Employment Law

What are the 4 bias ranges?

"Bias" ranges from categorical (easy to prove, but rare) to stereotype or qualified bias (harder), to subconscious bias (very hard to prove).

How does an employer shift some of the costs of working to the employee?

"Deduction" visibly shifts cost to the employee; and employee sees this happen. Same for any mandatory separate repayment by an employee to the employer. But cost first incurred by employee and not reimbursed by employer is less visible. E.g., employer requires employee to obtain a uniform.

What is the Single Employer doctrine?

"Single employer" doctrine treats two "persons" as one. Resembles piercing corporate veil in general liability cases. But single employer rule is mainly for statutory coverage. E.g, combine counts of separate workforces or revenue for coverage. The employers are otherwise separate persons.

Ace Company was shut down on Tuesday because of Hurricane Ivan. It had no work for most of its employees, and remained closed for the rest of the week. Sally Reed is an "exempt" salaried worker earning $1,000 per week. She worked 7 hours Monday and left early in advance of the storm. What has Reed earned for the week?

$1,000. She was willing and able to work but the employer does not have work for her to do so she still gets the same amount.

Ace Company was shut down on Tuesday because of Hurricane Ivan. It had no work for most of its employees, and remained closed for the rest of the week. Wendall Wage is an hourly rated (non-exempt) employee earning $10 per hour, and Wage worked 8 hours on Monday. What has Wage earned for the week?

$80, that's all he gets and he's unemployed for the rest of the week.

What are the factors for the Disruption Test or Insubordination Test that limits the National Labor Relations Act Section 7 rights for social media - 3 ?

(1) Relation to a work issue? (2) Location (at worksite)? During work? (3) Actual disruption of work?

What are the factors for the Disparagement Test that limits the National Labor Relations Act Section 7 rights for social media - 4?

(1) Relation to work issue? (2) Labor dispute obvious to public? (3) Malice? (4) Actual Damage?

Executive signed a "golden parachute" agreement providing that Employer would pay him $2 million if employer was "acquired" by another company. Employer merged with another subsidiary of a Employer's parent corporation. Executive was now "redundant," and the newly formed corporation terminated his employment. The newly formed corporation, as Employer's successor, denied Executive's request for his "golden parachute." Executive sued. (a) What body of substantive law applies? (b) What is the correct standard of judicial review?

(a) Depends on whether it's a true ERISA plan or just a contract. Based on these facts, this does not look like an ERISA case because this is not under a plan. This agreement is only designed for him as an individual - this is just a contract. (b) It depends on whether this is considered a contract or actual plan and what the agreement/plan document says. If it's a contract then regular contract law applies. If it's an ERISA plan then de novo judicial review applies.

Assume Employer promised to not involuntarily discharge Employee without "just cause." (a) Supervisor believed Employee was slacking, but Supervisor was wrong, the assignments for Employee were simply much harder than the assignments others received. Supervisor's bad review of Employee resulted in a denial of any raise for that year. Did Employer breach its contract? (b) Employer's business has declined. Can it lay off Employee?

(a) If the employer truly believed the employee was slacking they may be justified. Some courts view "just cause" objectively but other courts view "just cause" subjectively. (b) Yes, this is a "just cause".

Employer decided to install cameras in all employee locker rooms. Employer did not review video recordings except to investigate allegations of theft. Employer did not notify employees about the cameras, and the placement of the cameras was inconspicuous. (a) What should Employer do (without changing any of the above facts) to assure the impossibility of any violation of the Electronic Communications Privacy Act (ECPA)? (b) On what other basis might employees challenge the lawfulness of Employer's action?

(a) The ECPA only protects communications and the video camera is not picking up sound so this is not protected by the ECPA. If you disable the audio function and only have purely visual recording then this is ok. (b) For private sector, there's always the possibility of tortious invasion of privacy. They would have to show that there was an expectation of privacy. It might be deemed highly offensive depending on what's actually observed. Under the public sector, they will have to sue under the 4th amendment.

Employer's facility presents a high exposure to airborne substances known to increase cancer rates, especially among those whose lungs have been weakened by other diseases or substances (such as cigarette smoke). Employer asks whether it can refuse to hire (a) smokers or persons living with smokers (b) persons whose parents experienced lung cancer.

(a) This is not illegal. Employment is at will and smokers is not a protected category UNLESS the state has a law that protects smokers - only North Carolina so far. (b) An employer can't ask this BEFORE hiring. Might be ok after the individual is hired BUT this is another way to get an employee's genetic information and this is illegal if you are asking to discriminate against the employee.

Linda Carson's elderly mother had the flu. Her mother was usually able to care for herself, but Linda worried her mother might be at special risk because of age. Linda decided to stay home with her mother for a day and took her mother to the doctor for an examination. The doctor prescribed medicine to relieve symptoms of flu and advised Linda to bring her mother back in a week if her mother was still sick. Linda returned to work the next day but took another half day off the next week to take her mother to the follow-up examination. (a) Did Linda's absences qualify for FMLA leave? (b) If Linda is a "salaried" worker, can Employer dock her pay for the half day absence? (c) What if it was Linda's adult daughter who was sick? (d) What if it was Linda's two year old daughter who was sick?

(a) Yes, Linda is allowed to take time off to take care of her parent. Her mom must have a serious illness: 1) inpatient hospital treatment or 2) continuous treatment with a doctor. Here, her mom went to see the doctor two times. The fact that her mom can take care of herself depends on what the doctor says. Employer has the right to demand documentation from a medical provider. There is no requirement for Linda to prove that her mother cannot take care of herself. In general, adult parents do not have to be disabled to qualify for FMLA. (b) Yes, the employer can dock her pay for a half day absence. The essence of a salary is that we get paid even if we're not working at a particular hour. An employer can take off a portion of your salary because you were not working. But if the absence is due to sickness/illness they cannot dock pay if it's your own sickness. If the employee is taking time off to care or someone else under the FMLA they can dock off time for half days and full days. (c) For an adult child they have to have some type of disability or the sickness is disabling to qualify. (d) For a 2 year old child, they have to have a serious illness.

Employer suspected that one of its employees might be guilty of stealing items from the company's supply room. It decided to interrogate all employees with access to the supply room, beginning with Shifty, whom employer liked the least and suspected the most. Shifty denied having stolen any items from the supply room. (a) If Shifty is "at will," can Employer lawfully discharge Shifty? (b) In response to Shifty's denial, Employer stated, "you could clear your name quickly if only we could conduct a polygraph exam." Shifty replied, "I don't trust lie detectors." Has Employer violated the EPPA? (c) Can Employer legally discharge Shifty after the discussion in (b)?

(a) Yes, employer can lawfully discharge Shifty provided that they did not target him simply because of race, national origin, religion or sex. (b) The employer could have only made this request if he had some type of grounds for asking for the request: access + reasonable grounds to suspect Shifty. (c) No, it is illegal to fire someone if they refuse to take the test. However, if Shifty had access and the employer had a reasonable ground to suspect him then the employer was allowed to ask him to conduct the test. Shift would have to prove that the employer did not have any specific reason to suspect him and he was targeted and they just wanted to get rid of him.

Bank discovered money was missing from its vault. Two employees, Klerk and Theafe, had access to the vault. Both denied stealing money, but Theafe looked particularly nervous. (a) May Bank ask Theafe to take a polygraph? (b) If Bank tests Theafe, must it also test Klerk? (c) If Theafe refuses to take the test, may Bank fire him? (d) If Theafe fails the test, may Bank fire him? (e) Bank delivered its "notice" just 24 hours before the test that Theafe failed. Can Bank fire Theafe? (f) Bank followed EPPA procedure and fired Theafe based on test results. Theafe's expert will persuasively testify that the examiner was completely wrong about Theafe. Does Theafe have a remedy?

(a) Yes, the DOL says one's nervous demeanor can be enough evidence to justify a polygraph. (b) No, the employer should show some objectivity because if you test everyone it doesn't look like you really have a basis but the distinction can't be discriminatory. (c) Yes, provided they would've fired him anyways based on the evidence they used to justify the request for examination. (d) Yes, same as above. (e) If the test result was a factor in the employer's decision the court might deem this as an unjust discharge. (f) No, except possibly a claim against the original examiner.

Why is enhanced observation more objectionable than natural observation?

1) "Control" questions enhance accuracy but increase intrusion, 2) Exposure to real or imagined revelation of secret thoughts and 3) Temptation for broader questioning.

What are the four categories for sexual harassment?

1) "Quid pro quo pursuit" of sexual gratification. 2) Pursuit of sexual gratification, without any quid pro quo. 3) Hostile atmosphere motivated by contempt for one gender. 4) Sexually vulgar atmosphere disproportionately offensive.

What are the 5 questions that EEOC uses to determine whether a test is a "medical exam"?

1) Administered and interpreted by a health professional?, 2) Designed to reveal mental and emotional health impairment or disorder v. "personality" trait?, 3) Measures performance of task, or physiological reaction to task?, 4) Frequently used in a medical setting with medical equipment? And 5) Actual invasiveness of a test?

Exceptions to the requirement for minimum wage and overtime - 3.

1) Advance loan against future wages (because you did receive the wage) 2) Some noncash benefits (e.g., lodging) are credits against MW if free to employee from employer 3) Deductions for things of value received by worker primarily for his benefit

What are the 6 pre-examination procedures requirements?

1) Advance notice (DOL: 48 hours). 2) Written statement of the incident, loss, and the grounds for suspicion. 3) Description of the nature of a test. 4) A list of the questions to be asked. 5) Notice of EPPA rights including job protection, counsel, recording. 6) Notice that test result may be evidence against examinee.

What are 2 basic elements of an ERISA plan?

1) Benefit has pension or welfare function. 2) Distributed according to a plan established by the employer.

What are the key features of the employment section of the act in Title VII?

