Employment Law - Final Exam

Ch. 11 - Work-Life Conflicts What is the Family and Medical Leave Act (FMLA)?

* the principal federal law governing the provision of family and medical leave **Many states have their own leave laws **** The FMLA sets minimum standards for the provision of leave ***** Leave policies should be consistent with the FMLA

Ch. 11 - Work-Life Conflicts How does the FMLA treat KEY EMPLOYEES?

**Key employees are salaried employees who are among the top 10% of the firm's employees **Employers may not refuse leave to key employees, BUT can decline to restore them to their positions IF restoration would cause "SUBSTANTIAL AND GRIEVOUS ECONOMIC INJURY" to the employer's operations

Ch. 19 - Downsizing and Post-term How is a "mass layoff" defined under the WARN Act?

- A mass layoff is a reduction in force not caused by a plant closing, but that results in employment loss at a single work site during any 30-day period for at least 500 full-time employees ** (or at least 50 full-time employees when these comprise at least 33 percent of total employment at the work site) - 500 is a trigger regardless if it's less than 33% of total employment - if less than 500, it's only a trigger if its 33% of total employment

Ch. 4 - Recruiting How does a negligent misrepresentation claim differ from a fraud claim?

- A negli. misrep. claim does not require the 2nd element of a fraud claim (no need to prove intent to falsify or reckless disregard for truth)

Ch. 5 - Background Checks What is a negligent referral?

- An employer giving a reference may give incomplete information or misrepresent the work of a former employee. ** If that employee then harms others, the employer giving the reference may be liable for negligent referral. *** If an employer chooses to give a reference, it must not be misleading.

Ch. 18 - Termination How do the courts examine discriminatory termination?

- Courts differ in terms of how strictly comparable the situations of employees must be to show that they are similarly situated to serve as evidence of disparate treatment Rule: One of the best ways to avoid discriminatory terminations is to enforce policies in a consistent manner, treating like situations in a like manner, regardless of the individuals involved

Ch. 18 - Termination What are other contract related claims?

- Courts have long read into contracts an implied covenant of good faith and fair dealing - Bad faith terminations that deny employees the benefits of their contractual employment relationship give rise to this claim - Promissory estoppel requires a reasonable and detrimental reliance on a clear promise

Ch. 19 - Downsizing and Post-term How do courts treat non-competition agreements?

- Courts recognize such agreements as restraints on trade and will enforce them only to the extent that the restraint is necessary to protect legitimate business interests. ***Rule: Employers should use noncompetition agreements only if important business interests are at stake, and should craft the agreements to be no broader than necessary to protect those important business interests

Ch. 16 - Performance Appraisals How do the courts review cases involving performance appraisals?

- Courts will not review performance appraisals to determine whether the appraisal was correct (Only to determine if there is discriminatory intent or other illegal motives) ***Recommended: Employers should conduct performance appraisals regularly and maintain credible, written documentation of performance

Ch. 16 - Performance Appraisals How should employers handle the perf. review of disabled employees?

- Employers can and should hold disabled employees to the same standards of performance as non-disabled employees who do the same jobs (Receipt of a reasonable accommodation should not be held in any way against a disabled employee) - If a disabled employee is unable to perform a marginal function of a job, that function should be removed from the job and not be reflected in performance ratings

Ch. 11 - Work-Life Conflicts Can an employer impose language requirements?

- Employment decisions based on English fluency and accents may constitute national origin discrimination ** HOWEVER, an employee's accent can be considered when: 1. communication is a significant part of the job 2. the employee's accent interferes with his ability to perform the job

Ch. 13 - Benefits Does Federal law require that employers provide healthcare?

- Federal law does not require that employers offer health insurance, BUT under the Affordable Care Act, some large employers may be subject to monetary penalties if they fail to do so **The general rule is that employers are not legally required to provide health insurance, pensions, paid sick days, severance pay or other benefits

Ch. 11 - Work-Life Conflicts Discrimination Based on Sexual Orientation (State, Local Law)

- For most employees, legal protection depends on the geographic location of their workplace (Employees in about 21 states & the District of Columbia have protection under state law, but enforcement tends to be weak) - Employers must be aware of and abide by state and local laws prohibiting discrimination based on sexual orientation

Ch. 16 - Performance Appraisals Do employers have a duty to train their employees?

- In general, employers have no duty to train their employees (One important exception is training for safety and health reasons) *Over 100 OSH standards call for training employees exposed to certain hazards; failure to train would constitute a violation of the OSH Act * Employees have a right to know about hazards on the job

Ch. 16 - Performance Appraisals Do negative performance appraisals constitute discrimination?

- NO, however; if a biased negative appraisal becomes the basis for the denial of an employment opportunity, disparate treatment discrimination can be alleged - Unwarranted negative performance appraisals could constitute "materially adverse actions" in cases of retaliation if they are used to punish employees for exercising their rights

Ch. 6 - Testing Is a drug test for illegal substances considered a medical exam under the ADA?

- NOT considered medical exam BUT 1. testing for prescription drugs taken for medical conditions that might be disabling IS a medical exam 2. An employer might be able to show that testing for powerful prescription drugs with sedative effects is job-related & consistent with business necessity, but routine employer access to this information would make the ADA meaningless

Ch. 19 - Downsizing and Post-term What is a non-competition agreement?

- Noncompetition agreements are restrictive covenants designed to prohibit former employees from working for competitors

Ch. 19 - Downsizing and Post-term What is a non-solicitation agreement?

- Nonsolicitation agreements prevent former employees from soliciting the firm's clients after the employee leaves **Some courts give employers more leeway in using these agreements because they impose a lesser restriction on the employee's ability to earn a living

Ch. 5 - Background Checks How can an employer use QUALIFIED PRIVILEGE as a defense to a defamation claim?

- Qualified Privilege is conditional immunity This protection can be lost if: 1. The statement was made with malice (intent to harm the person's reputation), 2. Or with reckless disregard for the truth 3. or overly broad publication of the statements **Smart Practice: Speak only to those with a need to know

Ch. 19 - Downsizing and Post-term What is a restrictive covenant?

- Restrictive covenants are contractual agreements that aim to protect employer interests by limiting the ability of former employees to do such things as: 1. going to work for competitors 2. disclosing trade secrets or other sensitive information 3. soliciting clients or former coworkers to do business with or join other firms 4. making disparaging comments about their former employers

Ch. 5 - Background Checks When would an employer lose the qualified privilege protection in a defamation claim?

- Statemts that are defamatory still will NOT subject an employer to liability IF those statemts were privileged - Qualified privilege can be lost if any of following are true: 1. There was malicious intent to harm the person's reputa. 2. The statemt was made w/ reckless disregard for truth 3. Publication of the statemt was overly broad

Ch. 5 - Background Checks What concerns would a previous employer have when called to verify reference?

