Employment Law

Quid Pro Quo Sexual Harassment

* "This for that" * Most obvious type of sexual harassment * Sexual favors in exchange for a tangible employment action (promotion, raise, demotion, etc.)

Mixed Motive Case

* A case in which an employer had both legitimate and illegitimate reasons for making an employment decision. * Unlawful practice is established when the discriminatory factor motivated employment practice, even if another non-discriminatory factor was present * Employers cannot avoid guilt or liability by demonstrating they would have taken the same employment action even without the discriminatory motive. * USSC ruled that mixed-motive claims are never permissible under the Age Discrimination in Employment Act (ADEA).

Business Necessity * in the case Discrimination

* A defense in disparate impact cases * Business Necessity uses BFOQ as a defense * Requires employer to show the practice is job-related and necessary to the safe and efficient performance of the job * The practice must be valid and no other practice is available or as good * Validity is the big take away here - it is the degree to which the test or practice is related to or predicts performance on the job * Educational requirements often are based on business necessity. However, an employer who requires a minimum level of education, such as a high school diploma, must be able to defend the requirement as essential to the performance of the job (job related), which may be difficult * Ex. Spurlock v. United Airlines - requiring that pilots have a college degree and 500 flight hours

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) * AKA Welfare Reform Act * AKA Federal Personal Responsibility and Welfare Reconciliation Act

* All employers must report certain data about new hires to a designated state agency. * 2 goals 1) Assist persons entitled to child-support obtain their money through wage garnishments, wage assignments, etc. 2) Detect and prevent fraud in government benefits payments. * Welfare component -- requires reduction or elimination of benefits if recipient refuses to participate in an assigned work activity. -- Requires a return to work within 2 years after being on public assistance

Railway Labor Act of 1923 (RLA)

* Allowed unionization for airlines and railroads

Americans with Disabilities Act Amendment (ADAAA) 2008 1) What lists did it expand 2) Are impairments that are episodic or in remission covered? 3) Are transitory or minor disabilities covered? 4) what was changed referring to "regarded as"?

* Amended ADA * Broadened the scope of what is considered a disability 1) Expanded 2 non-exhaustive lists of "major life activities" ---- Major life activities (such as walking, reading, bending, communicating) ---- Major bodily functions (such as digestive, bowel, bladder, neurological, respiratory, circulatory, etc.) * Measures other than ordinary eyeglasses or contact lenses shall not be considered in assessing whether an individual has a disability. 2) Yes - Impairments that are episodic or in remission are still considered disabilities if it would substantially limit a major life activity when active. 3) No 4) It changed the definition of "regarded as" so it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and it instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor. * Memory Device: Has 2 more AA then the ADA - Amended the ADA by creating 2 lists

Labor Management Relations Act of 1947 (LMRA) * aka Taft-Hartley act

* Amended NLRA/ Wagner Act with provisions aimed at limiting union power in 4 ways: 1) Outlined additional union unfair practices (see Labor slides) -- limits some strikes 2) Defined the rights of employees as union members (see labor slides) 3) Defined the rights of employers (see labor slides) -- bans closed shops -- prohibits compulsory union membership or paying dues as condition of employment 4) National emergency strikes -- those that can endanger national health or safety -- President can seek an injunction that bars a N.E.S for 60 days -- if no settlement reached can extend another 20 days * Enlarged the NLRB * Right to work laws: -- Gives states power to enact statutes that prohibit unionized employers from: 1) requiring union membership 2) paying any union dues as a condition of employment * Required that before terminating a collective-bargaining agreement, the union or employer must serve notice to the other party and to a government mediation service Memory Spark:

Employee Privacy * Who is covered * What are 4 instances where an employee has the right to privacy

* Applies to private sector employees * Intrusion into someones personal life without just cause. Invaded person has the right to sue for damages against the person or entity that intruded * 4 instances of intrution: 1) intrusion on one's solitude or into one's private affairs 2) public disclosure of embarrassing private information 3) publicity which puts them in a false light to the public 4) appropriation of one's name or picture for personal or commercial advantage.

Pennsylvania State Police v. Suders (2001) * Sexual Harassment * Title VII

* Big take away - first time USSC recognized that employers may be held liable under Title VII for CONSTRUCTIVE DISCHARGE. The Court also held that constructive discharge may be considered a tangible employment action, and that in certain circumstances, an employer may raise an affirmative defense against a claim of constructive discharge. * Case where Suders quit her job claiming being sexually harassed and that her supervisor lied about her test results over and over. She contacted the state police EEO, but never filed a report because the officer did not tell her how to obtain the necessary form. * USSC ruled an employee can file a constructive discharge lawsuit if faced with an intolerable workplace situation in which a reasonable person would feel compelled to resign. * Limits an employer's liability in a sexual harassment case if the employer can prove that safeguards are in place to prevent the harassment but that the plaintiff did not take advantage of them Memory Spark:

City of Richmond v. J.A. Croson Company (1998) * Affirmative Action

* Big take-away: A company cannot create an AAP if it has not laid proper groundwork for the regulation and/or had neither identified nor documented discrimination * In this case the City required companies with construction contracts to subcontract 30% of their business to minority owned businesses. * Croson Company sued because it had lost the contract due to this 30%. * USSC ruled in favor of Corson saying the regulation was unconstitutional as it had not laid proper groundwork Memory Spark:

Lilly Ledbetter Fair Pay Act of 2009

* Big takeaway is that this redefines the statute of limitations someone can bring a pay discrimination case * Expanded time period an individual has to file a pay discrimination claim * Clarifies that discrimination based on age, religion, national origin, race, sex and disability will "accrue" every time the employee receives a paycheck that is deemed discriminatory. * Each paycheck that delivers discriminatory compensation is actionable under EEO laws regardless of when discrimination began * Including -- Title VII -- ADEA -- ADA * Employee has 180-300 days to file an EEOC charge

Office of Federal Contract Compliance Programs (OFCCP)