1) Clear prohibition against private sector employment discrimination "because of an individual's race, color, religion, sex or national origin", 2) Enforcement power in the Department of Justice and later to the EEOC to bring lawsuits on behalf of the victims of discrimination, 3) Investigatory power for the EEOC to provide a preliminary determination of the merits of a complainant's belief that he was the victim of discrimination, so that the strength of the claim could be tested before the filing of a lawsuit, 4) Authorization for "equitable relief", including "equitable awards of back pay, which a court could grant without jury (because of claims for equitable relief are not subject to the Seventh Amendment right to trial by jury) and 5) Authorization for an award of attorneys' fees.

What are the three tools for analyzing worker status?

1) Common law control test: look at factors of control over work, 2) Economic realities: dependency unitary enterprise, a business, and 3) Statutory purpose: modern federal hybrid test combines all three tools.

What is the Single Employer Theory The Traditional Four-Factor Test

1) Common ownership - same owners, parent-subsidiary or subsidiary-subsidiary. 2) Interrelated operations, or firms in symbiotic relation. 3) Common management. And 4) Centralized control of labor relations by common managers or labor policy.

What are the 4 policy reasons for why negligence, standing alone, is not a breach of duty to the public?

1) Cost of an investigation. 2) Uncertainty as to depth of investigation required. 3) When would it be negligent to hire imperfect applicant? 4) Risk of making large class of workers "unemployable."

What are 4 factors of circumstantial evidence of an employer's discrimination?

1) Decision-maker's expressions of prejudice or his biased remarks. 2) Availability of class v. actual hiring. 3) Claimant's qualifications with those of successful applicant. 4) Employer history of discrimination. But how will applicant obtain any of the information for such proof?

Employer noted that its maintenance employees were all over 40 years old and some were suffering chronic health conditions - although ADA and HIPAA privacy rules prevented it from learning details. Employer decided to lay off all maintenance employees except the maintenance manager, and to "contract out" maintenance to Contractor. The retained maintenance manager served as "liaison" between Employer and Contractor. Janitor, 50 years old, asked you whether Employer violated his rights. What facts will you need to investigate?

1) Did Employer cease employing maintenance workers, or did it merely replace one group of employees for another? 2) I.e., was "contracting out" a sham transaction to deny benefits to a certain group (maintenance employees) without actually amending or terminating the plan? 3) Whether sham or legitimate, was the reorganization motivated by discriminatory intent to "interfere" with benefits or discriminate on the basis of age, disability or attainment of benefits?

You wrote to Employer about the termination of severance payments, and Employer agreed that its representative "misspoke" when he said Janitor's severance payments were terminated. However, it informed you that Janitor signed a very clear "Release of Claims" in return for Employer's promise of severance payments. In fact, the Release does waive any claims Janitor has against Employer. Is there anything more you need to investigate? P.S. We will mention the Older Workers' Benefit Protection Act at this point, but you do not need to know OWBPA for the exam in this class.

1) Did the release comply with multiple requirements of OWBPA? 2) If severance payment is according to a pre-existing plan or contract, did employer owe a "pre-existing duty" to make severance payments - so that the severance pay is "no consideration" for the release? 3) If pursuant to a plan, is a plan requirement a release in return for benefits breach of a fiduciary duty? 4) If pursuant to a plan, and the plan's terms do not require a release, is employer's demand for a release a breach of fiduciary duty?

What is the proximate cause test for determining whether an accident arose out of the employment?

1) Did work cause or contribute - did work increase this risk? 2) Which party best bears risk? In order for an injury to arise out of the employment, it must have had its origin in some risk connected with, or incidental to the employment, so that there is a causal connection between the employment and the injury.

What are the 6 factors for a "One Enterprise" or joint employer approach?

1) Do workers use the employer's facilities?, 2) May jobbers serve other clients and shift workers to serve others? Is it practical?, 3) Is the work integral/ordinary to the employer's business? (industry custom is relevant), 4) Is the employer able to shift work from jobber to another firm without material change?, 5) Did the employer actually supervise the work? And 6) Are Workers devoted mainly to the employer?

How do you determine if a non-reimbursement of cost incurred by employee is a violation "free and clear" rule? - 3 factors

1) Employee has exercised control over his funds, but only to get the job. 2) Employer had most control over amount of costs? 3) Employer had the actual benefit are these particular items.

What are 3 ways Texas disqualified employees from worker's compensation?

1) Employee was injured "while" intoxicated by drugs or alcohol. Must ask if there is a causal link between accident and intoxication irrelevant? No. 2) Injury "caused by" willful attempt to injure self or another. 3) No express disqualification for criminal act or willful negligence. But again, see work-relatedness.

Identify two ways an employee can engage in legally protected "self-help" with respect to imminent workplace dangers.

1) Employees can ask the DOL or sue them to get a TRO and 2) The employee can refuse to work and is protected under the Work Refusal Standard.

What are the 3 elements for the employer to be liable under respondeat superior?

1) Employer negligently supervised the employee (employer was aware and/or failed to take action). 2) Employer ratified the employee's torts. 3) Employee was an alter ego of the employer.

For a supervisor's offensive atmosphere, the employer's affirmative defense has to prove what (2)?

1) Employer sought to prevent and promptly remedy harassment and 2) and employee unreasonably failed to use internal grievance system.

What are the 4 white collar exemptions for Fair Labor Standards Act?

1) Executives: Manages a department or subdivision and supervises two or more employees. 2) Administrative staff: Office or non-manual work involving management policies or business operations; requiring discretion, judgment. 3) Professionals: Job requires "higher" learning or involves "creative" or "inventive" activity. 4) Highly Paid white collar employee earning at least $125,148/year qualifies with less scrutiny. Lawyers are not covered by the FLSA because they usually fall under professionals.

What are other factors of a real business?

1) Focus on worker's business leads to more new factors 2) Can worker delegate work to his own "employees?" 3) Can she serve other clients like an independent firm? 4) If the above are permitted, are the above also practical? and 5) Do assets require the worker's substantial management? 6) Relevant statutory purpose.

What are 5 ways an employee may be disqualified for worker's compensation because of their conduct?

1) If "caused" by the claimant's own intentional tortious act. 2) If claimant under influence of alcohol or illegal drugs. 3) If caused by claimant's willful breach of certain safety rules. 4) "Caused by" claimant's own criminal misconduct at work. 5) Occasional controversial catchall: "willful breach of duty."

What are the two elements of retaliation and examples in regards to benefits?

1) Illegal motive - Employee filed claim for benefit or appealed denial or exercised/enforced other ERISA plan rights --> sought information about the plan or benefits, reported a violation of ERISA or of plan's terms. 2) Adverse act - discharge or layoff, other disciplinary action --> transfer, non-promotion, assignment, denied raise. Other material adverse act. Non-employment action (e.g., bad job references).

What are the two elements of interference and examples in regards to benefits?

1) Illegal motive - to prevent beneficiary's knowledge of benefits, to discourage claims, to undermine or delay success in pursing benefit, to prevent vesting or disqualify from benefit, without amending plan. 2) Adverse act - impeding access to information about plan, impeding filing of claim, discharging or changing employment status, preventing a change in employment status.

What are 5 factors that demand an explanation for possible discrimination?

1) Individual is of a protected "trait", 2) There's an alleged type of adverse action (not hired; discharged, etc), 3) The individual had obvious or posted qualifications for the job, 4) Employer failed to hire them and 5) Employer either continued to seek applicants OR hired a person who is not [a member of a protected class]

What are the elements for intentional or negligent infliction of emotional distress, AKA "outrage"?

1) Intent, proof of the actor's willfulness may suffice. Restatement: negligence suffices if defendant created fear of physical harm or parties had special relation. 2) Outrageous action and 3) Caused sever emotional distress.

What are the 3 theories of discrimination?

1) Intentional discrimination (disparate treatment), 2) Unintentional discrimination (disparate impact) and 3) Reasonable accommodation

You asked Janitor whether he had signed anything for the Employer before he left. Janitor remembered that Employer required him to sign something in return for a series of "severance" payments over the next six months. Janitor does not remember if he kept or simply misplaced his copy, or if he even received a copy. He no longer has access to an Employee Handbook. You asked Janitor to call Employer to ask for a copy of the signed paper, and for any "SPD" of any "employee benefits plan. Janitor did call, but when Employer learned Janitor was consulting with an attorney, it replied, "You violated our agreement! We are terminating our severance payments to you!" Did Employer violate the law?

1) Is the payment of severance pay by contract? Or by a plan? If by plan, remember ERISA will apply. 2) Separated employee still has ERISA right of access to "plan" documents, to request benefits, and to file internal appeal. See Firestone. 3) Arbitration clause? 4) Has employer illegally interfered with ERISA right of access? Is consulting with an attorney ERISA-protected conduct? 5) Did threat to suspend payments violate plan (or contract) or constitute illegal retaliation for exercising ERISA rights? 6) Would actual suspension violate a fiduciary duty?

What are 4 types of affirmative action plans?

1) Judicial remedy: Quota is an appropriate remedy against willful discrimination. 2) Government contractor Affirmative Action Plan: a required "plan" with goals to correct "underutilization." 3) Voluntary Affirmative Action Plan: adopted with real justification, based on real plan. 4) Ad hoc reverse discrimination without official plan - this is illegal.

Employer goals and interests

1) Keep the cost of labor low, 2) Prevent unilateral resignation esp. to work for a competitor, 3) Preserve unilateral right to discharge unneeded workers, 4) Maximize managerial control (disciplinary discharge), and 5) Prevent trade spillover loss of investment in training.

If you are conducting an "audit" of an employer's workplace, you will want to be sure to check the client's compliance with the Fair Labor Standards Act. List at least three issues or areas for inquiry you will want to investigate.

1) Make sure there are no policies that prohibits employees from discussing wage range. 2) Make sure the employer is paying the minimum hourly rate. 3) Make sure the employer is keeping track of the amount of hours employees work and any overtime to make sure they are properly paying employees for overtime. 4) Policy should also cover the occasions when a salary may be docked for absence, and it should prohibit "fines" except for major safety violations.