- Substantive information can be difficult to get because of previous employers' concerns about legal issues: 1. Defamation 2. Former employers may retaliate against former employees 3. Former employers may negligently provide misleadingly positive referrals

Ch. 11 - Work-Life Conflicts What can a public employee do if discriminated against due to sexual orientation? (federal law)

- Title VII does not prohibit discrimination on the basis of sexual orientation, but state and local laws may 1. Public employees who are victims of such discrimination may have a cause of action for a denial of equal protection under the U.S. Constitution (Cases are reviewed under the rational relationship standard)

Ch. 19 - Downsizing and Post-term What is a trade secret?

- Trade secret refers to information that has actual or potential economic value because it is not generally known to others and the owner makes reasonable efforts to keep this information secret **Courts have traditionally recognized a duty of employees under common law not to divulge such information

Ch. 19 - Downsizing and Post-term What does the Older Workers Benefit Protection Act (OWBPA) do about early retirement offers?

- Under the OWBPA, it is legal for employers to offer early retirement incentives, even though the minimum age or service requirements might exclude younger employees 2. However, early retirement offers cannot be extended to one age group (employees between 52 and 56), but denied to older employees 3. Employees must be informed if early retirement incentive plans are under serious consideration

Ch. 18 - Termination What is the just cause / due process doctrine for unionized employees?

- applies to union and public (govt) employees or have written contracts of employment - Under this standard, employers bear the burden of showing that they had good reasons for their termination decisions and followed reasonable procedures

Ch. 5 - Background Checks What is the standard to prove public policy?

- courts look to public policy to determine whether a type of employment calls for greater care in hiring

Ch. 4 - Recruiting How do courts treat an employer's refusal to hire due to falsification/omission on the part of the applicant?

- courts regard this as a legitimate, non-discriminatory reason for not hiring ** Particularly true when employer consistently enforces this policy, notifies applicants of it (usually on the application form), and the falsification or omission is material

Ch. 18 - Termination What is constructive discharge?

- employers cannot avoid the legal consequences of terminations by effectively, but not officially, discharging employees (essentially, forcing them out) - A quit is a termination when an employer creates intolerable working conditions with the intention of forcing an employee to quit - a constructive discharge - and a REASONABLE PERSON would have felt compelled to quit

Ch. 6 - Testing What does the Genetic Information Nondiscrimination Act (GINA) forbid?

- forbids employers from acquiring genetic information regarding applicants & employees ** Note that family medical history is genetic information, but conditions or traits already manifested by employees are not protected by GINA

Ch. 6 - Testing What is the Employee Polygraph Protection Act (EPPA)?

- forbids private employers from requiring a pre-employment polygraph or other truth-telling devices ** Prior to its passage, pre-employment polygraphs were routinely used

Ch. 13 - Benefits How does the court interpret ERISA's prohibition of discrimination against a beneficiary? What is the rule of thumb in this regard?

- it has been interpreted narrowly and applied only to cases in which an adverse employment decision was made FOR THE EXPRESS PURPOSE of defeating such rights

Ch. 13 - Benefits What makes ERISA unusual among employment laws?

- its sweeping PREEMPTION language 1. ERISA preempts state laws even remotely relating to the regulation of benefit plans 2. State and city laws requiring employer contribution to health care insurance are likely pre-empted by ERISA 3. ERISA is a complex law containing four Titles (we will only focus on Title I)

Ch. 18 - Termination How is "just cause" determined in a termination of a union employee?

- language in labor agreements that limits discipline and discharge to situations in which there is just cause 1. Almost all labor agreements include grievance and arbitration procedures to challenge discipline and discharge decisions 2. Determinations as to whether unionized employees have been terminated for just cause are made by arbitrators rather than courts 3. Arbitrators have broad authority; if an arbitrator decides that a discharge was not for just cause, the arbitrator can overturn the decision or modify it

Ch. 13 - Benefits How must an employer advise its employees about benefits under step ONE of Title I under ERISA?

- must give employees Summary Plan Description (SPD) 1. Must be given to employees with 90 days of eligibility for benefits 2. Written with minimum of "legalese" 3. Sufficiently comprehensive and accurate to inform employees about their rights and obligations

Ch. 18 - Termination What is intentional interference with a contractual relationship?

- occurs when intentional, improper interference causes a third party: 1. to breach its contract with plaintiff or 2. To not enter into a contractual relationship with the plaintiff (interference with prospective business advantage) *** Cases where a former employee is blacklisted to prevent him from obtaining other employment fit this requirement

Ch. 13 - Benefits What is the Older Workers Benefit Protection Act (OWBPA)?

- permits employers to provide less extensive coverage for older workers, as long as the amount expended is equal to that spent on other workers ** This applies only to welfare plans for which costs are age-related and not to pension plans

Ch. 6 - Testing Under the ADA, when is an employer prohibited from requiring applicants to submit to medical exams?

- prior to making a conditional offer of employment ** Medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are NOT job related

Ch. 13 - Benefits What is the Health Insurance Portability & Accounting Act (HIPPA)?

- prohibits group health plans from denying benefits or charging more for coverage based on any health factor - Health factor defined broadly to include health status, medical condition, genetic information and more

Ch. 11 - Work-Life Conflicts What is the Jury System Improvements Act?

- protects people who serve on federal juries from discharge intimidation or coercion by their employers - Most states also have laws protecting from discharge employees who serve on juries - Some states require that employees be paid while on jury duty - Employers must generally provide employees with time off to serve on juries and to vote

Ch. 6 - Testing When can public employers legally drug test their employees?

- public employers may drug test for safety-sensitive jobs or upon reasonable suspicion. - Drug and alcohol testing of employees in transportation-related jobs is required.

Ch. 5 - Background Checks How is defamation defined in relation to employer references?

- relates to references, statements or information provided by a former employer to a prospective new employer - False statements that reflect badly on a person are communicated to others, which results in damage to that person's reputation - To be defamatory, statements must be false

Ch. 13 - Benefits What is the Consolidated Omnibus Budget Reconciliation Act (COBRA)?

- requires employers to provide employees the option of continuation of health insurance when QUALIFYING EVENTS occur which would terminate coverage

Ch. 13 - Benefits What is the Patient Protection & Affordable Care Act (PPACA / Obamacare)?

- signed into law in 2010 - intended to insure that most Americans have affordable health care - It also includes a number of provisions designed to reign in the cost of health care - The PPACA is complex, and phased in over time - Plans existing prior to passage, with no significant changes may be grandfathered and exempt from some requirements

Ch. 11 - Work-Life Conflicts What does the Pregnancy Discrimination Act (PDA) provide in relation to leave?

- the PDA prohibits discrimination based on pregnancy, childbirth and related conditions - It does NOT provide for leave for childbirth or related conditions *** HOWEVER, the PDA require employers to treat persons with pregnancy-related conditions in the same manner as persons with other medical conditions who are similar in their ability or inability to work, and provide similar leave

Ch. 4 - Recruiting How can you determine whether discrimination has occurred in the recruitment/hiring process?

- the firm's applicant pool will be compared to the RELEVANT LABOR MARKET (the protected class composition of people who are qualified for the type of work in question and reside within a reasonable recruitment area)

Ch. 5 - Background Checks What is the Fair Credit Reporting Act?

