiring 1. Employment relationship existed 2. Employee was unfit considering the nature of employment and the risk posed by the employee to those who would foreseeably associate with in the course of his employment The employee is unfit because of the risk that they pose to those that they will foreseeably come into contact with when doing their job What does the job require? Who will they come into contact with? 3. Employer knew or should've known of the employee's unfitness "knew" is easy but "should've known" can be tough 4. Employee's act or omission (which caused P's harm) was the cause in fact and proximate cause of P's injuries Injuries to P to support a negligent hiring claim must be physical in nature Psychological/emotional harm doesn't work No Virginia law for negligent training

Non Competes

Non-competes (its a contract) (creature of state law); complete bans in CA, OK, ND; 11 States based on income) -Prevents workers from jumping to a competitor by setting limits on what an ex-employee can do when they leave § Ex-employees already have a common law fiduciary duty of loyalty not to compete when the employer when they're employed o Versus non-solicitation agreement § Non-compete agreement: if employee leaves, they can't solicit customers · This can be a low threshold · Posting on LinkedIn that you got a new job -> ok · But saying "I love it here, come join me" -> no Common rules 1. It is a contract -> contract rules apply -Ambiguity is construed against the drafter (if that is the rule in your state) 2. Requires consideration -Employment is consideration, including continued employment 3. Disfavored in the law because they are restraints on trade o Virginia § But employer can still use confidentiality agreements to protect trade secrets, business confidences § VA Effective July 1, 2020: ban on non-competes for (1) low wage employees (under the average weekly wage of the commonwealth; was 67k last year), (2) trainees and interns, (3) independent contractors paid at hourly rate less than Commonwealth's median age, and (4) employees paid primarily based on sales commissions ·But it's not retroactive -> the non-competes written before July 1, 2020 are valid if enforceable Low wage employee: if average weekly earnings (from previous 52 weeks or as long as possible) is less than the average weekly wage of the Commonwealth § Violations -Employees can bring civil suit against previous employer -2 year SOL -Anti-retaliation provision § Remedies -Void the contract -Enjoin employer from trying to enforce it (injunctive relief) -Damages compensation, attorneys' fees and costs, § The Commonwealth itself also fines the employer (and post notice) o Put the non-compete in a separate agreement because otherwise it could drag down an otherwise valid agreement o Basic criteria for enforceability § Three criteria · 1. It is no more broad than necessary to protect employer's legitimate business · 2. It does not unduly burden an employee's ability to earn a living · 3. It doesn't violate public policy (gave example of a town with a few doctors) § Reasonableness: Three factors o 1. Temporal scope § Some states set a cap § Virginia: no cap, just case-by-case · Typically 6 months to2 year § Be able to justify why you need this much time o 2. Geographic scope § At some point, you are outside your market [depends on the business, where can the business be harmed] § One case: non-compete applied to entire Commonwealth. Court said no -> the business didn't operate in every county in the Commonwealth, so don't include those counties § Radius for # of miles may be better o 3. Functional scope -> duties that cannot be performed § Janitor rule: [what you do for the competitor matters; so if you're a CFO being a janitor for the competitor, you are fine] don't prohibit employees from working in any position for competitors -> make sure the prohibited duties make sense § VA Blue Penciling not allowed; makes contract void (5 states allow it) **if the noncompete has a choice of law state that allows blue penciling -> its ok but has to have a relationship to the business) § non-competes are assignable (majority; some states say non assignable unless employee agrees) § lawyer non competes are not allowed § doctors, maybe depending on state, public policy concerns § garden leaf -> way around it, still employer but no work and still get paid -Burden is on employer to prove that all are reasonable -Must articulate a reason for each -> not just "it's standard"

A) OSHA General Duty clause B) Test C) Defense D) Safety Instructions E) Product warnings