* Branch of the DOL's Employment Standards Administration * Audits federal contractors * Main goal is to evaluate and identify underutilized groups of minorities - when this occurs the organization being investigated must put into place an affirmative action plan

Risk Management

* Can be positive, negative or increase the ambiguity of a situation * Event or occurrence, a deviation from the norm, or an outcome or consequence of an action * Organizations must assess risk in terms of their goals and objectives to determine if meeting those goals is possible and what the risk associated with those goals might be * ISO 31000 (International Organization for Standardization) are the risk management guidelines applicable to public or private-sector organizations. Published by the International Organization for Standardization

General Dynamics Land Systems Inc. v. Cline * Age Discrimination

* Case where someone 40 years old cannot sue because someone older gets preferential treatment/benefits etc. * Under new contract General Dynamics offered full health benefits only to retirees 50 years and older. Cline sued saying it was age discrimination not to offer benefits to employees who were 40-49. * Court ruled against Cline saying the ADEA does not protect younger workers, even if they were over the age of 40 from workplace decisions that favor older workers. Memory Spark: As you AGE, your health deCLINEs and you need BENEFITS

Safety Management * 3 Causes of Workplace Accidents

* Chance Occurrences - unplanned events. Hard to plan for and avoid (ex. baseball thru window) * Unsafe Conditions - defective equipment, ventilation, lighting, storage * Unsafe Acts - accident proneness is situations (ex. forgetting to wear a hard-hat)

Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)

* Continuation coverage * Former employees who leave their job or are terminated -- allowed to continue health insurance coverage for 18 months -- at full cost or up to 102% to the individual * Qualified dependents (Spouse or Dependent child) in certain circumstances (death, divorce, entitled to medicare) - allowed to continue health insurance coverage for 36 months -- at full cost or up to 102% to the individual * Provisions of COBRA covering state and local government plans are administered by the Department of Health and Human Services administer plans on * Is not extended to employees terminated for gross misconduct. * Amended ERISA

Equal Employment Opportunity Commission (EEOC) 1) Under what 3 laws can the EEOC bring legal action? 2) what department does it fall under

* Created by the Civil Rights Act of 1964 * Investigates claims of discrimination and attempts to resolve them 1) Have the power to bring legal action if an organization fails to comply with Title VII, ADEA and ADA 2) None - Is a stand alone agency - NOT part of DOL

Fair Credit Reporting Act of 1969 (FCRA)

* Defines standards of the collection, use and communication of credit reports and other personal information about individuals * Makes it ok for employers to obtain a consumer report for employment purposes if they get written authorization from the individual * If an employer takes adverse employment action because of the report, they must provide a copy to the individual Memory Spark: It's fair to hire based on credit report

ADA *4 Defenses

* Disability poses a direct threat * Qualification standards are job-related and consistent with business necessity * Employers are not required to tolerate misconduct or erratic performance, even if the behaviors can be attributed to an employee's disability * Do not have to create a new job for a disabled worker or reassign that person to a light-duty position for an indefinite period unless such a position exists

Washington v. Davis (1976) * Discrimination Case * Title VII

* Disparate Impact case - race * Case where two black applicants sued the mayor after being rejected by the city police dept. Stating the police departments recruiting/selection procedures which required a written personnel test discriminated against racial minorities and was not related to job performance. * USSC ruled in favor of the police department saying the tests did not have discriminatory intent and were racially neutral measures of employment qualification. Memory Spark:

Smith v. Jackson, MI (2005) * Age Discrimination

* Disparate Impact case under ADEA * USSC - first time they ruled plaintiffs can bring a disparate impact claim under the ADEA * Narrower scope of liability under ADEA than under Title VII and an employer may not be liable if it can show that a policy or practice is based on a "reasonable factor other than age" * Smith and a group of other police dept. employees over age of 40 sued city and police dept., alleging that salary plan had a disparate impact against older workers thus violating ADEA Memory Spark:

St. Mary's Honor Center v. Hicks (1993) * Discrimination case * Title VII

* Disparate treatment case - race * Case where Hicks, a black man was demoted then fired from half-way house he worked at. He sued under Title VII saying he was fired b/c of race * District court found that Hicks established a prima facie case of racial discrimination under the McDonnell Douglas burden-shifting framework. * The employer gave non-discriminatory reasons for the firing, but Hicks established that those reasons were pre-textual (i.e. not the real reasons for his firing). *Original ruling that once Hicks proved the employers reasons were pre-textual he was entitled to judgement as a matter of law. * USSC reversed the ruling stating that a plaintiff (Hicks) in a d.t. case is not entitled to judgment as a matter of law for disproving the employer's explanation for its alleged discriminatory conduct. Instead, the plaintiff (Hicks) must make the much different and greater showing that the defendant unlawfully discriminated based on Hicks protected status. Memory Spark: St. Marys TREATS the sick St. Mary's (religion) can be a Burden (of proof)

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)

* Effort to strengthen and streamline U.S. immigration laws. * Incorporates employment eligibility verification guidelines * Designed to improve border control by -- imposing criminal penalties for racketeering -- alien smuggling -- the use or creation of fraudulent immigration-related documents * Employment eligibility verification guidelines are also incorporated, including sanctions for employers who fail to comply with the regulations and restrictions on unfair immigration-related employment practices

Monitoring, surveillance, privacy

* Employers have the right to monitor what is said and transmitted through their organization's email and voicemail systems. * Employers may also monitor, observe and search employee areas (i.e., desks, files, lockers, company files) without search warrants if they believe work rules have been violated. * Some laws such as the ADA protect employees rights to privacy (such as medical records)

Employment at Will 1) What 3 types of employees are excluded from at-will employement 2) Name the 3 major exceptions

* Employment may be terminated by employer or employee at any time and for any or no reason as long as not illegal reason. Employer does not need good cause to terminate * Also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages, terminate benefits, or reduce paid time off. 1) Employees Excluded -- Government employees -- Employees under collective bargaining agreements -- Employees who have an individual contract with employer 2) Major exceptions ---- public policy exception ---- implied contract exception ---- breach of the covenant of good faith and fair dealing

Social Security Act

* Established a permanent national old-age pension system through employer and employee contributions * the system was later extended to include dependents, the disabled, and other groups.