Employee goals and interests

1) Maximize wages and benefits, 2) Preserve unilateral right to resign and to seek other work, 3) Prevent unilateral discharge or ameliorate consequences, 4) Retain autonomy, especially by limiting disciplinary discharge, 5) Preserve right to use knowledge, skills, relationships in other jobs.

What are the two main employer duties under ERISA §510?

1) No Retaliation: Do not discriminate because of an exercise of or action to enforce ERISA or plan right. 2) No Interference: Do not interfere with employee's attainment of benefit right (e.g., vesting of rights).

Julie Lombard is a waitress for Steakhouse, a nationwide chain of restaurants employing hundreds of employees and offering up to seven days of paid sick leave per year. One Monday morning, Lombard awoke with severe back pain. Barely able to rise from her bed, she called her supervisor to say she was in too much pain to work that day. Thinking the pain would simply go away, Lombard did not see a doctor immediately. Instead, she took aspirin and rested at home. Nevertheless, her back was no better the next day and it was only slightly better the day after that. By the time the weekend had arrived, Lombard missed five days of work. Lombard felt better the next Monday and reported to work. (1) Is her leave from work FMLA-protected? (2) If she exceeds her FMLA leave, is she entitled to reinstatement under workers' compensation law? (3) If she is only partially recovered and cannot work as a waitress, does she have any rights to reinstatement in a different job?

1) No, she didn't see a doctor so she will have a hard time to show that she had a serious illness. 2) No, employer does not have to employ people who can't work. If Julie files a claim and they refused to continue her work in retaliation than that violates the law. 3) Yes, the ADA MIGHT help if she's disabled. It depends on if her condition is on-going or possibly permanent. This also depends on whether this constitutes a hardship for the employer or undue burden on the other employees - if so, they do not have to accommodate.

What are 5 ways to contract out functions of an employer?

1) Payroll service calculates pay, withholds taxes, issues pay. 2) Personnel agency solicits and investigates applicants, and proposes employees. 3) Temp employment agency. 4) Association establishes and administers benefit plans. 5) Employee "leasing" or "professional" employer agency.

What are the three requirements for the general duty clause regarding hazards?

1) Recognition - Requirement of recognition is one assurance of some notice otherwise lacking in "general duty" prosecution. Recognition is by employer, industry or safety experts. Requires recognition of risk and means to avoid. 2) Hazard must be preventable in a feasible way. 3) Hazard must be significant and the likelihood high.

What are 5 employer functions?

1) Soliciting, investigating and selecting applicants. 2) Supervision of work. 3) Labor law compliance. 4) Provision or management of employee welfare plans. And 5) Payroll (calculating pay, w/holding taxes and benefits). Any of these functions can be contracted out.

What are the six factors to determine whether an intern is NOT an employee?

1) The experience is similar to the training provided in an educational environment, 2) The experience is primarily for the intern's benefit, 3) The intern is not a substitute for regular employees, 4) The employer drives no immediate advantage and "on occasion its operations may actually be impeded", 5) The intern is not guaranteed a job at the end of the internship, and 6) The intern and employer understand the intern is not entitled to wages.

What are the 4 requirements for coverage under the Work Refusal Standard?

1) The worker reasonably believed condition posed risk of serious injury or death. 2) The worker sought corrective employer action, if possible. 3) There was no time to seek the usual OSHA remedy, and 4) The refusal to work or obey order was in good faith.

What are the 4 elements for violating an Electronic Communications Privacy Act?

1) There was a wire, electronic or oral communication, 2) a non-party intercepted the communication by, 3) "aural or other acquisition" and 4) using "electronic, mechanical or other device."

What are the three possible durations of employment? What type is presumed if there's no express agreement?

1) To continue indefinitely, terminable at will of either party, 2) To continue for definite term, renewed on mutual will, and 3) To continue indefinitely, but one party can terminate only for cause while other can terminate at will. At will employment is presumed unless there's an express agreement to the contrary.

What are 5 factors for the control analysis?

1) What is there to manage or supervise? Who manages or supervises those matters? 2) A designated supervisor? 3) How are contract terms negotiated or dictated? 4) What assets are needed? Who controls the assets? 5) Is pay equivalent to wages (steadier, low risk, less affected by cost management) v. Entrepreneur's profit?

Three factors to identify statutory purpose.

1) What problem is Congress seeking to solve with a law? 2) What kinds of labor most likely need this protection? 3) Is the legislative solution suitable for such parties? WAGNER Act.

Provide two examples of important employer actions affecting rights of the beneficiaries of an ERISA plan but not subject to a fiduciary duty.

1) When an employer creates, modifies its benefit plan and 2) When an employer terminates its benefit plan. In these situations the employer is not acting an as administrator of the plan but instead acting as settlor and on behalf of the company.

What are two limitations of the doctrine respondeat superior that might lead a plaintiff's lawyer in a personal injury case to explore an alternative basis for establishing the liability of the tortfeasor's employer?

1) When the employee's action is within the scope of employment but typically intentional torts are outside the scope of employment and the employer will not be held liable. 2) Duty of care for hiring or negligent hiring can make the employer liable for intentional torts but plaintiff must prove causation.

Under Texas law, for what two types of employment does an employer owe the public a duty of care in hiring?

1) Where the work in nature requires competence and will present a special hazard to the public. 2) When hiring people who are placed in positions where they will have a unique ability to abuse vulnerable people (nurses, childcare etc.).

What are six factors that the EEOC looks at to determine whether the corporation has enough employees to be a covered employer under the Age Discrimination in Employment Act?

1) Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work, 2) Whether and, if so, to what extent the organization supervises the individual's work, 3) Whether the individual reports to someone higher in the organization, 4) Whether and, if so, to what extent the individual is able to influence the organization, 5) Whether the parties intended that the individual be an employee, as expressed in written agreements or contract, and 6) Whether the individual shares in the profits, losses, and liabilities of the organization.

Factors to determine whether trainees are employees.

1) Who derived primary benefit from the internship? 2) What was the agreement - was some compensation expected? 3) Did training resemble school? 4) Was it integrated with school? And did it displace v. complement the work of regular employees?

List at least six factors relevant to whether a worker is an "employee" or an independent contractor.

1) the scope and duration of the employment, 2) supervisory control of the details of the work, 3) parties' comparative investment in tools and equipment, 4) the worker's opportunity for profit or loss, 5) source of instrumentalities and tools, 6) location of work, 7) whether work is part of the regular business, 8) is the work an ordinary and integrated part of "unitary enterprise" that the putative employer dominates? and 9) do workers have a business able to exist apart from serving principal?

List at least two different sources or authorities for a checklist you would find helpful in analyzing an issue of employee status.

1) §220 of the Restatement (Second) of Agency and 2) IRS 20-point checklist

Statute of limitations for FLSA enforcement by the DOL is ___ or ____ years depending on level of employer culpability.

2 or 3

Supervisor believed Worker might be responsible for aiding a major shoplifting ring. As part of his investigation, Supervisor asked Worker to "clock out" and go to Supervisor's office for questioning. After Supervisor and other officials questioned Worker for about an hour, Supervisor asked Worker to wait in the office for further instructions, and Supervisor departed the office. Thirty minutes later, Supervisor returned and informed Worker that she was discharged. Supervisor and Worker spent twenty minutes going over "termination" paperwork. (a) What part of this time is compensable under the FLSA? (b) How does this affect Employer's wage obligation to Worker if Worker is nonexempt? (c) What if Worker is a white collar exempt employee?

A - All of this time is compensable under the FLSA because all of this is activity under the direction of the employer. B - it depends on whether the employee's final earnings would be less than minimum wage or require the employer to pay over time. C - If he's a white collar exempt employee than they are a salaried employee and the total number of hours worked does not matter.

Employer hired A and B after telling each of them, "After six moths training you can be the store manager." After six moths, A was disappointed to learn that B was going to be the sole manager.

A may be able to prove intent for a promissory estoppel/detrimental reliance claim because the employer said the same thing to two people even though only one could be a manager.

Define employer.

A person who has fifteen or more employees in each working day in each of twenty of more calendar weeks in the current or preceding calendar year.

What is a unilateral promise?

A promise for something other than a promise. Employer promises to pay rate of pay in return for employee's work. Pay is promised because payment must be deferred until after work but employee promises nothing (can be used but may be fired for displeasing employer).

Is an Affirmative Action Plan a Legitimate Non-Discriminatory Reason? OR affirmative defense?

A qualified Affirmative Action Plan is treated like an Legitimate Non-Discriminatory Reason - the employer did not discriminate. The court treats an Affirmative Action Plan as a legitimate non-discriminatory reason so the plaintiff bears the burden of proof on lawfulness of an Affirmative Action Plan that includes sex/race/age conscious selection as a practice.

What is the public's right/duty for employee selection?

A right to be free from injury caused by any negligence by employer or its "employees" -- respondeat superior.

What is an employer's right/duty for employee selection?

A right to choose "at will," but competition and respondeat superior encourage hiring the competent.

What is a jobber?

A wholesale merchant who deals in special, odd, or job lots.

If Employer's promise was in an unsigned "contract" attached to an email to Employee, does the promise satisfy the statute of frauds?

A writing can be electronic. Sending an email from an account satisfies a signature so this is enough to satisfy the Statute of Frauds.

What happens if there's permissible inference of illegal discrimination?

Absent explanation, facts permit inference: Bias caused rejection. To rebut inference, an employer explains (articulates) a legitimate non-discriminatory reason (LNR). "Legitimate" means real or honest, not necessarily fair. Might even be illegal under some other law. Legitimate non-discriminatory reason is by admissible evidence, risking inspection.

An "associate" lawyer was present when a disgruntled client shot and killed another lawyer at his firm. Two years later, he was diagnosed with PTSD. Accident? Or progressive trauma? Why might the question be important?