OSHA: does not have anti relation, but has whistleblower clause *guns are fine to be on the property because of OSHA is silent. (half of states have a has a gun law that states employers cannot prohibit employees from bringing guns on employers property) Protection to employees: he Occupational Safety and Health Act affords an employee the right to walk off the job if the employee reasonably believes that the Act does not sufficiently protect against death or serious injury. A) General Duty Clause [sports does not get coverage, entertainment does] *when OSHA is silent § Law will interpret regulations to give full effect to the law, but sometimes a regulation doesn't exist -> when there is no regulation on point, the General Duty Clause applies § Definition: each employer shall furnish to each employee employment a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees B) Test Seaworld (1) an activity or condition at the workplace was hazardous to the employee, (2) either the employer or the industry recognized the hazard, (3) the hazard was likely to or did actually cause death or serious physical harm, and ( 4) there were feasible means to eliminate or materially abate the hazard. Abatement is feasible if it is economically and technologically capable of being done. [reasonable person in the industry] *mentioned Preventing Workplace violence in Healthcare has a rule. C) DEFENSE unpreventable employee misconduct defense (Brennan v. OSHRC) 1. The employer has rules to prevent the violation 2. it communicated them to its works 3. it has taken steps to discover violations 4. t has effectively enforced its rules when violations have been discovered *death automatically gets a citation? D) Safety instructions (Superior custom cabinet co); -the instructions must be specific enough to inform employees how to recognize and avoid the hazard -should be modeled on applicable regulation E) Product warnings: (Durez case): Under the Occupational Safety and Health Act, manufacturers are required to disclose all potential health risks from exposure to hazardous chemicals (MSDS sheet), regardless of likelihood of harm. *best to include everything.

Personality testing

Personality & character testing: a lot of employers do this (though there may be state law concerns) Ability testing Perfectly ok to ask someone if they can do a task as long as it's related to the job Biggest risk: disability discrimination or disparate impact for gender discrimination Disabilities: must offer reasonable accommodation if it is needed

Title VII

Prohibits discrimination on the basis of race, religion, national origin, sex (orientation and transgender), color Requirement: 15 employees or more [remember this for all Title 7] D: employer P must show adverse action [based on status] Adverse action must be based on a protected status Status is typically immutable (includes religion and gender) A) Procedure 1. Making a charge to the EEOC (if state does not have a deferral agency, 180 days of last adverse act; if it does 300 days to file) 2. If there many have been discrimination 🡪 EEOC must engage in conciliation [both parties and EEOC as mediator] 3. EEOC gives a right to sue letter or you can demand a right to sue letter after 180 days. Must sue within 90 days of receiving it. B. 1. 42 USC § 1981: discrimination on the basis of race Prohibits discrimination in contracting on the basis of race Applies to all employers regardless of size Only applies to intentional discrimination 🡪 disparate treatment, not disparate impact. Damages: no cap on compensatory or punitive 4 year SOL C) 4. Virginia Human Rights Act (VHRA) Applies to employers with 5 or more employees Protected status must only be a factor in the adverse action - doesn't have to be the primary factor -No statute of limitations -Can get a right to sue letter from the C) Anti-retaliation provision When settling, there can't be any clauses saying the employee can't bring a later claim or that P is prohibited from helping the EEOC in a future investigation EEO-1 reports All employers with 100+ employees must fill out an EEO-1 report It breaks down the employer's job force by categories of race, sex, etc. All government contractors with more than $100k in contracts must fill it out too

References

References There is no duty to disclose information about a former employee but if they do, they cannot affirmatively misrepresent Just sit on the information and don't share it (as long as there is not a special relationship) 🡪 just stay mute, you don't have to volunteer unfavorable information. Defamation suits Defenses: truth and opinion Defamation arises in cases of misrepresenting facts: have you strayed from opinion into factual representations? Virginia Can't willfully or maliciously prevent or attempt to prevent by word or writing directly or indirectly an ex-employee from obtaining other employment Excluded from this: truthful statements on the reason for discharge or the character, industry, or ability of someone who voluntarily left For someone who was fired: can say why someone was fired For someone who quit: can talk about their character, industry, or ability Statutory protection for employers who give references (majority rule): Former employer is allowed to provide a prospective employer information about someone's professional conduct, the reasons for separation, their job performance, information contained in a written performance evaluation Presumption of good faith and immunity that attaches to giving references so long as you're providing it to current or prospective employer Presumption can only be rebutted by clear and convincing evidence that (1) the information was known to be false, (2) there was reckless disregard to whether its false, or (3) with intent to deliberately mislead Best practices: have one reference source at the company, require the request to be in writing, require the individual about whom the reference is being requested to provide a waiver in writing "I release you from liability for this, please tell the truth" Otherwise, limit it to name, rank, and serial number General rule for losing qualified privilege under common law** (exam) Employer loses qualified immunity if plaintiff shows (1) ill will or actual malice, (2) excessive publication, or Posting it on social media, not just giving it to prospective employer (3) reckless disregard for the truth Defamation requires a third party 🡪 your former employer can't be badmouthing you to your agent (e.g. someone posing as a prospective employer)