McKennon v. Nashville Banner Publishing Co. (1995) * Age Discrimination

* Established that an employer cannot use "after-acquired evidence" to avoid liability for discrimination, and that the employer is liable for its discriminatory acts even when it later finds evidence that would have led to the adverse employment action for lawful legitimate reasons. * In this case McKennon who worked for Nashville Banner for 30 years and was 62 years old was fired as part of a reduction in the company's workforce sued for age discrimination under the ADEA. In trial she admitted to taking home confidential paperwork and sharing them with her husband. While this was legal grounds for termination, the fact that it came out after she was fired does not give the company the right to use it as their reason for firing her. * The Court ruled in favor of McKennon Memory Spark: Publishing is old and you take it home to read

National Labor Relations Act of 1935 (NLRA) * AKA The Wagner Act

* First main union law * Created NLRB * Outlined the rights of Private-sector employees (Labor slide) -- right to form and join union -- right to bargain collectively * Outlined and banned EMPLOYERS from using certain unfair labor practices (ULPS) (Labor slides) * Outlined and banned UNIONS from using certain unfair labor practices (ULPS) (Labor slides) * Granted unions fundamental rights and powers (Labor Slides) * Created secret-ballot elections and majority rule for determining if employees were to unions * Exempt -- Federal, State and local governments -- Private sector companies with municipal functions -- religious schools * Not Covered by the Act -- Agricultural and domestic employees -- independent contractors -- Supervisors -- Employees covered under the Railway Labor Act Memory Spark:

Unlawful Workplace Harassment * what 3 laws does harassment fall under * what types of people are protected from harassment

* Form of employee discrimination that violates Title VII, ADEA and ADA * Can be based on race, color, religion, sex (including pregnancy), national origin, age (older than 40), disability or genetic information. Memory Spark: Title 7 plus A, D, G

Employment contract

* Formal agreement between two parties that outlines the terms and conditions of employment to which the parties agree * When the agreement is accepted, the contract dictates the employment relationship * The contract may be oral or written, express or implied

Kolstad v. American Dental Association (1999) * Discrimination case * Title VII

* Gender Discrimination * Established and clarified when punitive damages can be awarded in employment discrimination cases. * Case where Kolstad (female) sued the ADA when it promoted a man instead of her. * 1st court ruled against her saying she did not prove the employer acted with "malice and reckless indifference" toward her. * USSC reversed ruling saying that if the employee can show that the employer acted with malice and reckless indifference toward the law (rather than the employee), then punitive damages can be awarded. Memory Spark: Dental Dams (PUN intended) - Punitive Damages

Uniform Guidelines on Employee Selection Procedurs

* Goal is to assist employers in equal employment opportunity without discrimination * Created uniform framework for the use of tests and other selection procedures used to make employment decisions, including interviews, review of experience or education from application forms, work samples, physical requirements, and evaluations of performance. Training and transfer sometimes covered too. RECRUITMENT and SENIORITY are not considered selection procedures under the guidelines * Not a law or legislation - but have been identified by the courts as a source of technical info and given deference in litigation concerning employee issues *Provides info on selection rates (4/5th rule)

Explain the 4/5th rule * AKA Disparate Rejection Rates Approach

* Hiring/selection rate of minority group is LESS than 80% of the hiring rate of the majority group * Used for race, ethnic and sex group Ex. Selection rates (hired/applied) # Hired / # Applied = selection rate (s.r.) To determine if Disparate Impact: * s.r. of minority group / s.r. of majority group * If LESS than 80% you may have grounds of adverse impact Men: 20/110=18% Women: 15/150=10% Caucasians: 40/100=40% African Americans: 60/180=33% Latinos: 12/75=16% * Adverse impact between men and women? 10/18=55%, maybe evidence * Adverse impact between Caucasians and African Americans? 33/40=88%, no evidence * Adverse impact between Caucasians and Latinos? 16/40=40%, maybe evidence

Harris v. Forklift Systems Inc. (1993) * Sexual Harassment * Title VII

* Hostile Work Environment case * Court ruled in favor of Harris and stated that as long as harassment can be perceived by a REASONABLE PERSON to be hostile or abusive, there is no need to prove that it was psychologically injurious * Harris sued her employer for sexual harassment that created an "abusive work environment". * Employer contended that the harassment was not sever enough to seriously affect her psychologically or impair her ability to work and that it therefore did not create an abusive work environment under the meaning of Title VII. Memory Spark: A reasonable person can use a fork

Oncale v. Sundowner Offshore Services Inc. (1998) * Sexual Harassment * Title VII

* Hostile Work Environment case * Joseph Oncale sued his employer alleging sexual harassment from male co-workers and supervisor. *USSC ruled in Oncale's favor * Established for the first time that sexual harassment can occur between people of the same gender Memory Spark:

Faragher v. City of Boca Raton (1998) * Sexual Harassment * Title VII

* Hostile Work Environment case * The employer is held liable for the actions an employee takes which creates a hostile work environment that results in employment discrimination. * Case where a lifeguard quit her job sued the city and her immediate supervisors alleging that the supervisors created a sexually hostile work environment by touching, remarking, and commenting * USSC ruled in favor of Faragher saying city was vicariously liable for supervisors behavior Memory Spark: Florida has lots of beaches

Burlington Industries Inc. v. Ellerth (1998) * Sexual Harassment * Title VII

* Hostile Work Environment case * Big take away is the Affirmative Defense * In this case the USSC: --- distinguished sexual harassment that does and does not result in a tangible action: ---- in sexual harassment cases with tangible employment action the employer is ALWAYS liable. ---- in harassment cases where there is no tangible employment action an employer will have AFFIRMATIVE DEFENSE to liability and damages if: 1) employer exercised reasonable care to promptly correct the harassing behavior 2) the employee failed to take advantage of any preventative or corrective opportunities (such as reporting the incident) * Case where Ellerth quit her job after 15 months b/c she claimed sexual harassment by supervisor. No tangible adverse employment action, and was promoted once. * She had remained silent about the sexual harassment and did not inform anyone this was going on even though she knew company had a sexual harassment policy. Memory Spark:

Walsh-Healey Public Contract Act of 1936

* If federal contract equals $10K+ then they must pay employees federal minimum wage and overtime

Johnson v. Santa Clara County Transportation Agency (1987) * Affirmative Action

* In this case a female employee was promoted over a male who scored higher on a test. Both were qualified for the job. Because of under-representation by women, the company did take gender into consideration. * Court ruled in favor of the company stating: Agencies can take voluntary affirmative action to either 1) remedy its own prior discriminatory practices 2) remedy a manifest imbalance in traditionally segregated job categories Memory Spark:

Piscataway Board of Education v. Taxman (1996) * Affirmative Action * Title VII

* In this case a school needed to eliminate a teaching position. Both a white (Taxman) and black (William) teacher were hired on the same day . The school kept the black teacher in interests of diversity since there was only 1 other black teacher and 50% of their students were minorities. The white teacher sued and won. * USSC ruled that race-based employment decisions are only permissible in 2 situations 1) to remedy the effects of past employment discrimination 2) to remedy a manifest of racial imbalance in the workforce NOT to promote racial diversity Memory Spark:

United Steelworkers v. Weber (1978) * Affirmative Action * Title VII

* In this case the Steelworker company began an AAP to increase the # of African American craft workers and held half of the spots for African Americans. Weber, a white guy sued under reverse discrimination. * USSC ruled in favor of the company under Title VII an AAP that takes race into account is lawful if it serves a remedial purpose, is only a temporary action to reverse archaic patterns of racial segregation and did not prohibit white employees from advancing in the company. * Big take away: private-sector employers could take steps to implement an AAP under Title VII Memory Spark:

Basic Security Plan

* Instituting a basic security program requires four steps: -- Analyzing the current level of risk -- determining likely threats based on what the company does and where they are located.) * Then installing: -- natural security systems (architectural features) -- mechanical security systems (locks, alarms, surveillance) -- organizational security systems (good management)

Hostile Work Environment - Harassment * what are 3 behaviors that create a hostile work environment

* Interferes with employee's performance * Creates intimating or humiliating environment * Affects employees emotional and psychological well-being

Griggs v. Duke Power Co. (1971) * Discrimination case * Title VII

* Landmark case established disparate impact theory (adverse impact) * Created the Business Necessity Defense * Burden of proof is on the employer to show that hiring standards are job related if they have an unequal impact on members of a protected class. Intent or lack thereof is irrelevant. * Discrimination need not be overt to be illegal * Established that lack of intention to discriminate isn't a defense against claims of discrimination * Case where Griggs sued under Title VII claiming that Duke Powers requirement that coal handlers be high school graduates or pass an intelligent test was discriminatory. * USSC ruled employers are required to show that job requirements, policy or procedure are job related. Memory Spark: POWER = IMPACT Memory Spark: Power is necessary to run a business

McDonnell Douglas Corp. v. Green (1973) * Discrimination case * Title VII

* Landmark disparate treatment case - race * Case where Green, a black mechanic who was also a civil rights activist was discharged in the course of a general reduction in workforce. Following the termination he participated in illegal (but non-violent) acts of protest against the company. * USSC ruled in favor of the company to lay off employees as long as there was a reason (not including race) and put the burden of proof on the plaintiff to show that the employer's legitimate reason was not pretextual. * Established the 4 rule framework for proving disparate treatment. * If the plaintiff can prove the 4 rules, the employer must show a legitimate lawful reason why the individual was not hired or fired. Memory Spark: McDonell = Mechanic Memory Spark: You TREAT a pool if it turns green

Meritor Savings Bank v. Vinson * Sexual Harassment * Title VII

* Landmark? Hostile Work Environment case * This is the case where the USSC held that sexual harassment does not need to result in a tangible action, established hostile work environment * Vinson who was fired from her job sued the bank and V.P. saying she had been constantly subjected to sexual harassment. The harassment, she contended, created a hostile working environment under Title VII and sought injunctive relief and compensatory and punitive damages * USSC ruled in favor of Vinson Memory Spark: Banks robberies are Hostile

OSHA Inspection Priorities * List the 6 types of inspection in order 1) how long does an employer have to report an accident 2) How long does OSHA have to respond to immediate danger complaints? 3) How long does OSHA have to respond to serious hazard complaints 4) How long does OSHA have to respond to non-serious complaint filed in writing by worker or union

* Listed in order ---- Imminent danger situations ---- Catastrophes, fatalities, and accidents that have already occurred ---- Valid employee complaints of violations ---- Referrals from other agencies, or organizations ---- Follow-up checks ---- Planned or programmed investigations --- willful and repeated 1) employers must report within 8 hours 2) 24 hours 3) 3 working days 4) 20 working days

Immigration Reform and Control Act of 1986 (IRCA)

* Makes it illegal to employers to discriminate based on an individual's national origin or citizenship status. * Prohibits employers from knowingly hiring aliens who are not authorized to work in the U.S. * Requires employers to complete I-9 form for all new employees within 3 days of hire to verify the individual is authorized to work in the U.S. Memory Spark:

Desert Palace Inc. v. Costa

* Mixed Motive case * USSC ruled that plaintiffs do not have to provide evidence of explicitly discriminatory conduct, can instead provide circumstantial evidence * Costa fired from her job at casino, she claimed sexual harassment. In court judge ruled that if sexual harassment took place, then even if fired for other reasons she was still in the right. Memory Spark: Stevi is like a showgirl, Casino

Electronic Communications Privacy Act (ECPA)

* Only Federal law that directly governs monitoring of electronic communications in the workplace * Wiretap Act restricted the interception or monitoring of oral and wire communications * ECPA amended Wiretap Act to include electronic communication such as email