Accident - the violent act caused the PTSD. He is not in a position where he routinely exposed to this type of violence. Its matter depending on the rule drafted for that state. If it was an accident than he has a specific time to file his case.

What is the going and coming rule?

Accident in routine commuting is noncompensable. Special missions, travel between work-sites, and "homework" are exceptions.

What is the Genetic Information Nondiscrimination Act (GINA)?

Act that prohibits an employer from discriminating against an employee because of genetic information with respect to the employee. The Genetic Information Nondiscrimination Act also makes it unlawful for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except in limited circumstances. Exceptions: 1) Employer may collect genetic information voluntarily provided by the employee, as part of a program required by law to monitor the effects of toxic substances in the workplace and 2) Voluntary submissions for a wellness program.

When can an employer ask whether an employee/applicant has a record of lung disease, or test that person for lung disease?

After hiring - in a "post offer" interview. The employer can NOT ask questions regarding the employee's health and disability before offering employment. However, some jobs can be dangerous with certain health issues/disabilities so the ER is allowed to asked after offering employment.

When is the Period of Postliminary Activity?

After last principal activity has ended for day. Related activity is presumed not to be compensable.

How to determine if a plan is justified by a significant disparity?

An employer does not need to admit past discrimination. Standard: A manifest imbalance in job subject to traditional segregation. Court's scrutiny moderated by plan's use of a loose hiring goal, not quota. Focus on (1) actual labor market; (2) recent hires. Note: lesser disparity might justify other forms of affirmative action.

What is disparate impact?

An employer's policy has an effect of discrimination, regardless of its intent, purpose or motivation. Not all adverse impact is illegal.

What is a "salt"?

An individual that is employed and compensated by the union to accept work with a non-union employer in order to organize the employer's workface from the inside. Can still be considered an employee.

What is a "tester"?

An individual who seeks or accepts employment with an ulterior motive to serve some party or purpose other than the employer.

When is the Period of Preliminary Activity?

Before the period of principal activity begins. Presume related activity in this period is not compensable.

When is the Period of Principal Activity?

Begins with first activity that is the purpose of employment OR indispensable and integral to achieve purpose. Even related activity is presumed compensable.

In a simple, individual employment discrimination claim, who bears the burden of proof on the issue of cause (proven bias caused the adverse action) if the plaintiff presents the case under the "pretext" model of discrimination?

Burden of proof is on the plaintiff.

In what situations might you still find commercial activity involving the employment of children younger than fourteen, in the United States?

Can be lawful after 14 within limits of time, nature of work. Exemptions for even younger workers in agriculture or by the parents' own business.

Suzie Tips was waitress at Hoover's. She wore a required uniform designed to appeal to male customers. Tips was the regular object of compliments (sometimes crude), requests for dates, sexual innuendo, and inappropriate touching. Tips always handled such matters with aplomb and resisted eager customers without offense. But one day after closing, manager/bartender Ted Swizler grabbed Tips from behind and attempted to kiss her. Tips pushed Swizler away and immediately left. The next day, Tips called Swizler to say she was frightened by what happened and was resigning. Is Hoover's liable to Tips for sexual harassment under Title VII? If so, what remedies are available to Tips? Could Tips also have a tort claim?

Check for "employer" coverage (is Hoover's a small firm?) Was Swizler Suzie's "supervisor"? Did he take a tangible job action against her? If not, did he create a offensive or hostile atmosphere? (a) was his conduct unwelcome? (b) severe or pervasive? If he created hostile atmosphere, can Hoover prove it acted reasonably to prevent and remedy harassment? And that she acted unreasonably? What about a tort action against Swizler or Hoover's?

How does an employer create an Affirmative Action Plan?

Compare one's own workforce with the external labor market to look for possible underutilization of minorities. Investigate managerial bias or practices that may cause disparate impact for a class. Adopt measures to combat bias, and promote diversity. Adopt goals but not quotas. Quotas are illegal.

Time pays Cash $400/week. A written contract says his salary is for a variable workweek (it is a true salary), and he is not required to keep track of time (but he does anyway!). For each situation, what do the contract and FLSA require? Week #1: Cash missed two hours to go to a parent-teacher's conference for his son. He worked 38 hours. What must Time pay?

Contract Rights: If it's a true salary, its $400 regardless of hours. No minimum wage problem: Converting his pay to hourly rate yields $10.53 per hour and clearly more than the $7.25 MW. No overtime problem: He worked fewer than 40 hours.

Time pays Reed a "salary" of $400/week, with the understanding that she is to work 40 hours/week. If she misses time, she is required to make up the time or forfeit pay for the hours she missed. Week #1: Reed missed time due to illness, and worked just 30 hours. She did not make up the missed time - what does the contract require, and what does the FLSA require? What must Time pay?

Contract rights: If she must make up or forfeit pay for lost hours, it's an hourly rate $10—not a true salary. She gets $300. No minimum wage problem: She'll earn more than MW per hour even if employer docks her pay at an "hourly rate" of $10/hour. No overtime problem: Fewer than 40 hours.

Time pays Reed a "salary" of $400/week, with the understanding that she is to work 40 hours/week. If she misses time, she is required to make up the time or forfeit pay for the hours she missed. Week #2: She worked 50 hrs. What must Time pay? - what does the contract require, and what does the FLSA require? What must Time pay?

Contract rights: Was there an agreement or understanding regarding overtime? If not a true salary, implication is $10 per every hour. No minimum wage problem: Whether employer pays salary or hourly rate; she gets at least $400 ÷ 50 hrs. = $8/hour. Overtime: If she actually earns a "regular" hourly rate of $10, she earns that rate for the first 40 hours ($400) plus 1½ that rate for the next 10 hrs. (10 x $15 = $150). Total pay = $550.

Time pays Hand a "piece rate" of $1.00 per timepiece he inspects as a quality assurance worker. For each situation, what do the contract and FLSA require? Week #2, Hand worked for 50 hours and inspected 1000 timepieces. What must Time pay?

Contract: His piece rate yields 1,000 x $1 = $1,000. No minimum wage problem ($1000 ÷ 50 hrs. = $20/hour). Overtime problem: Piece rate earnings converted to hourly rate is $20 per hour. This is his "regular rate" for that week. For each of 10 overtime hours, he is entitled to an extra half the "regular" rate. Total pay is $1,000 + (10 hrs. x $10) = $1,100. Alternative: Increase piece rate by ½ after 40 hours, if fair.

Time pays Hand a "piece rate" of $1.00 per timepiece he inspects as a quality assurance worker. For each situation, what do the contract and FLSA require? Week #1, Hand spent 30 hours in orientation and training and only 10 hours "working" productively. He inspected 200 timepieces. What must Time pay?

Contract: His piece rate yields 200 x $1 = $200. Hours irrelevant. Minimum wage problem: Divide total piece rate pay by hours worked. If training time "counts" as time worked, he earned only $5.00 per hour, less than MW. No overtime problem (he worked only 40 hours under either view).

Time pays Cash $400/week. A written contract says his salary is for a variable workweek (it is a true salary), and he is not required to keep track of time (but he does anyway!). For each situation, what do the contract and FLSA require? Week #2: He worked 50 hrs. What must Time pay?

Contract: True salary means same pay ($400) regardless of hours. No minimum wage problem: Even in a 50 hour week, his salary converts to $8 per hour. Overtime: Convert true salary to hourly rate for that week: $400/50 = $8/hour. This is his "regular [hourly] rate" for all 50 hours. FLSA requires this "regular rate" plus half that rate for each of the 10 overtime hours: ($8 x 50 hrs.) + ($4 x 10 hrs.) = $440.

What are the 3 general privacy principles?

Could he reasonably expect privacy? Was there a reasonable inception (real fear of breach)? Was there a reasonable scope in relation to that purpose?

Federal Contractor requires employees to buy a uniform for $100 before beginning work. It prohibits wearing the uniform away from work, but does not reimburse the cost. Worker paid for a uniform, and then earned $500 for 40 hours in Week One. The minimum wage by executive order for federal contractors is $10.10. Did Contractor violate its government contract? a. Yes, in Week One, unless Contractor reimburses Worker $100 for the cost of the uniform. b. Yes, in Week One, unless Contractor pays Worker an extra $4 for that week. c. No, the President lacks authority to adopt a minimum wage different from the FLSA, and Worker earned well over $7.25/hr. d. No. The cost of clothes doesn't count against the minimum wage.

D is incorrect because the cost of clothes can count against the minimum wage if it's primarily for the benefit of the employer. C is incorrect because the President can change certain types of minimum wage, i.e., the minimum wage for government contracts. A is incorrect because the FLSA does not require for the employer to bear their own costs. They are allowed to shift costs to the employees as long as they still comply with statutory minimum wages and overtime pay. $100 is more than it has to be reimbursed. B is the correct answer - in week one the employee did not earn the minimum wage because of the $100 expense for the uniform. The employer only needs to pay the employee $404 total for the week for them to earn minimum wage. Thus $10.10/hour x 40 hours = $404; his actual earnings is $500 - $100 for uniform.

Wendy Weak felt ill with the flu. She left work early on Monday and did not go to work at all on Tuesday and Wednesday. She returned to work on Thursday. If Employer treats Wendy as an exempt salaried worker, can it reduce her pay for her three missed days, if Wendy has not yet qualified for "sick pay" or has exhausted her allowance?

DOL: Employer cannot deduct for these absences (whether part or full day) unless it is already paying her "sick pay" for this time as part of a "bona fide sick leave plan." In other words, the employer must pay her for all of this time one way or another.

Insurer is administrator of Employer's plan. Worker believes Insurer erred in rejecting her claim for an additional day in the hospital. If the employee sues - what is the judicial standard of review for Insurer's decision?

De novo (complete) judicial review unless settlor granted discretion to trustee/administrator, limiting judicial review.