Religion

Religion: Moral and ethical beliefs as to right and wrong, sincerely held, with the strength of traditional religious views [ANY strong held belief even atheist] Theories of discrimination 1. Disparate treatment Can use McDonnell Douglas 2. Disparate impact (rare because employers have a duty to accommodate) 3. Failure to accommodate 4. Failure to permit exercise of religion (related to disparate treatment) Employer has a duty to accommodate unless it imposes undue hardship Undue hardship: very low standard for employer [example: hostile environment) 🡪 [more than] de minimus Framework P's prima facie case: 1. P has a bona fide religious belief that conflicts with an employment requirement 2. P informed the employer of this belief 3. P was disciplined for failure to comply with the conflicting employment requirement Then, burden shifts to employer to show that it could not accommodate P's religious beliefs without undue hardship *Scarf casing holding

Joint Employment

Two or more entities are joint employers of a single workforce if: Common denominator: whether the putative joint employer exercises sufficient control over the worker when they're doing the work at issue 1. NLRB: (a) Browning Ferris and (b) Hy-Brand 2. 4th Circuit 3. EEOC 4. FLSA: (a) 4th Circuit factors, (b) 2nd Circuit factors, (c) DOL factors 1. National Labor Relations Board Browning Ferris Standard (1) they are both employers within the meaning of common law, and' (2) they each have the power to share or codetermine those matters governing the essential terms [even if tis indirectly] and conditions of employment Essential terms and conditions: hiring, firing, discipline, supervision, and direction; number of workers needed; schedule; seniority and overtime; work assignment Hy-Brand Standard (Republicans) *same but Putative joint employer must have actually exercised the requisite control, and must have exercised it directly [requires sunstantial, direct immediate control over one or more essentual terms] ***franchises are not joint employers unless they have great control *day to day control *very rare 4th Cir Factors 1. Authority to hire and fire the individual 2. Day to day supervision of the individual, including employee discipline 3. Whether putative employer furnishes the equipment used and place of work 4. Possession of and responsibility over their employment records, including payroll, insurance, and taxes 5. Length of time 6. employer provides formal or informal training 7. Whether their duties are akin to regular employee's duties 8. Whether they are assigned only to putative employer 9. Whether the individual and putative employer intended to enter into employment relationship -None of the factors are dispositive -Common law element of control remains principal guidepost 3. EEOC (use for federal anti-discrimination statutes) A company will qualify as an employer if, under the following factors, it has the right to exercise control over the work's employment: 1. the firm or the client has the right to control when, where, and how the worker performs the job; 2. the work does not require a high level of skill or expertise; 3. the firm or the client rather than the worker furnishes the tools, materials, and equipment; 4. the work is performed on the premises of the firm or the client; 5. there is a continuing relationship between the worker and the firm or the client; 6. the firm or the client has the right to assign additional projects to the worker; 7. the firm or the client sets the hours of work and the duration of the job; 8. the worker is paid by the hour, week, or month rather than for the agreed cost of performing a particular job; 9. the worker has no role in hiring and paying assistants; 10. the work performed by the worker is part of the regular business of the firm or the client; 11. the firm or the client is itself in business; 12. the worker is not engaged in his or her own distinct occupation or business; 13. the firm or the client provides the worker with benefits such as insurance, leave, or workers' compensation; 14. the worker is considered an employee of the firm or the client for tax purposes (i.e., the entity withholds federal, state, and Social Security taxes); 15. the firm or the client can discharge the worker; and 16. the worker and the firm or client believe that they are creating an employer-employee relationship. No factor is decisive; don't have to satisfy a majority 🡪 can't simply count the number of factors to determine who qualifies as an employer of the worker Joint employment Tests FLSA The test to be used will depend on the jurisdiction 4th Cir: Six Factor Test 1. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, whether by direct or indirect means; 2. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to—directly or indirectly— hire or fire the worker or modify the terms or conditions of the worker's employment; 3. The degree of permanency and duration of the relationship between the putative joint employers; 4. Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer; 5. Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another; and 6. Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll, providing workers compensation insurance, paying payroll taxes, or providing the facilities, equipment, tools, or materials necessary to complete the work. List is not exhaustive; use totality of the circumstances 2nd Cir: Four Prong Test 1. Interrelation of operations 2. Centralized control of labor relations (most important prong) 3. Common management 4. Common ownership or financial control DOL: Four Factor Test Does the potential joint employer actually exercise the power to: 1. Hire or fire the employee 2. Supervise and control the employee's work schedules or conditions of employment 3. Determine the employee's rate and method of pay 4. Maintain the employee's records No factor is determinative The more that power is exercised, the more likely the entity is a joint employer (Focuses on actual exercise of power