Norris-LaGuardia Act of 1932

* Precursor to more sweeping Wagner Act * Limited courts' ability to issue injunctions (stop orders) against activities such as: -- organizing -- striking -- peaceful picketing -- payment of strike benefits -- boycotting * prohibited "yellow-dog" contracts -- promises by employees that they would NOT join the union * Protected rights of employees to engage in union activities against Employers and Judges * Employees have the right to bargain collectively free from interference, restrain, or coercion. * Did little to restrain employers from fighting unions

Americans with Disabilities Act of 1990 (ADA) * what does the ACT state and who is covered 1) Who is a qualified individual 2) when is it OK for an employer NOT to make a reasonable accommodation 3) must an employer lower performance standards or stop using tests 4) Can employers ask for a medical exam 5) Can employer ask health related questions 6) What employers does the law pertain to

* Prohibits discrimination against qualified disabled people who: -- Physical or mental impairment that substantially limits one or more major life activities -- have a record of such impairment -- is regarded as having such impairment * Requires employers to make reasonable accommodations. Only law that imposes a duty on the employers to accommodate a protected class. 1) Qualified Individual is one who with or without a reasonable accommodation can carry out the essential functions of a job 2) when it would cause undue hardship 3) No 4) Not before a contingent job offer has been made. Medical exams (or testing) for current employees must be job related. A job offer may be contingent upon the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. 5) May ask pre-employment questions about essential job functions but cannot make inquiries about disability 6) Applies to Private sector, state and local governments, employment agencies and labor unions with 15+ employees

Older Worker Benefit Protection Act (OWBPA)

* Prohibits discrimination in benefits based on age * Illegal to target older workers for staff-cutting programs *Protects employees who waive their right to sue for possible age discrimination. * Established requirements in order for the older worker to waive their rights and have it be binding -- in writing, clearly written -- specifically refer to ADEA rights -- give employee 21 days to review -- give 45 days if in conjunction with a group workforce reduction of an incentive for voluntary termination -- Employee has 7 days to revoke after signing -- advise employee to consult attorney before signing it * Amended ADEA

Employee Polygraph Protection Act (EPPA)

* Prohibits employers from using lie detector tests for pre-employment screening or during the course of employment * Applies to private-sector employers * Federal, state, and local government agencies are exempt

Newborn Mother's Protection Act of 1996

* Prohibits health insurance plans from offering incentives to leave the hospital sooner than recommended after childbirth * plans that offer maternity coverage must pay for at least: -- a 48 hour hospital stay after childbirth -- 96 hour stay after c-section

Pregnancy Discrimination Act of 1978 (PDA) * what is it * what 3 stages are covered * who must pregnant employees be treated like * what law did it amend

* Prohibits sex discrimination based on pregnancy, childbirth, or related medical conditions * Employer cannot refuse to hire a pregnant woman because of her pregnancy * Temporarily disabled employees: ex: if the employer allows temp. disabled employees to modify tasks, perform alternative assignments or take disability leave or leave without pay, the employer must allow pregnant employee to do the same. * Amendment to Title VII

Sarbanes-Oxley Act of 2002 (SOX) aka: Public Accounting Reform and Investor Protection Act 1) who does it apply to

* Protects Whistle-blowers - this is the main HR concern 1) Applies to publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission (SEC) * Was enacted in response to ENRON and other investment/financial scandals * Top executives must certify the accuracy of financial information and reporting. Failure to do so could result in significant fines and penalties. Memory Spark: Whistle the baseball song (white sox)

Whistle-blowing

* Protects employees from employer retaliation for airing grievances to employers, unions, or government agencies about unsafe working conditions, public safety hazards, and securities fraud *Also protects employees from retaliation for engaging in other related protected activities * Whistle-blowers cannot be transferred, denied a raise, or be the victim of any other negative employment-related decision or action because they exercised their rights under the law

Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

* Protects military service members civilian re-employment rights and benefits for veterans. * Prohibits discrimination based on military service or obligations * Established 5 years as the cumulative length of time an individual can be absent from work for military duty and retain re-employment * Requires returning service members be re-employed in the job they would have attained had they not been absent with same seniority, status and pay * Clarified and strengthened the Veterans' Reemployment Rights (VRR) statute. Memory Spark: U.S. A.

Safety Management * Ways to Prevent Accidents

* Reducing Unsafe Conditions -- best way to reduce overall risk of an accident * Reducing Unsafe Acts through: -- Emphasizing Safety - create culture of safety -- Selection and Placement - properly screen candidates. Employee Reliability Inventory (ERI) measures emotional maturity, safe job performance -- Training - especially for new employees -- Motivation - posters, incentive programs * Use Behavior-Based Safety - identify behaviors that lead to accidents, then train against those behaviors * Use Employee Participation * Conduct Safety and Health Audits and Inspections

Equal Pay Act of 1963 (EPA) * what is it * which law did it amend

* Required employers provide equal pay for "substantially equal" work, regardless of sex. (equal: skills, effort, responsibility, working conditions in the same establishment) * Employers can pay men & women differently for substantially equal work as long as the difference is not based on gender -- ex. seniority, performance, working in different locations * Employer cannot reduce the wages of either sex to equalize pay * Covers all types of pay -- salary -- overtime -- bonuses -- pay for time not worked -- stock options -- profit sharing plans * Amended Title VII in 1972 * Amended FLSA

Worker Adjustment and Retraining Act of 1988 (WARN)

* Requires employers with 100+ employees provide at least 60 days advance notice before a "plant closing" or "mass layoffs" * Does not apply to closure of temporary facilities, or completion of an activity when workers were hired only for the duration of that activity Memory Spark: Must WARN employees of plant closure

Drug Free Workplace Act of 1988

* Requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency. * does not apply to subcontractors or sub-grantees. * Employee convicted of a criminal drug violation in the workplace must notify the employer within 5 days of conviction