- the major federal law regulating the gathering, sharing and use of information by employers and consumer reporting agencies - Regulates consumer reporting agencies

Ch. 18 - Termination What is the implied contract exception to employment at will?

- under the implied contract exception to employment at will, the right of employers to terminate at will can be limited - Written or oral statements by employers, and their course of conduct in dealing with employees, can give rise to an implied contract

Ch. 18 - Termination What are constitutional protections against wrongful discharge?

1. 1st Amnd (speech) 2. 5th and 14th Amnd (due process & equal protection) 3. state constitutions

Ch. 19 - Downsizing and Post-term When would a RIF situation occur?

1. A RIF situation occurs when business considerations cause an employer to eliminate one or more positions within the firm. 2. BUT an employee is not RIFed if he or she is replaced after discharge. 3. A genuine RIF means that someone else is assigned to do the employee's work, or the work is redistributed among other existing employees already performing related work

Ch. 4 - Recruiting What are the elements of a negligent misrepresentation claim in relation to recruitment? (4)

1. A false representation of a material fact was made to another person 2. The party making the statmt intended the other person to rely on the false representation and to act or refrain from acting in a certain way 3. The other person was, in fact, induced to act or refrain from acting. 4. The other person was harmed by reliance on the false representation

Ch. 4 - Recruiting What are the elements of a fraud claim in relation to recruitment? (5)

1. A false representation of a material fact was made to another person 2. The party making the statmt knew that it was false at the time that it was made (or had reckless disregard for truth) 3. The party making the statmt intended the other person to rely on the false representation and to act or refrain from acting in a certain way 4. The other person was, in fact, induced to act or refrain from acting. 5. The other person was harmed by reliance on the false representation

Ch. 16 - Performance Appraisals How does a lack of consistency in evaluations affect employers?

1. A performance appraisal which is inconsistent with prior appraisals raises legal issues 2. After an employee has filed a charge, it appears to be retaliation 3. Shortly before layoffs or a termination, it appears to be pretext to justify the decision to layoff or terminate 4. Performance appraisals must not be manipulated and made more negative than actual performance warrants

Ch. 5 - Background Checks What must an employer obtain prior to checking an applicant's credit report?

1. A prospective employer must disclose to the applicant that a credit report will be obtained, and must get the applicant's approval in writing, in a stand-alone authorization ** The authorization cannot be included as part of the employment application

Ch. 18 - Termination What is the criteria for determining the existence of an implied contract? (1-5)

1. A specific promise was made 2. The promise was made frequently and consistently 3. The source of the promise was someone with authority to offer it 4. The promise was communicated to the employee 5. The promise was not highly conditional

Ch. 5 - Background Checks What are the elements the plaintiff must show in a defamation claim?

1. A statemt was made that purported to be factual in nature 2. The statemt was false or substantially false 3. The statemt challenged the integrity, character or ability of the plaintiff 4. The statemt was "published" (communicated) either orally (slander) or in writing (libel) 5. There was harm to the reputation of the plaintiff

Ch. 13 - Benefits What does Title I under ERISA require of employers?

1. Advise employees regarding the benefits they offer 2. Deliver promised benefits 3. Provide claims and appeal procedures 4. Manage benefits wisely and for the benefit of its employees, a fiduciary duty 5. Not interfere with or retaliate against beneficiaries

Ch. 19 - Downsizing and Post-term What are some concerns when selecting employees to be RIFed?

1. Age discrimination plaintiffs must show that they were treated less favorably than employees who were "substantially younger" even if those employees were not under 40 2. If an employer uses "reduction in force" to explain a discharge, the employer must explain why certain employees were selected

Ch. 18 - Termination What is employment at will with exceptions?

1. An employer may terminate an employee for any reason except prohibited reasons (exceptions) developed by statute or common law since 1937 2. Applies to a significant majority of the workforce

Ch. 4 - Recruiting In the application process, what must employers retain? (3)

1. Applications & related records for at least 1 year after a hiring decision is made 2. Records regarding people who were hired until a year after they leave employment 3. Data regarding the protected class characteristics of applicants for purposes of affirmative action and adverse impact

Ch. 16 - Performance Appraisals What should a perf. review contain?

1. Appraisers should not shy away from criticism, but their tone should be measured and professional 2. Extreme language suggests hostility, and may become the basis for a cause of action for discrimination or defamation 3. Courts may view appraisals with both positive & negative comments as an indictor of a lack of bias

Ch. 11 - Work-Life Conflicts What is considered as a qualifying event under FMLA?

1. Birth of a son or daughter of the employee 2. Placement of a son or daughter with the employee by adoption or foster care 3. The need to care for a spouse, son, daughter or parent with serious health condition 4. The inability of the employee to perform the functions of his job due to a serious health condition 5. The need to care for a service member who suffered a serious injury or illness while on active duty 6. Any "qualifying exigency" arising because a family member is or soon will be placed on active duty

Ch. 5 - Background Checks What might a background check include?

1. Checking references 2. Verifying past employment & military service 3. Confirming necessary degrees, licenses, other credentials 4. Checking credit reports 5. Inspecting candidates' online personas

Ch. 11 - Work-Life Conflicts What are the criteria for a "period of incapacity"?

1. Conditions resulting in 3 days or more of incapacity and treatment 2. Incapacity related to pregnancy or pre-natal care 3. Long term periods of incapacity 4. Absences to receive multiple treatments which would result in incapacity if not treated

Ch. 5 - Background Checks What are the 3 defenses to a defamation claim?

1. Consent 2. Qualified Privilege 3. Truth (If the statemt is true, it is not defamatory, even if it hurts the person's reputation)

Ch. 18 - Termination What are the sources of legal protection for wrongful discharge?

1. Constitutional 2. Statutory 3. Common law 3a. contractual 3b. tort claims **Some protections are available only to public sector employees, union employees, or employees with individual employment contracts

Ch. 5 - Background Checks What are the two types of credit reports?

1. Consumer credit report - Any communication of information by a consumer reporting agency bearing on a consumer's credit worthiness, character, or reputation, which is to be used as a factor in assessing eligibility for employment purposes. 2. Investigative report - A report containing similar information, but also based on personal interviews with friends, neighbors, and other associates.

Ch. 6 - Testing What are the most common drug testing procedures required by some state statutes? (1-3 answers)

1. Employees must be provided with written notice that drug testing is required 2. Employees must be given copies of the employer's substance abuse drug testing policy 3. Employers must use licensed laboratories to analyze samples

Ch. 5 - Background Checks What are the TWO main requirements of the Immigration Reform & Control Act (IRCA)?

1. Employers are prohibited from knowingly hiring or retaining unauthorized aliens 2. Employers with four or more employees are prohibited from discriminating in hiring or termination decisions on the basis of national origin or citizenship

Ch. 18 - Termination What is just cause / due process?

1. Employers bear the burden of proving that terminations were proper and based on good reasons 2. Applies to about 20% of workforce

Ch. 19 - Downsizing and Post-term What are some issues to consider when making the decision to downsize?