Virginia 1) Whistleblower and 2) Wrongful Termination in violation of Public Policy

Virginia whistleblower protection statute (part of Virginia Values Act) - Employer cannot fire or take retaliatory action if employee: 1. Reports good faith violation of state or federal law to supervisor or any government body or law enforcement official 2. Is required to participate in a government investigation, hearing, or inquiry 3. Refuses to engage in a crime or act that could be subject to criminal liability Also protected under Bowman/Lockhart -> pick common law or statutory remedy § 4. Refuses an employer's order to perform an action that violate state or federal law or regulation § 5. Provides information to or testifies before government body Boils down to: (1) refusing to do something illegal, (2) reporting violation of law, or (3) participating in an investigation - Employee can go straight to court - 1 year statute of limitations 2. Virginia: wrongful termination in violation of public policy § Bowman/Lockhart: common law claim for wrongful termination based on public policy is allowed in Virginia Bowman: workers fired for voting no on a merger -> protected activity Lockhart: workers fired for making racial and gender discrimination claims -> protected status ·But: the claims were severely limited by the old Virginia Human Rights Act; if its in here, you have no violation of public policy claim § Three bases for common law tort claim for wrongful discharge in violation of public policy; also called Bowman Lockhart claim · 1. Exercise of a statutory or right (Bowman) · 2. Public policy was expressed in a statute and you're in the class that is intended to be protected by that statute (Lockhart) · 3. Refusing to engage in a criminal act (under VA law) § There is individual liability under Bowman/Lockhart Entity is liable · If boss, as an individual, engages in the conduct that is prohibited, there can be individual liability § Bowman/Lockhart is much less relevant now because of Virginia statutory protection · Virginia Human Rights Act: much better remedies and broader application, more attractive than applicable federal statutes · Virginia Whistleblower Act: 5 protected actions (above in statutory section)

NLRB

a) Basics Jurisdiction: Private section employees and US Postal Serice SOL 6 months S7: Concerted Activities for mutual aid and protection enforcement through S8(a) *any exercise that will chill an exercise of s7 rights *workplace rules: if they can be interpreted as infringing on exercise S7 rights, its a violation Work Place Rule categories Category 1 : Generally lawful eg rule about being civil in the workplace, no photography or recording is fine. Confidentiality rules are generally ok unless misused by the employer. Category 2: Individualized scrutiny: Broad Confidential rules. EG Barring bad comments about management Category 3: unlawful Severance agreements with nondisparaging clauses and relieving any claims against employer, violates S7 rights, 2) Defenses: Supervisor, disruptive effect (so disloyal, reckless or maliciously untrue or you lose protection); Lance steel factors: a) place in the discussion, b) subject matter, nature of the outburst, c) whether the outburst was in any way provoked by an Unfair Labor practice Ways around it: DISCLAIMER: none of these policies are intending to infringe or deny any employee of their S7 rights.