Which type of ERISA plan requires insurance from the PBGC?

Defined benefit

What does the DOL, Wage and Hour division, do?

Department of Labor Wage and Hour Division interprets the FLSA, investigates claims and sometimes sues to enforce.

Employer orally promised a job until "retirement." Is the promise subject to the statute of frauds? What if the it was "until resignation"?

Depends if it was a promise that required performance for over a year - not sure because maybe the employee is only 6 months from retirement. Looking at the extrinsic facts theory we can ask how old the employee was, how far was retirement -- maybe it would be impossible to perform the contract. If it was until resignation, it's different because they can resign tomorrow.

If an client employer asks you whether it can or should terminate an employee as to whom it has received a "no match" notice, state briefly but clearly what your advice would be.

Depends on the circumstances. A "no match" letter does not necessarily mean that the worker is unauthorized or an alien. They may have failed to report a name change, or a typographical error may have occurred. I would advise the employer to check its own records for errors and to grant the worker up to 90 days to resolve the discrepancy with the SSA. DOL has instructed that employers should not fire someone just because of a "no match" letter.

How can an employer prove their policy has a "business necessity"?

Disparate impact is not per se illegal. Is policy arbitrary, or is there a "business necessity." Business necessity for a job qualification is proven by a correlation with job success. Content validation: Compare content of test with actual job. Criterion validation: A statistical correlation with success.

How to determine if the plan's effect on non-minorities limited?

Does plan unnecessarily "trammel" job prospects for non-minorities? Only goals, no quotas or set asides. Non-selection less severe than layoff. Did rejected non-minority have firmly rooted expectation (as in the case of contractual seniority under a CBA)?

What independent agency investigates whether there is "cause" to believe the employer may have discriminated against claimant?

EEOC "mediates" the charge. Employee can file suit when EEOC completes its process (and if it chooses not to sue). Federal court has jurisdiction for the subsequent lawsuit. But the EEOC rarely files lawsuits on individual's behalf because there are too many charges and their enforcement personnel is so limited so they are looking for a big charge/case. What is big now is discrimination against sexual discrimination.

What type of plans does ERISA apply to?

ERISA applies only to provisions of welfare OR pension benefits paid to employees by a "plan."

What are 5 implications of a benefit plan if it's governed by ERISA?

ERISA substitutes for the common law of contracts. Federal court jurisdiction based on federal question. A minimum schedule for pension accrual and vesting. Vesting and no forfeiture rule bars most conditions. Formal, administrative and record-keeping regulations.

What are some suspect job criterias?

Educational criteria; but successful challenges after are now very rare. Paper and pencil tests purporting to measure pure intelligence or "IQ." Height, weight, strength, agility. Criminal arrest / conviction record. Credit scores, debt or bankruptcy. Subjective evaluation (interviews)? Current lack of employment.

What must OSHA show a magistrate or judge to obtain a warrant to inspect the workplace of an employer who has refused to consent to an inspection?

Either a rational administrative plan or reasonable cause to inspect.

Public agency overheard Employee blurt, "Senator Snort is a fascist pig!" Some other employees were annoyed. An argument ensued but quickly ended when Supervisor intervened. Employer worries Senator Snort will use this incident against it in future budget matters. Can Employer discipline Employee?

Employee is entitled to first amendment protection even at work although it's offensive unless the employer can prove that this statement disrupted the workplace and caused issues. Considered on a case-by-case basis. It'll help if the employer has a policy in place to reference when firing an employee.

In determining whether an employer is "discriminating" in the provision of benefits, one must compare two groups the employer is treating differently - one more favorably or generously than the other. With whom are "pregnant" employees to be compared, for purposes of determining whether an employer discriminates unlawfully with respect to pregnancy?

Employees with the same similarly disabling condition under the Pregnancy Discrimination Act.

Accounting Firm employed Associate and assigned her to work on a matter for Client, requiring Associate to spend a week at Client's office. Associate performed tasks that were useful and beneficial to Client. Then one day Client's CEO treated Associate in a way that would constitute "sexual harassment" if by an "employer" under Title VII. Can Associate sue Client as an "employer" under Title VII?

Employer and employee relationships looks at whether the employer is receiving the benefit of the work as one of the factors. Here, although the Client is receiving the benefit of the work they are not considered an employer under these facts.

How can employer shift costs to the employee that receives minimum wage and overtime?

Employer can shift costs by small deductions that always leave employee at least at minimum wage. If employer must reimburse worker's initial cost, it can charge back to worker over time.

What is an "economic reality"?

Employer control by economic power apart from contract matters.

What are the 5 basic provisions for fairness and accountability for ERISA?

Employer has duty to put a plan and all the plan's contingencies in writing. The "administrator" is a fiduciary who must act for sole benefit of beneficiaries. Plan must provide written explanation of any denial of a request for benefits. The plan must have an internal appeal. Judicial review of denial of benefit.

Why must an employer want to recruit someone that is not authorized to work?

Employer has more bargaining power and less likelihood of getting sued for issues like sexual harassment, worker's compensation etc. But an employer's hiring of unauthorized worker is also illegal.

For personal reasons other than sickness or disability, what can the employer deduct for - hourly employees?

Employer may deduct for a full day absence but not for a part-day absence. Thus, if employee is absent for 1½ days because of personal reasons, the employer can deduct only for one full-day.

For sickness or disability, what can the employer deduct for - hourly employees?

Employer may not deduct at all for such absence unless such absence is already compensated by sick/disability pay plan (no right to "double compensation"). But employer may take hourly deductions for qualified Family Medical Leave Act leave (see Chapter 7).

What must an employer be able to say and prove about its decision to propose that an employee take a polygraph test, in order to comply with the Employee Polygraph Protection Act?

Employer must be able to say/prove that the test was only used for investigatory purposes for employee's wrongdoing. The investigate must relate to economic loss such as theft, property damage, sabotage, espionage/trade secrets etc. Additionally, the employer must show that the examinee had access to the thing at stake, plus other reasonable ground to suspect the examinee. The employer must also follow strict rules for administering the test.

What is the "No-Match Letter" process?

Employer pays IRS/ SSA, sends SSNs. If SSN does not match the employee, SSA sends employer a no-match letter. No-match implies no authorization. This is an example of constructive notice. Problem: Risk of error by employee, employer or agency in recording data. DOJ advice: continue employment (do not fire) while worker seeks to "fix." Normal process is to go to the employee and tell them there was a no match and give them 60 days to fix the issue.

What conflicting goals cause employers to design work so that workers end up in gray area?

Employer wants to offer competitive benefits to employees but it's costly. Self employment tax is 15%. If employer hires someone as an independent contractor they are not responsible for those taxes. Employer wants to avoid the costs of being an employer but employers like to keep their employees and control them.

Waitress experienced rude comments about her body, actual and attempted touching and other offensive behavior from a group of men she was serving at Restaurant. When she complained to Manager, Manager responded, "Get over it. They're here to have fun. Maybe they'll give you a good tip." When Waitress protested she did not want to serve that group anymore, Manager ordered her to serve the group or quit. Waitress quit. Then she came to your office to inquire about a lawsuit. Discuss the merits and strength of her claim against Restaurant.

Employers are not strictly liable for non-supervisors however, the employer can be liable if they were negligent → they knew about the conduct and did nothing. This also applies to the actions of customers. The employer can be negligent in failing to protect their employees from sexual harassment by customers. Have to ask: 1) was the attention or touching unwelcomed? Yes. 2) If unwelcome, was it a severe or pervasive? Forcing the waitress to serve them can be sever or pervasive.

Are there any reasons for permitting, encouraging or requiring employer's to gather information about medical conditions experienced by Applicant's other family members under any circumstances?

Employers may be to gather more information about an employee if it relates to the safety of the job.

If the plaintiff employee sued the employer in tort for the supervisor's conduct, what major legal doctrine would the plaintiff need to overcome? How might he or she overcome that doctrine?

Exclusive remedy defense; the employee might overcome that doctrine by proving the supervisor committed an intentional tort but this may put the employer beyond tort liability. However, the remedy does not cover non-compensable (physic) injuries. Additionally, the employer could still be liable if there was 1) Negligent supervision - know what the supervisor is doing but did nothing to stop him, 2) ratifying of the supervisor's behavior, 3) if the supervisor is not just an "employee" but in fact the employer (alter ego).

What is the effect of improperly deduction an employee's salary?

Exemption lost for employee if facts show employer did not intend to pay "salary" (retroactively nonexempt!). Employer's actual knowledge of the deductions invalidates exemption for all employees subject to the practice. Isolated or inadvertent deduction will not result in a loss of exemption if employer reimburses deductions. Safe Harbor: Clear policy against such deductions and a process for complaints avoids loss of exemption for other willful violations.

DOL is bound by employee-employer settlement.

False

T/F: A "paper and pencil" personality test is a "device" subject to the Employee Polygraph Protection Act (The EPPA).

False

T/F: A work stoppage due to an abnormally dangerous condition does violate contract.

False

T/F: At will doctrine only applies to firing and not hiring.

False

T/F: Employee is not liable in tort for losses he negligently/intentionally caused.

False

T/F: In Texas, there is no express coverage of a heart attack caused by an event/accident in course of employment.

False

T/F: Promise of severance is illusory because the condition is termination, not continued work.

False

T/F: Under Title VII, employer is not liable for discrimination by an agent.

False

T/F: Uniformed Services Employment and Reemployment Rights Act leave is counted as "attendance" for purpose of certain attendance rewards.

False

T/F: You can insure for own intentional tort.

False

T/F: The Employee Polygraph Protection Act (The EPPA) applies only to public sector, not private.

False, applies only to private section but not public, but public sector employees are protected by Fourth Amendment.

T/F: The statutory duty applies to the employer but not the nominal employer.

False, applies to both joint employers so more than one party can be liable.

T/F: Federal discrimination laws apply only to employers with at least 25 employees.

False, applies to employers with at least 15 employees.

