Compliance Final

What issues can arise when defining an employer?

- An entity claims to be a private membership club (Title VII exempt) - The entity is a multinational company - The entity is covered under the Rehabilitation Act of 1973.

What four components comprise a Prima Facie Disparate Treatment Discrimination case?

- Applicant belongs to a class protected under Title VII. - Applicant applied for and was qualified for a job for which the employer was seeking applicants. - Applicant was rejected and, after the rejection, the position remained open. - Employer continued to seek applicants with the rejected applicant's qualifications.

What are four exceptions to the At-Will Doctrine?

- Bad faith, retaliatory termination may serve as a violation of public policy. - Termination in breach of the implied covenant of good faith or fair dealing. - Termination in breach of some other implied contract term. - Termination in violation of promissory estoppel.

What are three protections for consequences of whistle-blowing?

- Federal Whistleblower Statute - Whistleblowers Protection Act - State protection

Name at least one act or set of laws that inaccurate classification of workers is a violation of.

- Federal tax laws - The National Labor Relations Act of 1935 - The Fair Labor Standards Act of 1938 - Employee Retirement Income Security Act - Social Security Act - State worker's compensation and unemployment compensation laws.

What constitutes a valid restrictive covenant?

- It protects a legitimate business interest. - It is ancillary to a legitimate business relationship. - It provides a benefit to both the employee and the employer. - It is reasonable in scope and duration. - It is not contrary to the public interest.

What are three statutory exceptions to employment at-will?

- Occupational Safety an Health Act - Fair Labor Standards Act (fair pay) - Pregnancy Discrimination Act

What three component comprise a Prima Facie Retaliatory Discharge case?

- Participation in a protected activity - An adverse employment reaction - Casual connection between the protected activity and the adverse action.

Many Statutory Acts have different definitions of 'employer', name one of them.

- The Civil Rights Act of 1866 - Title VII of the Civil Rights Act of 1964 - Title VI of the Civil Rights Act of 1964 - Age Discrimination in Employment Act of 1967 - Americans with Disabilities Act - Fair Labor Standards Act - Rehabilitation Act of 1973

What are four criteria to be an independent contractor?

- The business must have never treated the worker as an employee for purposes of employment taxes for any period. - All federal tax returns with respect to this worker were filed consistent with the worker being an independent contractor. - The company has treated all those in positions substantially similar to that of this worker as independent contractors. - The company has a reasonable basis for treating the worker as an independent contractor.

What is one thing (of many) courts look at in regards to determining whether someone is an employee or not?

- The degree of control exerted by the alleged employer over the worker - The worker's opportunity for profit or loss - The worker's investment in the business - The permanence of the working relationship - The degree of skills required by the worker - The extent of the worker is an integral part of the alleged employer's business.

What are three things that define an applicant?

- The employer has acted to fill a particular position. - The individual has followed the employer's standard procedures for submitting applications. - The individual has indicated interest in the particular position.

What three components make up Tort Action of Defamation?

- The employer made a false and defamatory statement about the employee. - The statement was communicated to a third party without the employee's consent - The communication caused harm to the employee.

What three components make a Prima Facie Promissory Estoppel case?

- The employer made a promise - On which the worker reasonably relied - To the employee's detriment.

What three torts fall under wrongful discharge based on other tort liability?

- Tort of outrageous conduct - Tort claim for emotional distress - Tort action of defamation

What are the exceptions to the at-will doctrine?

- violation of public policy - retaliatory discharge - breach of implied covenant of good faith and fair dealing - breach of implied contract - constructive discharge - wrongful discharge based on other tort liability - wrongful invasion of privacy.

Is regulation necessary? Give the Proponent view.

-Human beings do not always act rationally -Discrimination continues because often employers are faced with the choice of two equally qualified applicants for a position. -Biased firms can remain competitive while carrying out discriminative practices.

Summarize the outcomes of Wilson vs. Southwest Airlines Company.

-Is being female a BFOQ to be a flight attendant? - Difference between was employer is in business to do and how they do it.

Congress passes employment-related laws when it believes that the employee is not on equal footing with the employer. Give some examples of this.

-Minimum wage -A refrain from using certain criteria (age, race, gender) to arrive at specific employment decisions.