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Unemployment Compensation

each state has its own system (paid through payroll tax) 1) Purpose: provide temporary compensation to those who are out of work through no fault of their own -Someone can't get unemployment benefits if it's their fault that they're out of work 2) Basic scheme to get benefits 2 prongs: § 1. Qualified for benefits -> one-time determination · Quitting voluntarily -> no · Fired for misconduct: -> no § 2. Eligible for benefits -> week to week determination -Refers to someone's being 1) able to work, 2) availability for work Able to work § Physical and mental ability to perform salable service Available for work § Idea is: if there was a job available, that person could be there working § Person on UE benefits must: -Submit at least three job applications each week -Register with VEC -> be on job board for employers § If person can't pass substance abuse test and it's part of the job requirement -> not available for work that week 3) Virginia o Benefits are paid by the claimant's last 30-day employer § Employers: get rid of bad employees before 30 days § 30 days: 30 working days or 240 hours -> if you work 15 hour days, it won't have to be 30 days (VA two quarters in the previous 4 quarters, and earned 3k in the previous two quarters) *if two numbers in the last month, go with the higher one -If someone makes more than $50/week while they're on unemployment, anything above the $50 is taken off of their benefits -Max out on benefits after 26 weeks -> unemployment benefits stop at some point -Max $378/week, min $50/week 4) Severance pay § It is taken out of unemployment benefits only for the week the person receives it § Employers: spread it out week-by-week instead of one lump sum o If someone is overpaid on unemployment benefits, they have to pay it back 5) Procedure o Make a claim to Virginia Employment Commission § Have to wait one week after being fired before making the claim to VEC § No benefits during this week o VEC deputy makes an initial determination of whether someone is qualified and eligible 6) Qualified Leave for medical reason: if someone can't work for medical reasons, they're still qualified but employer doesn't get tagged for it on the payroll tax § VEC sends a letter to the last 30-day employer Employer fills out (1) wages form and (2) why worker left Employer: we had good cause § Deputy then makes the determination about whether the person is qualified -Virginia: phone hearing and paperwork review o If one side misses the hearing, it goes on anyway with just one side's testimony o Often employers don't contest it, so they don't show up § Deputy issues written decision with base period, base pay, whether someone is qualified · Unless an appeal is taken, this decision is final within 30 days 7) Appeal § 1. VEC Appeals Examiner -De novo review: start over again, it's like a trial -Written decision which becomes final within 30 days unless appeal § 2. Appeal to full commission -Limited to the record, not de novo review -Commission can allow appeals examiner to get more facts (rare) -Written decision which is final within 10 days of mailing -> tell the commission within 10 days if appealing § 3. Appeal to Virginia circuit court · File suit in circuit court within 30 days of commission's mailing the letter § 4. Appeal to Virginia court of appeals -Last stop, this is the end -Evidence gathered for these proceedings can't be used in other proceedings (civil or criminal) -Plaintiff's attorney's fees must be approved by the Commission -Not deducted from award -P must pay only if commission approves the fee § Labor disputes -If unemployed because they're on strike -> not available to work, so no UE benefits - That is what union strike funds are for -If there is a strike at the factory causing it to close but they weren't involved -> yes UE benefits § If receiving UE benefits from another state -> can't also get it in Virginia § If in jail -> no UE benefits § If undocumented person -> no UE benefits in Virginia

Post-Employment Issues: Protections for Employers

if ex-employer feels they've been wronged by ex-employee, claims available (pick as many as possible): 1. Breach of contract: if there is employment contract (not at will employment) 2. Breach of fiduciary duty of loyalty 3. Tortious interference with contract or business 4. Common law conspiracy: if employee conspires with other employees or with new employer 5. Statutory conspiracy 6. Misappropriation of trade secrets 7. Computer trespass