1. Employers can choose to go out of business entirely, but must not selectively close facilities to inhibit unionization at their remaining facilities 2. If downsizing decisions are mandatory topics of bargaining, unionized employers must negotiate in good faith before finalizing such decisions 3. Successor employers must bargain with unions that represent employees at acquired companies, although they are generally not bound by the terms of existing labor agreements (Privatization of public services raises questions about whether the private companies taking over are successor employers who must bargain with unions)

Ch. 11 - Work-Life Conflicts What does USERRA provide in regards to leave?

1. Employers may not discriminate against members of military 2. Generally, returning veterans are entitled to reemployment following up to five years of cumulative absence for military service 3. Under the escalator principle, employers must try to place returning vets into the positions they would likely have attained

Ch. 5 - Background Checks How can an employer use CONSENT as a defense to a defamation claim?

1. Employers might require that former employees sign a written release of information form, granting permission to communicate information about him *** But is it effective if the employee does not know what the employer will say? **** An alternative is to negotiate with the employee a letter of reference

Ch. 13 - Benefits How must an employer provide claims and appeals procedures under step THREE of Title I under ERISA?

1. Employers must provide "reasonable" claims and appeal procedures 2. Standards for handling health insurance claims are more stringent than for other benefits 3. Employers may not impose filing fees on claims. 4. Decisions regarding claims must be made within 90 days, but more quickly for health insurance claims **(Urgent care claims must be decided within 72 hours) **(Claims for treatment already received, within 30 days) ****Employees must use their employers' claims & appeal procedures before suing

Ch. 11 - Work-Life Conflicts How should EMPLOYERS respond to requests for FMLA leave?

1. Employers must respond promptly to requests for leave in a cooperative dialogue 2. Employers must provide written notice to employees requesting leave that the leave is being designated as FMLA leave (generally within 5 business days after notification of a need for leave) 3. inform their employees of their rights under the FMLA

Ch. 18 - Termination How should employers handle terminations? (1-3)

1. Employers should consider alternatives to termination, including retraining, transferring, demoting, suspending, and signing last-chance agreements 2. The option of resignation is best pursued when there are growing concerns about the performance or conduct of an employee, but a termination is not yet imminent 3. Resignations should be documented in writing and stipulate the voluntary nature of the resignation

Ch. 4 - Recruiting During pre-employment inquiries, what must an employer avoid asking? (1-2)

1. Employers should not directly inquire about protected class characteristics (Ex: asking age, whether U.S. citizen) 2. Employers should not indirectly inquire about protected class characteristics (Ex: asking date of graduation, memberships, workers' compensation claims filed) **** Employers who want to track protected class characteristics for affirmative action purposes may do so by a voluntary reporting process

Ch. 16 - Performance Appraisals Who conducts perf. reviews?

1. Employers should provide training or written instructions to those who conduct performance appraisals 2. If coworkers or others also participate in performance appraisals, they also require instruction in good appraisal techniques and legal issues

Ch. 4 - Recruiting What can an employer do if they discover falsification/omission on the job application after the employee is hired?

1. Employers who discover falsification or omission by an employee after hire have grounds to fire 2. Cases involving after-acquired evidence may limit the legal remedies available to employees because of their prior misbehavior

Ch. 11 - Work-Life Conflicts How does the EEOC treat "English-only" rules?

1. Employers with bilingual or multilingual employees sometimes institute English-only rules that prohibit or restrict the speaking of languages other than English at work 2. EEOC's guidelines provide that broad English-only rules applied at all times are PRESUMPTIVELY DISCRIMINATORY 3. Narrowly tailored policies applied only at certain times are legal if a business necessity

Ch. 5 - Background Checks What must an employer do in regards to criminal records? (1-4)

1. Failing to check for a criminal history may be clear evidence of negligent hiring 2. Distinguish between "arrests" and "convictions." (Employers may inquire about convictions, but not arrests) 3. Distinguish between "misdemeanors" and "felonies." (Felonies are serious crimes) 4. Criminal records are decentralized, and may be inaccurate (if only checking one county, arrests made in other areas will not come up)

Ch. 5 - Background Checks What is the difference between foreseeability and proximate cause?

1. Foreseeability - degree to which harm can/could be anticipated 2. Proximity - connection between events as they actually unfolded

Ch. 4 - Recruiting How is a breach on contract claim different from a fraud claim?

1. Fraud requires "intentional misrepresentation" - breach does not require intent, only failure to live up to promise 2. Fraud usually involves false statmt about CURRENT or PRE-EXISTING FACTS - breach involves promised made about FUTURE T's & C's of employment EXCEPTION: When the party making promises about future actions is AWARE of the falsity of those promises @ the time they are made (in that case, the promise is actionable as fraud)

Ch. 6 - Testing How does GINA affect pre-employment medical exams?

1. GINA requires that pre-employment exams must not include the taking of a family medical history or other forms of genetic information gathering 2. GINA also prohibits the use of genetic information in making employment decisions

Ch. 19 - Downsizing and Post-term What are the exceptions to eligibility for unemployment?

1. If an employee is discharged for misconduct, she might be disqualified from benefits (Only serious, intentional misconduct will disqualify) 2. Exception to employees who quit their jobs: - A quit which is a constructive discharge - Employees who leave because of health hazards 3. Employees who go on strike are not eligible, unless the employer has said they have been replaced, and no longer have jobs

Ch. 5 - Background Checks How does the law define negligence?

1. In law, negligence is based on idea that each person has a duty to others to exercise reasonable care 2. When his failure to do is proximate cause of harm to others, he is liable, negligent

Ch. 4 - Recruiting What is a breach of contract?

1. Is established by proof of a failure to live up to binding promises, regardless of intent 2. Concerns promises made about future terms and conditions of employment ** But if false promises are made knowingly, this is fraud

Ch. 5 - Background Checks What advice can employers follow when conducting background checks? (1-3)

1. No particular measure is required in all cases, but employers should always follow their own procedures. 2. Be especially wary of rush, last-minute hiring decisions. 3. Inconsistencies and gaps in information provided by applicants must be discovered and confronted.

Ch. 11 - Work-Life Conflicts What must EMPLOYEES do in order to utilize FMLA leave?

1. Notify their employers that a qualifying event has occurred for which FMLA leave is needed 2. If the need is foreseeable, provide employer with 30 days' notice 3. If the need is not foreseeable, provide notice "as soon as practicable" 4. In serious medical emergencies, notice may be provided during or after absences

Ch. 18 - Termination When can a claim under ADEA be waived?

1. Only claims that arose prior to the date of the waiver can be waived 2. If these requirements are not met, the waiver is unenforceable and any severance payments or other consideration provided to support the agreement are not recoverable by the Employer

Ch. 13 - Benefits How does the Employee Retirement Income Security Act (ERISA) categorize benefits?

1. Pension plans (to provide retirement income) 2. Welfare plans (covers all other benefits, including health care insurance, childcare subsidies, pre-paid legal services, etc.)