What are three ways to determine if one is an "employee"?

-The Common-law Agency Test -IRS 20-factor analysis - Economic Realities Test

What are the three exclusions for at-will employment?

1. Government employees. 2. Employees under a collective bargaining agreement. 3. Employees under individual contract with employer.

What is the IRS 20-factor analysis?

A List of 20 factors used by the IRS to determine whether someone is an employee or an independent contractor.

What is per curium?

A brief decision made by the court.

What is a Prime Facie case?

A case that presents evidence that fits each requirement of a cause of action.

What is an independent contractor?

A person who contracts with a principal to perform a task according to his or her own methods.

What is another name for a Noncompete Agreement?

A restrictive covenant.

Is a Noncompete Agreement a federal or state matter?

A state matter, but the states vary widely in matters of permitting noncompete agreements.

Describe 'stare decisis'.

A system of using legal precedent.

What is the economic realities test?

A test used by courts to determine whether a worker is economically dependent on a business or is in business for himself or herself.

What is the common law agency test?

A test used to determine employee status.

What can help identify the nature of the association between parties?

A written document (possibly outlining considerations)

What is a tort?

Act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.

What is a Noncompete Agreement?

An agreement signed by the employee agreeing not to disclose the employer's confidential information or to enter into competition with the employer for a specified period of time and/or within a specified region.

Describe 'freedom to contract'.

An employee may choose to work or not work for a given employer, likewise, an employer may choose to hire or not hire a given applicant.

What is a covenant of good faith and fair dealing?

An implied contractual obligation to act in good faith in the fulfillment of each party's contractual duties.

What is an implied contract?

An unexpressed contract that is created by words or conduct of the parties involved.

What disparate treatment cases is BFOQ available for? What is it not available for?

Available for: cases regarding gender, religion, and national origin. Not available for: race or color.

What is BFOQ and what does it stand for?

BFOQ = Bona Fide Occupational Qualification Defense. Permissable discrimination if legally necessary for employer's particular business.

What case was described in class for Retaliatory Discharge?

Burlington Northern and Sante Fe Railway Co. vs. White.

What must a valid Noncompete Agreement be supported by?

Consideration offered in a bargain-for exchange. I.e. The one signing the contract needs to gain something out of it.

Summarize the results of the case Paloni vs. City of Albuquerque Police Department.

Court did not find CD.

Summarize the results of the case Nassar vs. University of Texas Southwestern Medical Center at Dallas.

Court found CD.

What is a motion for summary judgment?

Defendant's request for the court to rule on plaintiff's case based on the documents submitted, alleging there are no tribal issues of fact to be decided.

Describe inevitable disclosure.

Employers are protected against disclosure of trade secrets even if no noncompete applies.

What is at-will employment?

Employment relationship where there is no contractual obligation to remain in the relationship.

True or False? District court decisions are applicable in all of its circuits.

False! Circuits contains districts, NOT vice versa. A district decision is only applicable in that district.

True or False? The federal government protects against retaliatory discharge.

False! The state governments do, because all public entities are protected, but not in all states are private entities protected.

True or False? U.S. Supreme Court Decisions can be altered by enough State supreme court overrulings.

False! U.S. Supreme Court Decisions are final.

True or False? Most courts hold that supervisors are liable for his or her actions under the federal antidiscrimination statutes.

False, because they are not considered the employer.

True or False? Training should be offered to an independent contractor.

False.

True or False? Where additional assistance is required, an employer provides the independent contractor with the additional assistance.

False.

Where the risk of misclassification is great the employer may choose to obtain an advance ruling from the IRS. What form is this?

Form SS-8

Where does the employment relationship have its origins?

In agency law.

What is the difference in payroll between independent contractor and employee?

Independent contractor is paid on the basis of the nature of the job completed, rather than hours worked to complete it.

Is constructive discharge considered an involuntary or voluntary act on the part of the employee?

Involuntary.

What are the cost reductions for employers when hiring independent contractors?

It avoids the cost of overtime and work-related expenses.

Where is at-will employment rooted?

It is rooted in English feudalism with serfs working/living on the employer's land.

Staffing firms and their clients may have _________ _____________ of workers.

Joint liability.