Safety Management

* Safety management attempts to increase safety, reduce accidents and their associated costs such as workers' compensation and possible fines. * Often effective safety management programs are what differentiate good organizations and those targeted by OSHA

Mental Health Parity Act of 1996

* Set minimum mental health care benefits * Prevents large group health plans from placing annual or lifetime dollar limits on mental health benefits that are lower than limits on medical and surgical benefits under the same plan * do NOT apply to small group health plans

Employer Retirement Income Security Act of 1974 (ERISA)

* Set minimum standards and requirements to ensure plans are established and maintained in a fair and financially sound manner * Private-sector, voluntarily-established employee benefit plans * Benefit plans include -- health care benefits -- profit sharing -- pension plans. * Doesn't force companies to have plans but if you have one, requires transparency to employees (reporting) * Must provide employees with info on plan features and funding * Increased fiduciary responsibilities for those who manage and control plan assets * Outlines vesting rights * Set requirements on how employees can establish a grievance process

Davis-Bacon Act of 1931

* Set wages federal government contractors working as laborers and mechanics. * If contractor makes $2K in federal contracts per year they must pay their laborers and mechanics the same wage rates and fringe benefits that these roles earn outside of federal contract work

Fair Labor Standards Act of 1938 (FLSA)

* Sets Minimum wage for non-exempt employees. * Employee gets benefit of doubt on minimum wage if state and federal vary * Establishes Overtime pay for non-exempt employees -- 40 hours / per work week -- overtime pay is 1.5 times * Child labor laws -- limits hours kids under 16 can work, time of day, # of hours, summer -- prohibits kids under 18 from working dangerous jobs * Determines which employees are exempt and non-exempt * Covers: -- Full and part time workers in private sector -- Full and part time workers in federal, state, and local governments -- public agencies -- businesses engaged in interstate commerce or providing goods and services for commerce. * Exempt Employees -- employees who are executive, administrative, professional and outside sales -- employees paid a salary of at leas $455 per week -- employees in certain computer-related jobs

Hostile Work Environment - Sexual Harassment * must be:

* Sexual in nature * Severe or pervasive * Unwelcome

Hostile Work Environment * Who does hostile work environment take place between - 2 scenarios

* Sexual or other Discriminatory conduct that does not result in a tangible employment action * Supervisor - Sexual harassment does NOT have to result in tangible employment action * Non-supervisor - Sexual harassment between co-workers, or between employee and non-employee

Substance Abuse Testing

* The use of illicit substances or misuse of controlled substances * Tests to determine substance abuse may include urinalysis, radio immunoassay of hair and fitness-for-duty tests. * Usually administered following an accident or other reasonable cause * Employers' concerns about substance abuse stem from the ways it alters work behaviors, causing increased tardiness and absenteeism, higher mistake rates and other issues. 3 Issues with drug testing 1) Safety vs. Impairment - were they impaired at work? 2) Intrusiveness - can be invasive 3) Accuracy - not 100%

Labor Management Reporting and Disclosure Act of 1959 (LMRDA) * AKA Landrum-Griffin Act

* Tightened loop-holes in the LMRA/Taft-Hartley Act to protect employees from union corruption. 1) Created a Bill of Rights for to protect Union members -- Freedom of speech of union members -- Member's right to sue their union -- No member can be fined or suspended without due process 2) Laid out rules regarding union internal affairs: -- regulated union election cycles - hold secret elections for union officials on a regular basis -- Created standards and regulated who can serve as a union officer -- expanded list of corrupt union and employer practices -- required unions to make financial reports to DOL to protect labor organization funds and assets * Exempt -- Unions composed solely of state and local government employees Memory Spark:

Title VII: Sexual Harassment * what are two ways to define sexual harassment

* Time limit to file a sexual harassment claim is 180 days * harassment on the basis of sex that: -- interferes with an employee's performance -- creates an intimidating or hostile work environment. * Orgs have a legal obligation to maintain a work environment free of harassment

Regents of the Univ. of CA v. Bakke (1978) * Affirmative Action

* USSC upheld Affirmative Action and decided race can be considered when selecting a diverse student body. * the use of quotas in AAP's is not permissible. * Bakke a white student sued b/c the University held 16 spots out of 100 for qualified minorities Memory Spark:

Civil Rights Act of 1991 * what is the law 1) what type of discrimination must take place for an individual to make a claim under this Act 2) what 2 things did this act allow employees to do 3) Under what 2 types law can someone make this claim 4) What is the maximum award for employers of 500+ 5) What type of case did it define

* Unlawful employment practice is established when race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice 1) In cases of Disparate Treatment (Intentional) 2) Section 102 allows employees to sue for compensatory and punitive damages 2) Allowed employees the right to a jury trial 3) Applies to claims made under Title VII or the ADA 4) $300,000 for combined compensatory and punitive damages 5) Codified the use of a mixed-motive case Memory Spark: Civil Rights = Race Related Memory Spark: Civil Rights Protests happen DownTown (DT = disparate treatment)

Bona Fide Occupational Qualification (BFOQ) 1) What protected groups does it apply to

* Used to justify an otherwise discriminatory employment practice under EEO law * Used in disparate treatment cases. Usually NOT involved in disparate impact cases 1) Age, religion, gender, national origin (does not apply to race or color). * Religious organizations can only claim BFOQ for religion, no other protected class

Albemarle Paper v. Moody (1975) * Selection Procedures case * Title VII

* Validity of tests is the big take away * USSC ruled that the validity of job tests must be documented, they must test for the jobs actual duties, and must be the least likely to create disparate impact. * Performance standards must be clear and unambiguous * If a test is used, job duties must be analyzed and documented * Case where Moody filed a lawsuit claiming Albemarle's selection procedures were discriminatory. *Albemarle presented evidence that their procedures were valid but due to poor technical quality they were unable to effectively argue that their methods were more valid than other options. Memory Spark: Tests are Paper Memory Spark: When I'm moody my feelings are still valid

Health Insurance Portability and Accounting Act of 1996 (HIPAA)

* Was enacted to make health insurance more "portable" from one employer to another * Ensures employee health information is not provided to parties, such as employers, without the employee's consent * Ensures for the privacy of all past, current, and future employee health-related info * Other provisions regarding restrictions on pre-existing conditions, special enrollment rights and privacy rights and protections.