Ch. 6 - Testing When is drug testing in employment used?

1. Prior to hiring 2. As part of periodic medical exams 3. To verify that employees who have been through drug rehab programs are "clean" 4. Upon observation of aberrant behavior that create reasonable suspicion of drug use 5. And randomly (In random drug testing, a percentage of the work force is selected for periodic drug testing)

Ch. 19 - Downsizing and Post-term What are the elements of a discriminatory discharge due to AGE in a RIF claim? (part two)

1. The downsized employee was age 40 or over 2. He was performing his job to his employer's reasonable expectations 3. He was termed (or suffered another adverse employment action such as failure to transfer or re-hire) 4. Other similarly situated employees (i.e. those w/ comparable positions, skills and qualifications) who were substantially younger than him were treated more favorably OR 5. There is additional direct, circumstantial, or statistical evidence indicating that the plaintiff would not have been discharged "but for" his age

Ch. 5 - Background Checks How is an action determined to be part of an employee's scope of employment? (3)

1. The employee's actions relate to the kind of work she was hired to perform 2. They take place substantially within the workplace during working hours 3. They serve, at least partially, the interests of the employer

Ch. 19 - Downsizing and Post-term If a prima facie case of discriminatory discharge in a RIF is established, what must the employer and plaintiff do?

1. The employer must articulate the lawful reason for selecting the employee for termination 2. The plaintiff has the opportunity to show that the stated reasons are pretext and that it is more likely that the decision was based on the employee's age

Ch. 4 - Recruiting Who is an "applicant" for a job?

1. The government's definition of APPLICANT is broad, and includes any person who indicates an interest in being considered 2. An INTERNET APPLICANT is a person who expresses interest in employment via the internet or other electronic data technology

Ch. 11 - Work-Life Conflicts Discrimination Based on Sexual Orientation (Gender Identity)

1. The law on discrimination against transgender people is uncertain, but evolving in favor of greater legal protection 2. Discrimination claims brought by transgender people under federal law are often rejected because the discrimination is not "because of sex" 3. However, some claims based on sex stereotyping have been successful

Ch. 13 - Benefits What must the Summary Plan Description (SPD) identify?

1. The plan Administrator 2. Conditions for eligibility 3. Benefits offered 4. Procedures for claiming benefits 5. Procedures for appealing a decision

Ch. 19 - Downsizing and Post-term What point in time is used to determine WARN Act coverage?

1. The relevant point in time for determining coverage is the date that first notice of a closing or mass layoff is required to be given (60 days before downsizing) 2. There may be "waves" of layoffs, none of which is large enough to require notice, but employment losses over a 90-day period can be combined to prove a mass layoff 3. Multiple notifications may be required

Ch. 4 - Recruiting Why must an employer be careful about information disclosed to applicants about the job?

1. These statements can have legal consequences 2. Employers might be tempted to downplay negative information, or make promises regarding the duration of employment, promotion, or pay raises when trying to recruit desired candidates 3. Misrepresentations and unfulfilled promises can give rise to many legal claims, including fraud, negligent misrepresentation, and breach of contract

Ch. 19 - Downsizing and Post-term How should employers treat unemployment insurance claims?

1. Unemployment insurance taxes are experience rated; employers who produce more claims pay more taxes 2. Employers should not routinely contest unemployment insurance claims, but should contest when the former employee voluntarily quit, was terminated for serious misconduct, or committed fraud

Ch. 11 - Work-Life Conflicts What must EMPLOYERS provide under FMLA?

1. Up to 12 workweeks of leave over a 12 month period; 2. Maintenance of health insurance under the same conditions as if the employee had not taken leave; and 3. Restoration to the same position held before the leave, or an equivalent position with the same pay, benefits, and terms and conditions

Ch. 6 - Testing What are the Omnibus Transportation Employee Testing Act regulations for drug testing?

1. Use of tamperproof custody seals on specimen containers 2. Documentation of the chain of custody 3. Confirmatory tests 4. Use of a qualified medical review officer to interpret results & communicate them

Ch. 13 - Benefits What are some examples of a qualifying event that would terminate employment / benefit coverage under COBRA?

1. Voluntary or involuntary termination of employment for reasons other than gross misconduct 2. Reduced hours of employment 3. Divorce or legal separation 4. Death of an employee 5. Loss of dependent child status under the plan 6. Covered employee becoming entitled to Medicare

Ch. 4 - Recruiting What are the different recruitment mechanisms an employer can use to avoid discriminatory hiring?

1. Want ads and job announcements (Requires a neutral message re job availability, which does not express or imply a preference for some protected class group over another) 2. Employment agencies (May not discriminate on behalf of employer clients, Employers must not request that agencies discriminate) 3 Nepotism / Word-of-Mouth hiring (Unless workforce is already diverse, tends to recruit similar employees although not a per se violation of Title VII)

Ch. 4 - Recruiting In the application process, what must employers decide? (4)

1. What must be done to apply. 2. Whether applications will be accepted. 3. The period of time for which applications will be accepted. 4. How long submitted applications will remain valid.

Ch. 11 - Work-Life Conflicts What kind of work-life conflicts and employment law issues arise as a result of a diverse workplace?

1. Workers who are increasingly female, older, or disabled may require leave for parenting and medical problems 2. Workers may leave to serve in the military. 3. Diverse workforces may have difficulty with an English only language requirement 4. Gay, lesbian, bisexual and transgender persons in the workplace may encounter difficulty

Ch. 4 - Recruiting What should an offer letter include?

1. at-will employment 2. T's & C's are subject to change 3. this is not a contract

Ch. 18 - Termination What are statutory protections against wrongful discharge?

1. civil service, tenure law 2. anti-discrimination laws (ADA, ADEA) 3. non-interference provisions of statutes (NLRA, FMLA) 4. anti-retaliation provisions of statutes (OSHA, ERISA) 5. civic duty laws (USERRA) 6. off-duty conduct laws (smoking)

Ch. 4 - Recruiting What must be proven in order to have a negligent misrepresentation claim?

1. does not require proof of the element of intent to falsify or reckless disregard for the truth 2. Sufficient to show that employer should have known about the falsity of its statements 3. Silence may also constitute misrepresentation when an employer selectively omits material facts with the intent of creating a false impression or fails to correct the impression after becoming aware of its falsity (fraud by omission)

Ch. 6 - Testing What is the difference between genetic screening and genetic monitoring?

1. genetic screening of job candidates for desirable or undesirable genetic traits 2. Genetic monitoring may be used to spot adverse change sin the genetic material of employees exposed to hazardous substances

Ch. 5 - Background Checks What steps must an employer take when checking credit reports for an applicant?

1. get authorization from applicant in writing (stand-alone) 2. If, as a result, the employer intends to take adverse action, it must notify the person with a "PRE-ADVERSE ACTION DISCLOSURE" so that the person may explain or refute the negative information (send notice of rights and copy of report) 3. After taking an adverse action based on a credit report, the employer must give the person an "ADVERSE ACTION NOTICE." (rule of thumb is 5 days after step 2)

Ch. 18 - Termination What are common law (contract) protections against wrongful discharge?