What are two employer's defenses when being charged with disparate treatment?

LNRD & BFOQ.

What is LNRD and what does it stand for?

LNRD = Legitimate, Nondiscriminatory Reason Defense. Employee's counter - legitimate, nondiscriminatory reason is a mere pretext for the employer to discriminate.

What is public policy?

Legal concept intended to ensure that no individual lawfully do that which has a tendency to be injurious to the public or against the public good.

Describe the Melott vs. ACC Operations, Inc. case.

Manager's promise to help "in any way" he could did not create an implied contract.

Are independent contractors protected from discrimination and affirmative action?

Nope.

Do independent contractors have access to benefits?

Nope.

In regards to an independent contractor, does the principal have any control over the details of the IC's work?

Nope.

What is constructive discharge?

Occurs when the employee is given no reasonable alternative but to end the employment relationship. Basically the company wants to fire them, but puts them in a position so they decide to quit, instead.

What is a respondent?

One against whom a case is appealed at the Supreme court.

What is an appellee?

One against whom an appeal is brought.

What is a defendant?

One against whom the case is brought.

What is a petitioner?

One who appeals a case to the Supreme court.

What is a plaintiff?

One who brings a civil action in court.

What is an appellant?

One who brings an appeal.

Exceptions to at-will doctrine based on...

Promissory estoppel - does not rise to level of a contract.

What is a motion to dismiss?

Request by defendant for court to dismiss the plaintiff's case.

What is the Worker Adjustment and Retraining Notification Act?

Requires that employers with over 100 employees must give 60 days advance notice of a plant closing or mass layoff to affected employees.

What is cause of action?

Right provided by law for a party to sue for remedies when that right is violated.

Define "employer".

Someone who employs or uses others to do his or her work, or to work on his or her behalf.

What is retaliatory discharge?

Terminations in response to an employee exercising rights provided by law.

Where can state supreme court decisions be appealed to?

The U.S. Supreme Court

What does a breach of implied covenant of good faith look to to ascertain whether there were any violations of public policy?

The actions of each party.

Describe employer payroll deductions in regards to the employer.

The employer is responsible for employee deductions.

What is a case citation?

The identifying set of numbers and letters under the case name.

Describe employer payroll deductions in regards to independent contractors.

The independent contractor is responsible for their own deductions.

What is a promissory estoppel?

The legal principle that a promise is enforceable by law when the promiser makes a promise to the promisee who relies on it to his or her own detriment.

Is regulation necessary? Give the Opponent view.

The market will work to encourage employers' rational, nonbiased behavior.

What is the critical factor of the common law agency test and describe it.

The right to control. That is, an independent contractor has control over their business and how they do things, an employee does not have control as that is given to the employer.

What must a Noncompete Agreement Contract have?

They must have forum selection clauses which stipulate the state law that applies to it.

Tom has sued Jerry for misconduct, the court ruled in favor of Jerry. Tom is not okay with this and believes his case has the evidence for an opposite ruling, so decides to appeal the case to the court of appeals. Who is the appellee and who is the appellant?

Tom is the appellant, Jerry is the appellee.

After taking Jerry to the court of appeals, the court has still ruled in favor of Jerry, and Tom believes this is unjust, so he takes Jerry to the Supreme Court. Who is the petitioner and who is the respondent?

Tom is the petitioner, Jerry is the respondent.

Tom feels he has been wronged against his neighbor Jerry and decides to sue him. Who is the plaintiff and who is the defendant.

Tom is the plaintiff, Jerry is the defendant.

Describe agency law.

Traditional law of master and servant.

What is disparate treatment?

Treating similarly situated employees differently because of prohibited Title VII factors.

Describe the state court system.

Trial court -> intermediate court of appeals -> state supreme court.

True or False? Circuit court decisions are applicable only in that particular circuit.

True!

True or False? U.S. Court Decisions are applicable in all jurisdictions.

True!

What is whistle-blowing?

When someone from a company tattles on their company.

What is faltering company exception?

When the employer believes in good faith notice to employees would preclude ability to obtain operating capital.

What are contingent or temporary workers?

Workers' whose job with an employee is temporary.

Are employees protected from discrimination and affirmative action?

Yep.

Do employees have access to benefits?

Yes.