T/F: An employer must pay "nonexempt" employees, employees entitled to statutory overtime, according to an established hourly rate.

False, the FLSA will require employers for purposes of statutory compliance to calculate on a weekly basis a regular hourly rate (total paid/number of hours worked) but the contract can provide for any established rate. For example: a contract can be no set number of hours but they will pay a certain/specific amount but it has to be minimum wage or higher. Two margins of safety 1) always pay more than the minimum wage and 2) Not allowing employees to work for the full amount of time of 40 hours (helps avoid overtime and minimum wage requirements).

T/F: DOT regulations do not require drug tests.

False, they do with specific procedures.

T/F: Union's contract applies only to individuals within a "unit" or union.

False, union's contract applies to all within a "unit" regardless of union "membership."

T/F: An employer can be liable for punitive damages related to an employee's action under respondeat superior.

False.

T/F: DOL does not require minimum wage and OT for work actually performed if illegal.

False.

T/F: Department of Justice has not begun discretionary deportation of aliens (exercising discretion not to deport).

False.

T/F: Worker's compensation does not bar suit against one's employer.

False.

Who are the 3 possible enforcing parties for wage claims?

Federal government -Fair Labor Standards Act, state government or private enforcement - contract law.

Insurer is administrator of Employer's plan. Worker believes Insurer erred in rejecting her claim for an additional day in the hospital. If the employee sues - will state or federal law apply to resolution of the claim?

Federal law - may be under ERISA, Patient Protection Affordable Care Act (PPACA) or both.

Employee complains, "you don't pay me enough!" Boss fires employee for being rude and ungrateful. Violation of National Labor Relations Act rights?

First, was action concerted? No, he was acting alone. Two, was he acting for mutual aid/protection? No, he was acting for himself so firing was lawful.

Two employees complain, "you don't pay us enough!" Boss fires both employees for being rude and ungrateful. Violation of the National Labor Relations Act?

First, was action concerted? Yes, there were 2 people. Two, were they acting for mutual aid/protection? Yes, they were talking about both of their pay. The employees are protected and the employer violated the National Labor Relations Act. Remember that employees always have the most rights when they are acting together.

Applicant interviewed for a nursing job at Hospital. She revealed that 4 years ago she was arrested for shoplifting. Applicant said she was wrongfully accused of attempting to steal an expensive pen. She really just forgot she had the pen in her hand when she left the store. She pleaded nolo contendere in order to qualify for a first offender "suspended sentence." Aside from the fact of her criminal record, Hospital likes Applicant and it needs nurses. Hospital wants to know whether it should hire Applicant.

First, you need to distinguish between business recommendations and legal risks. In situations like this, the client will ask for business advice but you can only give legal advice. Second, educate the client about the rules and risks are. Third, tell them this is not per se negligence as a matter of law. It does not look that serious and there's a good chance we can argue that you were not negligent - weak case but can't say positively that judge/jury would agree and dismiss this case as a matter of law.

Worker Status Checklist Contract, Statute and "Factors" - 4

First: Check the contract: does it designate status. An important but not decisive factor. Second: Check law in issue for special definition of coverage. Third: Does federal law and federal "hybrid" test apply? Or state law? If it's a state law, what is that state's test? Fourth: See at least one of many "checklists" of factors that are likely relevant under most laws and most tests: the IRS rule, Supreme Court's Darden case, or Restatement (Third).

What are two ways to measure an accident's work-relatedness?

First: Did it happen in the course of the employment? Second: Did it arise out of a worker's employment?

Employer wants to maintain medical and health records for all of its employees so that it will have information about pre-existing injuries and conditions in the event of a workers' compensation claim. Can the employer ask applicants to describe any workers' compensation claims they have filed in the past? What can the employer do?

For disabilities, the employer breaks the law JUST by asking the question. However, after they hire the employee they can send the employee up to a medical examination. If they fire someone and withdraw the offer afterwards then it's really obvious that they are discriminating against the employee. Saving the data in case there is a future accident is ok though.

Under what circumstances might an employer be liable in tort for an employee's work-related injury?

For intentional tort or gross negligence.

Supervisor was angry when he saw that Worker was leading a community protest against a new waste incinerator, because Supervisor's husband was a manager for the company that proposed the incinerator. In retaliation, supervisor recommended and caused Worker's discharge.

For the private sector, Texas does not have a statute that protects employees from retaliation when expressing their personal opinions. If this was a public sector workplace the First Amendment would protect the employee. The employee will attempt to sue the supervisor but the supervisor usually will not have much money so this has limited value. Will have to determine if the supervisor is acting within the scope as his employment, if so respondeat superior will apply and the employer can be liable for the supervisor's actions. This will be difficult because the employer would argue that the supervisor is acting outside the scope of employment.

Under what circumstances can an employer use a "lie detector," such as a polygraph, in selecting applicants for employment?

For the public sector, lie detector tests are limited by the Fourth Amendment but employers may use lie detector tests for selecting employees. For the private sector, the Employee Polygraph Protection Act very broadly prohibits the use of any lie detector test when selecting employees. However, the Employee Polygraph Protection Act allows but regulates the use of polygraph testing to investigate employee misconduct. Extremely narrow exception for companies that manufacture prescription drugs.

In your own audit or the government's immigration law audit of a workplace, the employer should be able to produce a particular form for all employees hired after the effective date of the Immigration Reform and Control Act (IRCA). What is that form?

Form I - used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Describe what measures an employer should adopt to limit its liability for sexual harassment.

Having and abiding by a sexual harassment policy, making sure the policy does not have one avenue of reporting, i.e., only to the employee's manager, in case their manager is the person sexually harassing them, making sure they always follow the policy and take the same actions for similar situations. Notification system for when an supervisor dates a subordinate in case it leads to harassment.

Is this in the course of employment? Worker took a five minute break to go to the bathroom. He walked into the bathroom, slipped on a wet floor, and broke his hip.

He was at work, during working time but he was not engaged in "work" activity. However, some judges will adopt this idea that a lot of stuff that you do in the course of the workday that is a natural human function in within the course of employment.

What additional employer policies will you be investigating, and why, based on this class?

I would ask about their policy regarding disabilities. An employer cannot conduct a medical examination or make inquiries of a job applicant as to whether they have a disability or as to the nature or severity of their disability. So I want to make sure their policies outline that and do not ask their applicants/employees questions that can violate the ADA. Additionally, I would ask to see the employee handbook and policies to see what other policy/rules the employer has in placed that may violate employment laws.

Based on your reading in Chapter 8, what is one type of provision you would look for if you were auditing a client employer's employee handbook (or, if you prefer, what is a provision you would look for as a plaintiff's attorney representing a discharged employee)?

I would like to look for any type of provisions that may create an employment commitment so the employment may not be considered an at will employment but instead as a contract.

Knowing that employers and employees share a duty to participate in an "interactive process" to explore possibly needed "accommodation" of religious practices or disabilities, what might you propose for an employer to adopt in its policies and procedures?

I would propose for an employer to establish formal process for people to request and discuss accommodation. Probably don't want to leave it up to the supervisors to decide on the accommodations but it'll be better to have an established process for everyone to follow like the human resources department.

When is an argument for promise strongest?

If a policy states rules of rewards earned by working -- the very consideration employee expects in return for work.

Employer, in the private sector, wants to adopt a rule requiring employees to consent to periodic inspection of email sent or received through the employer's internet service. Employer employs a wide range of employees, most at will but a few with special fixed term contracts running from one to five years. How might contract law affect the employer's right to impose this rule?

If employees are at will the employer can change the rules anytime they want, as long as they pay them for the work done, but if they're under contract they have specific rules to follow until the contract is over. So if the employer has a clause in the contract that says the employer can supervise the employee's emails they can.

When can worker's compensation apply to a third party's act?

If it their act was an intentional tort that was work related. Third party's motive is key: Was it work related business? Or was just a personal dispute? If because of personal dispute with injured employee arising apart from work, it isn't an "accident" or "work related." But if tortfeasor targeted the business or was provoked by the work or business, it is a "work related accident."

How to determine if the plan is explicitly or implicitly "Temporary?"

If plan achieves its goals, it will no longer be justified. Permanent preference regardless of future workforce is illegal. Best practice: Include express termination clause in the plan. This plan's temporary duration was implied by clarity that its goal was to attain and not indefinitely maintain balance.

Identify at least two reasons why an injured employee might still have a tort claim connected with an incident covered by workers' compensation.

If they have a claim against a third party or when the employer commits an intentional tort.

What does the NLRA address?

Imbalance of bargaining power, standardization of work and strikes.

What prevails in immigration v. employment law for undocumented workers?

Immigration Policy Prevails - Undocumented worker is "employee" absent an express exclusion. Retaliatory discharge was therefore unlawful. But remedies might be limited by other laws protecting the public.

Katy Cash worked at a check out counter in a grocery store. One day, she was $100 "short" because a stranger distracted her while another stranger reached into her drawer and grabbed cash. Both strangers ran away. The store gave Katy her regular paycheck, without deduction, but required her to write a check for $100 to the store as a condition of keeping her job.

In Texas, it's possible to have an FLSA violation if after she wrote the check and was not making the minimum wage. In other states, like NY, Katy will have a better chance to get the money back. The employer would have to sue Katy and prove to the judge that it was more than just the costs of doing business.

Assume both agreements between Worker and Company are binding. A year later, Company rejected Worker's application for a promotion. Worker believed Company discriminated against her. She was about to submit a claim for arbitration when Company issued a notice amending the arbitration policy's rules for procedure. If Worker demands arbitration, which rules apply to her claim: the old set of rules or the new set?

In order for the employer's promise to be a real one and not an illusory promise, the reservation of the right to modify has to be subject to the idea of vesting. For vesting, if the dispute has already arisen the old rules apply. Arisen means either 1) the date the employee files the claim for arbitration or 2) when the employee and employer is aware of the claim.