Employee Health

* Workers covered by OSHA are entitled to working conditions that do not pose a risk of serious harm. * Employees have the right to ask OSHA to inspect their workplace, receive information and training about hazards, methods to prevent harm * Employees have the right to get copies of test results conducted to find hazards in the workplace and review records of work-related injuries and illnesses

Patient Protection and Affordable Care Act (PPACA) * aka Affordable Care Act (ACA)

* multiple provisions designed to: -- expand health care coverage -- encourage organizations to offer health insurance to employees -- provide government-funded subsidies for premiums for health insurance premiums for lower-income individuals and families

Liability

* the condition of being actually or potentially subject to a legal obligation

EEOC Claim Process Stats 1) how many days does the EEOC have to notify the employer that a claim has been made? 2) how many days does the EEOC have to investigate the claim? 3) If the EEOC does not move forward with a claim what happens? 4) If the EEOC moves forward with a claim, how many days does it have for conciliation? 5) What happens if a conciliation agreement is not met?

1) 10 days 2) 120 days 3) Issue the claimant a "notice of right to sue" letter. Claimant has 90 days to file suit on their own behalf 4) 30 days 5) EEOC may sue the employer in federal court or issue a "notice of right to sue" to the claimant

Title VII of the Civil Rights Act of 1964 1) Who does it cover 2) what entities does it apply to 3) what entities are exempt 4) what commission did it create

1) Covers color, national orgin, race, religion, and sex Does NOT protect against disability Memory Spark: CNRRS 2) Applies to: ---- all public & private employers with 15+ employees ---- public & private educational institutions ---- Federal, State and Local Governments ---- public & private employment agencies ---- labor unions with 15+ members ---- joint labor-management committees 3) EXEMPT -- Government owned corps. -- Indian Tribes -- Bona fide private membership clubs 4) Created the EEOC 5) Reverse Discrimination is illegal under Title VII, you can not hire people with lower skills just to fill a quota

Disparate Treatment 1) what is it 2) what law does this fall under 3) what are the 4 rules to determine if it is a D.T. case?

1) Intentional Discrimination * Requires a plaintiff to provide direct evidence of the intention to discriminate * Treating an individual differently because they are a member of a protected class (race, color, religion, sex and national origin) 2) Under Title VII law 3) 4 Rules for applying framework. If all 4 are true than it might be disparate treatment discrimination ---- Is the person part of a protected class? ---- Was the person qualified for the position? ---- Despite qualifications was the person rejected? ---- After rejection did the position remain open? * If the plaintiff can prove the 4 rules, the employer must show a legitimate lawful reason why the individual was not hired or fired.

Occupational Safety and Health Act of 1970 (OSH Act) 1) What does the Act do 2) Who does the act cover 3) What type of employer must maintain records 4) What dept does OSHA fall under 5) what are 4 major categories of OSHA Standards

1) Law is for safe and healthful working conditions to employees * Employers are responsible for complying with the "general duty" clause where each employer "shall furnish a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 2) Covers private sector employers and employees in all 50 states. Does not cover State and Local government employees 3) Employers with 11+ employees must maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. 4) OSHA is under the Dept. of Labor (DOL) * Created the Occupational Safety and Health Administration (OSHA)* OSHA can impose penalties ranging from $5,000 up to $70,000 for willful or repeated serious violations, although in practice the penalties can be far higher 5) 4 major categories ---- General industry standards ---- maritime standards ---- Construction standards ---- Agricultural standards

State & Local Laws 1) can they be less than federal laws? 2) when will the EEOC defer a case to state or local

1) No, but they can extend coverage to additional protected groups 2) EEOC is required under Title VII to defer to state or local agency if there is a local entity to enforce the law to avoid duplication of effort

Age Discrimination in Employment Act of 1967 (ADEA) 1) what age does it protect 2) what employers does it apply to 3) can employers ask about age

1) Prohibits discrimination against individuals (employees and applicants) based on their age (40 years of age or older) * Employers (with very few exceptions) can no longer force an employee to retire 2) Applies to most employers with 20 or more employees. 3) ADEA does not specifically prohibit an employer from asking about an applicants age or date of birth.

Family and Medical Leave Act of 1993 (FMLA) 1) What is the premise of FMLA 2) what size company does this apply to 3) How long must someone be employed 4) What are the 5 reasons to take 12 weeks of FMLA 5) what is the 1 reason to take 26 weeks of FMLA

1) The right to 12-26 weeks of unpaid, job protected leave with health benefits within a 12 month period 2) company with 50+ employees within a 75 mile radius 3) Eligible if worked for company for -- 12 months and for 1250 hours in that 12 months -- 12 months do not have be consecutive for eligibility; -- Employer decides whether 12 months is a calendar year or a "rolling year" -- Can be intermittent -- Husband and wife share that 12 weeks if both work for the same company 4) 12 weeks FMLA for: -- serious health condition of employee -- care for spouse, child or parent with a serious health condition -- birth of a child -- placement of a child for adoption or foster care -- qualifying exigency if spouse, child or parent is a covered military member on covered active duty 5) 26 weeks of FMLA for: -- An eligible employee who is a spouse, son, daughter, parent or next of kin of a current member of the armed forces, including National Guard or Reserves, with a serious injury or illness

Disparate Impact aka Adverse Impact 1) what is it 2) what law does this fall under 3) 2 approaches to determine if it is a D.I. case? 4) what are 2 employer defenses

1) Unintentional Discrimination * policies or procedures may seem neutral but result in a substantially different rate of selection in hiring, or other employment action that works the disadvantage of a protected class (race, color, religion, sex and national origin) * Burden of proof is on the employer to show that hiring standards are job related if they have an unequal impact on members of a protected class. Intent or lack thereof is irrelevant. 2) Under Title VII law 3) Use 4/5th rule 3) Use population comparisons (% of protected group versus majority in the company, % of both groups available in the labor market) 4) BFOQ and Business Necessity