1. individ. (express) employment contract 2. labor agreement 3. implied contract 4. covenant of good faith and fair dealing 5. promissory estoppel

Ch. 11 - Work-Life Conflicts What deems an EMPLOYER as covered by FMLA per element TWO of FMLA rights claim?

1. is a private sector employer w/ 50 or more employees at the same worksite or spread across multiple worksites w/in a 75 mile radius 2. is a public agency with any number of employees

Ch. 13 - Benefits What are some benefits not covered by ERISA?

1. premium pay 2. sick pay 3. vacation pay 4. college scholarship or tuition plans, etc.

Ch. 18 - Termination What are common law (tort) protections against wrongful discharge?

1. public policy exception 2. intentional interference w/ a contractual relationship 3. infliction of emotional distress 4. defamation 5. privacy torts 6. false imprisonment

Ch. 18 - Termination What are the FOUR kinds of the public policy exceptions that are recognized & termination for?

1. refusing to commit an illegal act 2. exercising a legal right 3. performing a public duty, or 4. reporting illegal activity (whistleblowing)

Ch. 16 - Performance Appraisals What is the forced distribution method?

1. require that predetermined percentages of employees be placed into particular performance categories 2. Forced distribution rankings are often accompanied by rigid policies calling for termination or other adverse employment consequences for those employees ranked in the lowest category 3. Forced distribution methods of performance appraisal have seen wide use, although their popularity is waning

Ch. 16 - Performance Appraisals What must employers do when establishing criteria and standards of performance?

1. take into account the needs of disabled employees 2. be consistently applied 3. be as objective as possible 4. be job related and consistent with business necessity

Ch. 16 - Performance Appraisals What are some common performance criteria?

1. work quality and quantity 2. attendance and punctuality 3. judgment 4. ability to work with others in a team 4. leadership

Ch. 11 - Work-Life Conflicts What deems an EMPLOYEE as eligible for FMLA per element ONE of FMLA rights claim?

1. worked for employer for at least 12 months 2. worked at least 1250 hours in the 12 months prior to taking leave or attempting to do so

Ch. 18 - Termination How should employers handle terminations? (11 -14 )

11. Unless there are compelling security concerns, terminated employees should be allowed a reasonable amount of time to clear out their offices and take care of other business, rather than be ushered out of the workplace 12. Final wages should be paid quickly and within any period provided for under state law 13. Unless termination is for gross misconduct, terminated employees should be notified of their right to health insurance coverage under COBRA 14. Employers should consider offering severance pay in exchange for releases of legal claims related to terminations

Ch. 4 - Recruiting During pre-employment inquiries, what must an employer avoid asking? (3-4)

3. Employers should avoid questions about requirements or criteria that are not uniformly applied to job candidates (Ex: asking marital status, child-rearing plans) 4. Employers should avoid questions about requirements that have a high probability of producing adverse impact (Ex: questions about prior arrests, type of military discharge, height, weight)

Ch. 5 - Background Checks What advice can employers follow when conducting background checks? (4-6)

4. Background checks should be more extensive if there is a greater chance that unfit employees could do harm to others. 5. Employers should document all attempts to gather information, even if those efforts are not successful. 6. If you must hire without a background check, hire, do the check, and fire the employee if unfit.

Ch. 6 - Testing What are the most common drug testing procedures required by some state statutes? (4-7 answers)

4. Employers must perform confirmatory tests if requested or allow employees access to samples to have their own tests done 5. Employees must be given written test results 6. Employees must be given an opportunity to explain the result if the test is positive 7. Samples must be collected with due regard for employee privacy

Ch. 18 - Termination How should employers handle terminations? (4-7)

4. Termination decisions should receive careful higher level review 5. Employees should be placed on administrative leave if circumstances warrant their removal prior to completion of an investigation or proper review of a termination decision. 6. The reasons for termination decisions and the process followed should be solidly documented. 7. These materials should be in writing, should be produced prior to the termination decision, and should support the decision to terminate.

Ch. 5 - Background Checks What must an employer do in regards to criminal records? (5-8)

5. Employers should use an investigative service and make sure the search is sufficiently broad. 6. If the information indicates unfitness where there is foreseeability of harm, the applicant should not be hired. 7. But policies excluding anyone with a criminal history may have an adverse impact (African-Americans & Latinos are arrested & convicted at a much higher rate than whites) 8. An individual assessment should be made

Ch. 18 - Termination What is the criteria for determining the existence of an implied contract? (6-9)

6. The employer's entire "course of conduct" was consistent with the promise 7. There was an exhaustive listing of dischargeable offenses in a handbook, and the offense for which the employee was fired was not in that list 8. A change to a less-protective policy was not communicated to employees 9. There was no effective disclaimer

Ch. 18 - Termination How should employers handle terminations? (8-10)

8. Employers should provide employees with a clear and succinct statement of the reason(s) for their termination 9. Employers should generally avoid making public statements about terminated employees and the reason for their termination 10. Discharges should be handled in a reasonable, dignified manner

Ch. 13 - Benefits How must an employer deliver promised benefits under step TWO of Title I under ERISA?

Administrators of benefit plans must: 1. base benefit determinations on plan documents 2. have reasons for their decisions 3. and use all the current and relevant information available to them ** If the plan administrator had discretion to determine eligibility for benefits, the decision will be reviewed under the abuse of discretion standard (employees may sue for a denial of benefits)

Ch. 5 - Background Checks What is a background check?

Background checks are used to verify information provided by candidates, and to determine whether any disqualifying factors exit

Ch. 19 - Downsizing and Post-term What are challenges employers face when doing a RIF?

Challenges come primarily from the National Labor Relations Act (NLRA) in two ways: 1. Downsizing might be an unfair labor practice (ULP) if it interferes with employees' NLRA rights or is used to discriminate based on union activities 2. Downsizing might be a mandatory topic of bargaining, requiring negotiation with union representatives prior to taking action (need to check CBA)

Ch. 6 - Testing How do courts respond to termination based on drug test results?

Courts are reluctant to protect at-will employees from termination based on drug tests, even if conducted improperly - otherwise too many claims would be raised which may cause employers to stop drug testing all together, ct. recogn. importance of dr. testing

Ch. 18 - Termination What is a disclaimer?

Disclaimers are written statements in employment documents that deny that those statements create any contractual rights binding on the employer

Ch. 6 - Testing Are disparate treatment claims possible based on drug test results?

Disparate treatment claims are possible if the drug tests results of otherwise similarly situated employees lead to one being fired, and the other given more lenient treatment based on his protected class characteristic

Ch. 19 - Downsizing and Post-term What is downsizing or reduction in force (RIF)?

Downsizing or Reduction in Force (RIF) refer to terminations that are based on employers' judgments that the number of employees, positions or facilities must be reduced

Ch. 13 - Benefits How does ERISA treat discrimination and what is their interpretation?