Under what circumstances might an employee (or his or her family) be disqualified from receiving benefits for an otherwise "compensable" injury or death?

In some states, willfulness/recklessness may disqualify an employee or beneficiary from receiving benefits, or if they are acting outside the employment, engaged in some crime, under the influence of drugs or alcohol, or intentional conduct that caused self injury.

Where are child labor laws located?

In the Fair Labor Standards Act.

An employee or an independent contract is more likely to retain ownership of what he invents and creates in the course of his work for the employer.

Independent contractor.

What are the three models of employment?

Individual contract model, Collective contract model, and Public employment.

If a rule is discriminatory by design what type of discrimination in this?

Intentional discrimination aka disparate treatment.

What are potential affirmative defenses for discrimination based on personality tests that may reveal mental impairments?

Intentional discrimination: lawful if no one with that condition can perform job ("pedophile"—child care) and an unintentional disparate impact: lawful if correlated with ability to perform job - even after considering potential reasonable accommodation.

What does interception require?

Interception requires acquisition contemporaneous with transmission of message.

Why limit work for children?

Interferes with health, well-being, education; competition with adults. Under 14: Unlawful, except when for parents (or in some agriculture). 14 - 15: Unlawful except as allowed by DOL rules limiting hours and nature of work assigned to children. 16 - 17: Lawful at any hour, but nature of the work is still limited. Some state laws are more restrictive on these points - Texas mandates that you attend school until you're 16.

Supervisor was looking for a missing file. Worker, who was recently using the file, was absent. May Supervisor (a) enter Worker's assigned office without Worker's advance permission? (b) open the drawer of Worker's assigned desk? (c) open a file, left on top of Worker's desk, marked "job offers?"

Invasion of privacy - private sector is tort law), public sector - 4th amendment. In both cases, whether it's the private or public sector we have to ask: "whether worker had a reasonable expectation of privacy?" An employee can have a reasonable expectation of privacy in their office but there are limitations. Here, the worker had a reasonable expectation of privacy in his office but the employer may enter for a special reason. Then ask, was there a special reason why the employer was entering the office? Investigation, find property of the employer? Here, the employer was not conducting an investigation or locating their property etc. Lastly, did the employer exceed their scope? Here, yes. They were did not have a qualified reason for being in the office or for searching in the office. The employer did not have any grounds to investigation/open the file.

What is the Simple Pretext Model for illegal discrimination?

Is employer's legitimate non-discriminatory reason pretext for illegal discrimination? Either it was legitimate non-discriminatory reason or bias. Resembles "but for" rule. Fact finder must choose one and only one or other. BOP is on the plaintiff!

What is the test for a reasonable search - 2?

Is search (1) reasonable in its inception (purpose); and (2) reasonable in scope (in view of purpose for search).

Under what circumstances does the Employee Polygraph Protection Act permit the use of a "lie detector" in screening applicants for employment?

It NEVER allows the use of a lie detector for screening applicants. It does not matter what kind - polygraph etc. However, it is allowed to investigate employees' conduct.

A court recently decided that delivery drivers for Fed X are employees. Why is the status of these and other delivery drivers still not entirely clear?

It depends on the circumstances and how much control the employer has over the individual including how they're paid etc.

Worker was injured as a result of an accident he caused by failing for the third time to follow Employer's instructions not to work without protective gear. He immediately filed a workers' compensation claim. May Employer discharge Worker?

It depends on the employer's ability to prove that the employee's rule violation was the direct causation of the injury then it's the employee's duty to come up with other circumstantial evidence that it was not.

Employer needed additional help at one of its smaller, remote facilities. It transferred Jane Sojourner to the facility because she had the right skills and experience. Jane was 3 months pregnant at the time of the transfer. Six months later she gave birth but discovered she lacked FMLA protection because her remote facility was so small it was not covered by the FMLA. Did Employer violate the Act?

Jane will argue that she would've been entitled to FMLA coverage but for the fact that they transferred her to the remote facility. The transfer interfered with her ability to get FMLA leave. Employer will argue that there was no intent to transfer her to prevent her from receiving her FMLA leave, it was for business purposes because she had the necessary skills they needed at the remote facility.

What is a welfare plan?

Life enhancing benefit for specific purpose or condition other than retirement. Not deferred until termination: distributed during employment. Medical care, disability, funded sick or vacation leave, tuition or job training, dependent day care. No vesting or anti-forfeiture rule; no special funding requirements.

What is the non-discrimination rule for pension plans and what does it do?

Limits pension eligibility rules. Restricts favoritism in pension for highly paid employees. Still permits some disparities and exclusions in pension benefits. No similar rules for welfare benefits but see Patient Protection Affordability Care Act - PPACA.

Why is the Mixed Motive collective-decision making a problem?

Many employment decisions are by "collective" decision. Each decision maker likely has own reasons for decision. Collective discussion might include biased remarks of a number of biased persons. Vote of the collective body might include biased votes.

An employer may or may not charge its share of taxes to an employee.

May not.

What are 3 benefits for work-related injuries?

Medical care, disability, survivor death benefit for work-related injury or illness.

Insurer refused reimbursement of the bill for the anesthesiologist because that doctor was "outside" the group of doctors approved by the plan. Did Insurer or Employer breach a duty by not warning Worker, in advance of surgery, that this doctor was not approved?

Merely failing to counsel and educate the employee is not a fiduciary duty the employer owes under ERISA. The only alleged breach of duty is not warning the employee.

What is a joint employer?

More than one party can be an employer of the same employee with respect to the same job or work. A party that undertakes or controls that duty might be an "employer."

Is this in the course of employment? Worker took an office file home to reorganize it. She leaned back in her chair as she was thinking about the work, leaning so far the chair turned over. She hit her head and suffered a concussion.

Most courts will reject this claim.

What is the Motivating Factor Model for illegal discrimination?

Motive evidenced by a doubtful legitimate non-discriminatory reason or other evidence of illegal bias. Would employer have made the same decision regardless of illegal bias? BOP is on the employer!

What are the 4 requirements for an ERISA plan?

Must have ascertainable: 1) benefit, 2) beneficiaries, 3) source of funding, and 4) procedures and conditions.

What is the process and remedy for an illegal worker?

NLRB conducts a liability hearing, then holds a separate remedy hearing. NLRB awards back pay thru date of employer's discovery of an illegal worker. Hoffman Plastic v. NLRB.

What is a non-subscriber's liability based on? 2 elements

Negligence and caused injury (causation).

Is routine commuting compensable under the FLSA?

No

For jury duty, military or witness service, what can the employer deduct for?

No deduction for lost time, but employer may take credit against Fair Labor Standards Act duty for jury duty or military pay.

What is an applicant's right/duty for employee selection?

No right to be hired over any other applicant.

The Employee Handbook describes a sick leave policy providing pay for up to 10 days of absence due to sickness. Is this an ERISA benefit plan?

No, according to the DOL this is a payroll practice, even if it's a welfare benefit so ERISA does not apply.

Can employer retaliate against claimant by calling Immigration and Customs Enforcement?

No, because retaliation is illegal under Title VII. The employer likely to be investigated for violating Immigration Reform and Control Act.

Are questions that might reveal a "protected" characteristic illegal per se?

No, but it might be evidence of illegal discrimination.

Can an employer still be able for their own negligence if their employee committed an intentional tort outside the scope of employment?

No, but it's possible to be liable for negligent hiring depending on the circumstances.

To avoid employer's statute of frauds defense, Employee noted that his death on Dec. 4 would have ended the contract. Should the court reject Employer's statute of frauds defense? (Clue: "Excuse" v. "completion").

No, death excuses performance. But excuse is not completion.

Is a prisoner doing work for the prison an employee?

No, not under the Fair Labor Standards Act.

If you prevailed in #2 (Worker alleged Farmer sexually harassed her in violation of Title VII), would you be excused from failing to serve process on Farmer, if you did serve Contractor?

No, single employer doctrine does not eliminate the need to serve each person.

Applicant interviewed for a nursing job at Hospital. She revealed that 4 years ago she was arrested for shoplifting. Applicant said she was wrongfully accused of attempting to steal an expensive pen. She really just forgot she had the pen in her hand when she left the store. She pleaded nolo contendere in order to qualify for a first offender "suspended sentence." Aside from the fact of her criminal record, Hospital likes Applicant and it needs nurses. Hospital hired Applicant in the preceding problem. If it had looked more carefully, it would have found she had embezzled $120,000 from her last employer (to help pay for her daughter's law school education). Now Victim is suing Hospital because Applicant punched Victim when Victim complained and crudely criticized Applicant for smoking in the Hospital garden during Applicant's rest break. Does respondeat superior make Hospital liable? Might Hospital be liable for negligent hiring?

No, stealing money from people's pocket is not part of her job and punching someone is not a part of her job. The embezzlement is not the proximate cause for assault and battery but only because the negligence that the employer might have committed is not the proximate cause of the victim's injury.

Worker, an exempt salaried employee, left work early on Monday because of illness and did not work any other part of the week. Can Employer lawfully dock Worker's pay?

No, the employer cannot deduct for illness, sickness or injury. There is a tiny exemption for FMLA leave.

Employer gave an arbitration and non-competition agreement to Wilma Worker and insisted she must sign both agreements "right away". Employer also stated it would not issue Worker's next paycheck until she signed the agreements. Worker reluctantly signed. Do the agreements comply with the Texas Supreme Court's contract model for change or modification of terms in an employment relationship? Does contract law provide a solution for Worker?

No, they cannot deny giving the paycheck because Worker already worked and earned the money so the employer has a Pre-Existing Duty to pay Worker. If they did not pay Worker, they would be breaching their promise to pay Worker. Worker may be able to argue duress or coercion under contract law.

Supervisor was missing her cell phone. She believed Worker had stolen the phone, so she demanded that Worker empty her pockets and purse on a table for inspection. If Worker refuses, may Supervisor instruct a security guard not to allow Worker to leave until she complies?