EEOC Claim Process Steps * 7 Steps

1. File a claim * Employees may file a claim with the EEOC if they believe they have reasonable cause that a violation has taken place 2. Charge acceptance * EEOC will decide whether to accept the claim or refer it to another state or local agency 3. Inform the employer * After a claim has been filed, EEOC has 10 days to notify employer that a claim has been filed against them 4. Investigation * After the employer has been notified, the agency has 120 days to investigate the claim to determine whether there was reasonable cause *An informal fact-finding conference may be held early in the investigation to see if negotiation is possible *Emphasis is on settlement 5. Determination * After Investigation EEOC will make a determination of cause or no cause. * If claim is dismissed, EEOC will issue the claimant a "Notice of Right to Sue" letter * Individual has 90 days to file suit on his or her own behalf * If EEOC finds reasonable cause for the claim, conciliation begins 6. Conciliation * EEOC has 30 days to work out a conciliation agreement between the claimant and the organization * Conciliation agreement is signed by all parties and submitted for EEOC approval 7. Notice of right to sue * If a conciliation agreement is not reached, the EEOC may sue the employer in federal court or issue a "Notice of Right to Sue" letter to the person who filed the charge

ADA - Reasonable accommodation * name 3 ways employers can reasonably accommodate disabled individuals

1. Modifications to a job application process 2. Modifications to work environment that enable individual to perform the essential functions 3. Modifications that enable an employee to enjoy equal benefits and privileges

Risk Management - Creating an Initiative * 4 steps

1. Planning and design * Identify benefits: -- Gain approval from top management -- "what are the benefits?" "what do we hope to accomplish" * Plan initiative scope: -- asks "what is our definition of risk and other related terms?" * Establish strategy and framework: -- Define responsibilities of those involved 2. Implementation and bench-marking * Procedures and Classification: -- define classification system for assessing risk. -- What procedures will be followed. -- "How will risk be assessed?" * Create Benchmarks: -- Decide which benchmarks to assess severity of risk. -- Begin assessment * Determine Risk Tolerance and Controls -- what is company's desire for risk? -- how much risk is the company willing to take? 3. Measure and monitor * Cost Effectiveness and Improvements: -- Focus on cost-effectiveness and efficiency of control mechanisms -- Begins improvement process * Culture and Alignment -- Create a risk-aware culture -- Align risk management initiative with other management responsibilities -- Train employees to assess and monitor risk 4. Learn and report * Review Risk Indicators: -- Assess risk indicators to measure effectiveness of the initiative * Report Risk Performance: -- Continually monitor and make changes

Risk Management Process * 3 steps (with mini-steps in between)

1. Risk Assessment * Identify risks (risk analysis) -- Know critical factors for organizational success -- Know what aspects of the company add the most value. -- How much risk does an organization face. -- Assessors must have 1st hand knowledge of the organization * Evaluate risks -- prioritize and evaluate the risks -- Which business units are affected, what control mechanisms are in place and where these controls may be reduced, raised or appropriated differently. 2. Risk treatment -- choosing and implementing controls and measures to moderate the risk * Respond (tolerate, treat, transfer, terminate) -- Tolerate the risk as is -- treat the risk by attempting to reduce it -- transfer the risk to another area that is more suited to handle it -- or terminate the risk altogether * Resource controls -- Determine control mechanisms available and using them effectively to minimize or protect against risk * Reaction Planning -- Defining contingencies to minimize or deal with the risk if it gets our of control. -- Ex. if checkout registers at a grocery store go down, what can employees do to continue serving customers? 3. Feedback mechanisms * Report and monitor risks -- Creating systems so employees describe any issues and actions related to the risk to monitor its severity * Review and evaluate -- assessing the control mechanisms surrounding the risk -- evaluating success and learning from past experience. -- continuous improvement process to ensure risks are managed to the best of the organization's ability Memory Spark: Ass - Treat - Feed

Negligent Hiring

A claim against an employer who hires someone they knew, or should have known was unsuitable and likely to behave inappropriately toward other employees

Affirmative Action

Any program, policy or procedure that an employer implements to correct the present effects of past discrimination and ensure equal opportunity in the workplace * Affirmative action plans (AAPs) define an employer's standard for proactively recruiting, hiring and promoting women, minorities, disabled individuals and veterans. * OFCCP is charged with enforcing federal contractors AA mandates.

Violence at Work * List 7 ways to reduce violence at work

Any threat or act of physical violence or harassment * Negative impact of violence -- decreased morale, increased stress, decreased trust, lowered productivity, increased turnover and absenteeism 1. Heightened Security Measures - ex. improve external lighting, use drop safes, post signs 2. Improved Employee Screening 3. Workplace Violence Training 4. Organizational Justice - create workplace culture based on mutual respect, justice, civility 5. Enhanced attention to employee retention/dismissal 6. Dismissing violent employees - use caution. Have a security guard with you 7. dealing with angry employees

Retaliation

Concept of retaliation is reflected in the laws enforced by the EEOC that make it illegal to fire or harass employees because they filed a charge of discrimination against their employer

Validity

The degree to which the test or other employment practices are related to or predicts performance on the job. Validity can support a business necessity defense.

Job Stress * 3 steps to stress reduction

This part of employee health can range from: -- getting more sleep and eating better -- negotiating with your boss for realistic deadlines on important projects -- reducing the amount of trivia to which you give your attention. * The three-step stress reduction technique involves: -- developing awareness -- adjusting attitudes -- taking action.

Burnout

this part of employee heath is the total depletion of physical and mental resources caused by excessive striving to reach an unrealistic work-related goal. * Some suggestions for alleviating this include: -- breaking your patterns -- getting away from it all periodically -- reassessing your goals in terms of their intrinsic worth -- think about your work.