ERISA prohibits discrimination against a beneficiary for exercising any benefit right to which he is entitled or to which he may become entitled (rule applies to pension and welfare plans

Ch. 19 - Downsizing and Post-term Who is eligible / not eligible for unemployment insurance?

Eligible: 1. Employees who suffered involuntary unemployment and are able to work, available for work, and actively looking for work 2. To be eligible, employees must show "an attachment to the workforce" and be able and willing to accept suitable work 3. Most states establish eligibility by examining the claimant's work history over the base period prior to job loss Not eligible: 1. Employees who are discharged for misconduct or who voluntarily leave

Ch. 13 - Benefits What benefits must an employer provide?

Employers are required to make contributions on behalf of their employees to: 1. Social security 2. Unemployment insurance 3. Workers compensation

Ch. 19 - Downsizing and Post-term What is the Worker Adjustment and Retraining Notification Act (WARN)?

Employers covered by the WARN Act are: 1.prohibited from ordering plant closings or mass layoffs until the end of a 60-day period that follows the provision of written notice to affected employees (or to union representatives) and to state and local government officials

Ch. 4 - Recruiting Can an employer make medical inquiries prior to a conditional offer of employment and what would be considered a medical inquiry?

Employers must REFRAIN from seeking medical information from all applicants, disabled or not BUT an employer may ask the applicant about his ability to do the job, and ask him to demonstrate how he would do it

Ch. 16 - Performance Appraisals How should employers regarding giving feedback?

Employers should: 1. communicate performance appraisals to employees, 2. provide an opportunity for discussion, and 3. and allow employees to respond to and appeal them ** Employers should NOT attempt to avoid unpleasant confrontations by failing to provide employees with feedback about their performance and opportunities to improve performance that are routinely provided to other employees

Ch. 6 - Testing Are there exceptions to EPPA?

Exceptions exist for private employers in certain industries (controlled substances, nuclear power plants, etc.) ** However, such tests are permitted after an employee theft or other serious event -- Pencil and paper honesty tests are permissible

Ch. 6 - Testing Who must comply with the Drug-Free Workplace Act (DFWA) and what does this act require?

Firms that contract with the federal government must comply with DFWA 1. Develop & communicate policies concerning drug use, sale or possession in the workplace 2. Inform employees about the dangers of drug use and options for counseling and treatment 3. Establish penalties for drug use violations 4. Report any drug use convictions

Ch. 16 - Performance Appraisals How does the Drug Free Workplace Act (DFWA) affect employers in regards to training?

Firms that contract with the federal government must comply with the (DFWA), and 1. inform employees about the drug-free policy and dangers associated with drug abuse 2. advise regarding available options for counseling, rehabilitation, and employee assistance programs 3. advise potential penalties for drug violations ** Where 3rd parties may be injured, good training is required to avoid claims of negligent training

Ch. 4 - Recruiting AFTER a conditional offer of employment is made, can the employer make medical inquiries at that time?

Following a conditional offer of employment (hired if pass medical exam), the employer CAN make any medical inquiry or perform any type of medical exam (excluding genetic tests) ONLY IF all are subjected to same inquiries and medical exams ** The information learned may not be used to discriminate against qualified persons

Ch. 5 - Background Checks What is the timeline for a new employee to complete an I-9?

For all newly hired workers, WITHIN 3 DAYS, the employer must verify employment eligibility by completing federal I-9, which requires certain documents, including: 1. Driver's license 2. Birth certificate 3. US passport 4. Resident alien registration card 5. Unexpired employment authorization document And others

Ch. 18 - Termination What are the waiver requirements under the ADEA?

For employees over 40, compliance with the Age Discrimination in Employment Act (ADEA), requires very specific provisions, if waivers of ADEA claims are to be held valid: 1. Waivers must be plainly worded, written agreements that specifically reference the ADEA and suggest consultation with a lawyer prior to acceptance; 2. Legal consideration must be provided for acceptance; 3. Employees must be given at least 21 days to consider waivers (45 days for group early retirement offers); and 4. Waiver agreements do not become final—and can be revoked by the employee - until 7 days after acceptance

Ch. 18 - Termination How is the claim analyzed if a prima facie case is established?

If a prima facie case is established, the case is analyzed like other pretext cases, with the employer needing to articulate a nondiscriminatory reason for the term. and the plaintiff having the opportunity to show that the articulated rationale is pretext and that the decision was more likely motivated by discrimination.

Ch. 11 - Work-Life Conflicts What does FMLA apply to?

It applies to: 1. all governmental agencies 2. private employers of 50 or more

Ch. 11 - Work-Life Conflicts How is a serious health condition defined in regards to a qualifying event?

It involves inpatient care in a hospital, or continuing care by a health care provider, including the period of incapacity

Ch. 5 - Background Checks What is the standard to prove knowledge of unfitness?

Knowledge in this context refers to the fact that the employer was aware, or should have been aware if proper screening procedures were followed, that the person was unfit for the job

Ch. 18 - Termination How does the court treat employers changes to handbooks?

Many courts permit employers to unilaterally make changes to handbooks containing implied contracts provided employees are given reasonable notice, but some require more

Ch. 6 - Testing Can an employer require medical testing of current employees?

Medical exams of current employees are limited to inquiries that are job-related and consistent with business necessity

Ch. 4 - Recruiting What would be considered a MEDICAL INQUIRY prior to a conditional offer of employment?

Medical inquiries include: 1. Questions about disabilities 2. Medical and psychological conditions 3. Medical histories 4. Medications taken 5. Worker's compensation claims filed

Ch. 5 - Background Checks What is negligent hiring?

Negligent hiring extends the liability of employers for harm caused by their employees BEYOND actions taken within the scope of employment ** The careless or negligent hiring of an unfit employee may result in liability

Ch. 6 - Testing Can a state prohibit drug testing of employees?

No state prohibits all drug testing of employees - Some require drug testing of certain types of employees or under certain circumstances (e.g., post-accident)

Ch. 13 - Benefits How is the fiduciary duty of the employer defined?

One who exercises discretion or control over a benefit plan is a fiduciary, including employers and their agents who administer plans or give advice

Ch. 11 - Work-Life Conflicts What are the elements of a interference with FMLA rights claim? (6)

Plaintiff must show: 1. She was eligible for FMLA benefits and protection 2. Her employer was covered by FMLA 3. She experienced a qualifying event entitling her to FMLA leave 4. She provided her employer with sufficient notice of intent to take leave 5. She had not already exhausted her maximum leave entitlement for the relevant 12 mo. period 6. FMLA benefits to which she was entitled were delayed or denied by the employer

Ch. 18 - Termination What are the elements of a public policy exception to employment at will claim?

Plaintiff must show: 1. That a clear public policy existed relevant to their conduct (clarity element) 2. That discouraging the conduct in which they engaged would undermine this public policy (jeopardy element) 3. That engaging in conduct supportive of public policy resulted in termination (causation element) ** Plaintiff establishing these elements will prevail UNLESS the defendant is able to show that there was an overriding justification for the termination (absence of justification element)

Ch. 11 - Work-Life Conflicts What are the elements of a USERRA failure to reinstate claim?

Plaintiff must show: 1. The employer was informed that the employee needed leave to fulfill military duties 2. The employee received an honorable discharge from active military service 3. The employee make a timely (usually w/in 90 days) request to be reinstated 4. The employer denied reinstatement, or failed to fully reinstate by restoring the employee to the T's & C's of employment that would have prevailed had the employee not left to engage in military service

Ch. 5 - Background Checks What are the elements of a negligent hiring claim?

Plaintiff must show: (no burden shifting, if Pl. can show all elements then basis for claim is met) 1. A standard of conduct or duty to others existed with respect to taking reasonable steps to avoid hiring unfit employees. 2. The employer failed to exercise the proper degree of care and hired an unfit employee 3. A coworker or another 3rd party was harmed by the unfit employee 4. The employer's failure to exercise the proper degree of care in hiring was the proximate cause of the harm or injury that occurred.

Ch. 19 - Downsizing and Post-term How is "plant closing" defined under the WARN Act?

Plant closing is defined by the Act as a: 1. permanent or temporary shutdown of a single employment site when that shutdown results in employment loss during any 30-day period for at least 50 full-time employees

Ch. 18 - Termination What are the elements of a disparate treatment in termination claim?

Prima facie case of discriminatory discharge, Plain.show: 1. the protected class characteristic relevant to case 2. Up to the point of term., the employee had been meeting the employer's legitimate perform. expectations 3. The employee was terminated (formally or constructively) 4. The employer sought a replacement or hired one w/ contrasting protected class characteristics, or 5. A similarly situated person with diff. protec. class engaged in similar conduct but was not term.

Ch. 18 - Termination What are the legal standards governing termination for public, private and union employees?

Public & union = just cause / due process Private = Employment at will with exceptions

Ch. 6 - Testing Can public employees be subject to random drug tests under the constitution?

Random drug testing by public employers is prohibited by the FOURTH Amendment to the U.S. Constitution, prohibiting UNREASONABLE SEARCH AND SEIZURE, and some state constitutions

Ch. 6 - Testing How does random drug testing affect union members?

Random drug testing of union members is a topic of MANDATORY bargaining, and depends on the Collective Bargaining Agreement (CBA)

Ch. 13 - Benefits What is the rule of thumb regarding how an employer should avoid discriminating against an employee/beneficiary?

Rule: Employers must not discharge or discriminate against employees because they have used benefits to which they are entitled or to prevent them from using benefits to which they are entitled

Ch. 18 - Termination What is the rule regarding the public policy exception?

Rule: Employers must not terminate employees for refusing to commit an illegal act, exercising a legal right, performing an important public duty, or reporting illegal activities of employers and their agents

Ch. 19 - Downsizing and Post-term What does the ADEA prohibit regarding retirement?

The (ADEA) prohibits mandatory retirement except for certain persons in bona fide executive and high policy-making positions. **Rule: Employers must not force employees to retire when they reach a certain age.

Ch. 19 - Downsizing and Post-term What are the elements of a discriminatory discharge due to AGE in a RIF claim? (part one)

The Plaintiff must estab. a prima facie case by showing: 1. The downsized employee was age 40 or over 2. He was selected for term. from a larger group of candidates 3. He was performing at a level at least substantially equivalent to the lowest level among the group of employees retained. 4. The group of employees retained included one or more substantially younger employees who were not performing any better than the termed employee OR ...

Ch. 19 - Downsizing and Post-term How do you determine if the WARN Act applies to an employer?

The WARN Act applies to employers: 1. with 100 or more full-time employees OR 2. 100 or more full- and part-time employees working at least 4,000 hours per week ** Counting employees to determine whether WARN applies is problematic because downward fluctuation in employment levels is inherent in the circumstances under which the Act is applied

Ch. 5 - Background Checks In a negligent hiring claim, what is the standard duty of care based on?

The extent of any such duty is based on: 1. Foreseeability of harm to others if an unfit person is hired for a particular job 2. Knowledge of unfitness that the employer had or should have had if proper hiring procedures were used 3. Public policy

Ch. 6 - Testing What is the standard rule under the ADA regarding drug testing?

The inquiry must be whether: 1. the employee is able to perform the essential functions of the job, WITH or WITHOUT REASONABLE ACCOMMODATION. - If the applicant is able, the medical condition does NOT disqualify him.

Ch. 13 - Benefits What are the employer's fiduciary duties in regards to managing benefits under step FOUR of Title I under ERISA?

Their fiduciary duties include: 1. managing such assets solely for the benefit of the beneficiaries, with prudence 2. For pension plans, diversifying plan assets, monitoring performance, and refraining from transactions that raise a conflict of interest 3. providing accurate information and disclosing material facts

Ch. 6 - Testing Are there any exceptions to GINA? (4)

There are narrow exceptions to GINA's protections: 1. voluntary disclosure 2. medical leave requests 3. public sources 4. permit employers to monitor the biological effects of toxic substances at work

Ch. 18 - Termination What is the recommendation for employers regarding use of disclaimers?

To maintain employment at will, employers should use disclaimers in employee handbooks and other employment documents - Disclaimers should be communicated to employees and employees should acknowledge receipt in writing - But disclaimers are not foolproof

Ch. 5 - Background Checks What is "respondeat superior"?

Under respondeat superior, employers are liable for the harm to others caused by their employees acting within the scope of employment. ** if action is not within employees scope of employment, employer may not be liable for negligent act

Ch. 6 - Testing What must an employer do in order to comply with the ADA in regards to drug testing?

Under the (ADA), an employer must not fail to: promote, terminate, or otherwise discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs.

Ch. 11 - Work-Life Conflicts Does an employer have to provide continuous or intermittent leave?

Whether the leave is continuous leave or intermittent leave depends on the qualifying event necessitating the leave ** One kind of intermittent leave is a reduced leave schedule, where the employee's normal daily or weekly work hours are reduced HOWEVER, employer does not have to allow intermittent leave for childbirth

Ch. 5 - Background Checks What is the standard to prove foreseeability?

Would a reasonable person have foresee that hiring an unfit person for the job was likely to harm others?

Ch. 4 - Recruiting Can an employer use social media to identify and screen job candidates?

Yes BUT the danger is that of pre-employment inquiries **Using social media may cause employers to become privy to the protected class information of job candidates *** In the absence of state law, employers must decide whether the information they obtain from social media is worth the potential discrimination claims

Ch. 6 - Testing How is a "medical examination" defined?

any "procedure or test that seeks information about an individual's impairments or health," - but which tests are medical exams is not always clear - If a test is a "medical exam," then it is covered by the Americans with Disabilities Act (ADA)

Ch. 18 - Termination What is the public policy exception to employment at will?

employers are liable for wrongful discharge when they terminate employees for taking actions that public policy requires or commends (Employees are also citizens with rights and duties in the larger society Employers occasionally want their employees to act in ways that are contrary to the public good)