No, this is false imprisonment. The supervisor can ask the worker to stay and threaten them with discharge but they can't physically impede someone from leaving because this could be a tortious/false imprisonment act. This can also be an invasion or privacy issue because the worker is not in a position to voluntarily consent to the search.

Employer announced an annual bonus plan based on salary and corporate profit. Is this an ERISA plan?

No, this is not serving a pension or welfare function unless it's a type of deferred compensation plan. This may be regulated by other laws but not ERISA.

Supervisor buys a $20 voice stress based "honesty detector" over the internet and uses it to interview applicants. Lawful?

No, this is unlawful because it's an lie detector and can only be used for investigatory purposes.

Employee filed a workers' compensation claim for medical costs and disability. Will ERISA apply?

No, workers' compensation is regulated mainly by the state.

Can an employee waive FLSA rights?

No, you can settle a dispute later but you can't waive your right to FLSA rights. Fair Labor Standards Act.

In Texas, is progressive trauma mental distress, whether "pure" or combined with physical injury, covered at all?

No.

Is processing pay if CSX sends the funds enough to be an employer? If neither CSX nor ESI collected and remitted payroll or income taxes for the employees, who might the IRS sue?

No. Additional facts that might create a statutory liability is if CSX had paid ESI's invoice for the period in question. ESI becomes a trustee when CSX sends them funds to distribute to the beneficiaries (employees). The IRS can sue the employer, staffing company or employees. But the employer is primarily liable and any nominal employer can be liable - staffing agency.

Is training primarily for the employee's benefit compensable under the FLSA?

No. Routine work performed in otherwise qualified training is compensable if excessive.

What does undue mean?

Normally means more than justified, disproportionate, no need. Supreme Court: means any burden more than de minimis and de minimis means "negligible."

What are the two separate areas of illness that are outside of worker's compensation?

Occupational illness (or disease) or progressive injury and trauma.

What are the three varieties for state anti-deduction laws?

One: No statute; only a common law solution. Does a deduction breach a contract to pay wages? Two: Statutory requirement of advance consent to a deduction. Three: Flat statutory prohibition against deduction unless for the employee's benefit (e.g., pension, insurance, advance).

What are other important exemptions for wage deductions?

Outside sales, inside sales - commissioned - and computer/software occupations.

Insurer is administrator of Employer's plan. Worker believes Insurer erred in rejecting her claim for an additional day in the hospital. What should Worker do to assert rights before filing suit?

Patient Protection Affordable Care Act (PPACA) - this is in edition to ERISA protections. Before filing her suit she needs to exhaust all her administrative remedies by 1) filing an internal appeal, 2) demand a written informative explanation of the denial and 3) if the claim is still denied then you can file a lawsuit.

What are the 3 elements for a plaintiff to prove there was a significant disparity?

Plaintiff must identify a policy or practice causing the impact. Plaintiff must prove causation. Statistical proof often essential. Disparity must be significant: 80 percent (or four-fifths) rule. Normally apply 80 percent rule to the pass rate, not a fail rate.

Who has the ultimate burden of proof when the employer presents a legitimate non-discriminatory reason for the adverse impact?

Plaintiff-employee

What is the portal to portal act?

Portal to Portal Act distinguishes principal, or integral, activity from related activity. Principal activities are the very purpose of the employment. Related activities are not the purpose, but are naturally in course of achieving purpose. Principal activity always counts. Related activity depends.

How to determine if the minority preference is pursuant to a legitimate plan - Affirmative Action Plan?

Preference must be according to formal plan and not ad hoc. Did the Affirmative Action Plan exist in fact at time of a challenged action? Was that action according to and consistent with plan? Defendant acted before plan finalized; but court excuses this flaw in view of obvious need and intent for a plan.

Sam leaves for work at 7:30 am, arrives at 8:30 am, waits in line to pick up special protective gear and then "dons" his gear. At 8:45 am he walks 200 yards to his work station and waits for the bell. Work begins at 9:00 a.m. At 5 p.m., work ends and Sam walks to the time clock, waits in line to clock out, waits for space to "doff" his gear, and stows his gear. About 5:30 he is finished doffing and stowing. He walks to the parking lot, reaches his car, and exits the parking lot at 5:40 p.m. He drives home, arriving at 6:30 pm. Classify each period of activity.

Prior related activities are presumed to be noncompensable - driving to work, putting on his gear, walking to the workstation and waiting for the bell. Anything in between like taking a coffee or bathroom break is compenable. Later related activities are presumed to be noncompensable - doffing and stowing his gear, walking to his car, and driving to work.

GG rejected Worker's application for the Assistant Store Manager position. Fred is white, but he believes GG discriminated against him because of his race, or perhaps because he is a Swedish-American Lutheran. Using McDonnell Douglas v. Green analysis, what is the minimal prima facie case for Worker in the absence of other evidence of illegal employer intent?

Problem is it does not seem plausible that White-Swedish-American-Lutheran is a protected category against discrimination. It's possible but highly unlikely.

What is the Store Communications Act?

Prohibits accessing storage if "without authorization."

What type of promises are not enforceable?

Promises of performance that cannot be completed within a year of the day the promise was made. i.e., terms of contract require performance for more than a year.

A police department uses a voice stress analyzer during applicant interviews and asks about drug use in the last 15 years. Lawful?

Public sector - Fourth amendment question. Thus, this is lawful.

An employer client has come to you for advice concerning its proposal to ban "fraternization" between supervisors and employees, and to prohibit "dating" between any two employees. Is the proposal a good idea? Does it matter whether the employer is in the public sector or the private sector?

Public sector v. private sector does matter. Public sector employees have a lot more rights but private sector employers have some rights. Under the U.S. Constitution, an employer cannot limit who employees can date. However, employers do have a legitimate concern for when relationships go sour or the appearance of favoritism. The employer shouldn't prohibit relationships altogether but determine by a case-by-case basis. It will probably decrease employee morale if an employer has a ban to "fraternization". They can regulate a prohibition between employees and supervisors but not do a complete ban.

What are motivations for employers to call workers non-employees?

Respondeat superior, workers' compensation, social security taxes, federal unemployment taxes, income tax withholding, minimum wage, overtime pay, wage law, discrimination laws, ERISA, OSHA, other safety laws and collective bargaining.

What is a pension plan?

Retirement income or other income the payment of which is "deferred" until after employment terminates. Includes retiree health, death benefit paid post-employment. Pension plans will be subject to minimum accrual and vesting, and an anti-forfeiture rule. Funding requirement is more rigorous than for welfare plan.

How might one worker's status affect the rights of his/her fellow workers?

Rule of coverage applies depending on how many employees are in the workplace. Under the employment discrimination law you need at least 15 employees to be considered an employer.

Sailor accepts a job aboard the ship Global Traveler. His contract provides for room and board during a year-long voyage, and payment of one year's wages at the end of the voyage provided he completes the voyage. Six months into the voyage Sailor dies of malaria. Is his widow entitled to any portion of his unpaid wages?

Sailor didn't complete the voyage, a condition, so his widow is not entitled to the money.

Emma Grant worked at Factory in the U.S.. One day, other employees filed a class action alleging sexual harassment in violation of federal law. Emma is a member of the class but she is not authorized to work in the U.S. The employer's attorneys served interrogatories to be answered by each member of the class, including Emma. One of the interrogatories is "if you were born outside the U.S., what is your immigration or resident status?" You are the attorney for the class (or perhaps for Emma as an individual). What do you do or counsel?

Seek a protective order to refuse to answer the interrogatory. The protective order will bifurcate the proceeding to establish liability first then determine back-pay and eligibility for damages. If Emma is already still employed and not looking for back-pay the question about authorization is irrelevant. Her claim may be limited to only emotional distress and therefore the question about her work authorization is irrelevant. Discovery is limited for emotional distress claim in another suit. Courts favor this approach.

What are possible employer goals when selecting employees?

Select applicants most likely to perform well or to advance. Select applicants who will fit best with employer's culture. Select those who present best image or are not embarrassing. Reduce the pool of applicants for more individualized review. Select those least dangerous to the employer or the public.

Worker alleged Farmer sexually harassed her in violation of Title VII. Which doctrine will combine Farmer's and Contractor's workforces to show an "employer" of 15 employees for purposes of Title VII?

Single employer doctrine to count the farmer's regular employees and the labor contractors but the farmer may not have ownership over the labor contractors.

What is not counted towards the regular rate for compensation?

Special Occasion Gifts: Any sum in nature of a gift at a special occasion as a reward for service, if not measured by or dependent on hours, production, or efficiency (e.g., everyone gets same gift card) OR ... Other Bonus: Paid in recognition of service during a period of time if (a) amount is at employer's sole discretion near the end of that period and not pursuant to prior contract or promise causing the employee to expect the payment; OR (b) distributed pursuant to bona fide profit-sharing plan not dependent on recipient's hours of work [or] production.

How does the employee leasing service work?

Staffing service is nominal employer retaining only pay and benefits functions. It assigns all other functions and all other rights to the client employer. Legitimate goal: Efficient provision of various benefits for employees. Illegitimate: Hide experience rating (basis for insurance and FUTA tax wage rate). The client employer fires all employees. Nominal employer hires all of the employees.

Alfred Alien is not authorized to work or even be in the U.S. However, Employer offered him $8.00 per hour to perform construction work. At the end of a 60 hour work week, Alien asked Employer for his paycheck. Employer shouted, "Go back to Mexico!" and refused to pay. The applicable minimum wage is $7.25/hour. Alien asks you what legal action might be possible. Advise.

Start by submitting this case to the Department of Labor. The DOL is more protective than some other law enforcement authorities might be. As a lawyer you can file an action against the employer on the employee's behalf but additionally, the DOL may file an action against the employer too for violating FLSA rules or at the least start an investigation by the DOL. Then you do not have to deal with the difficulty issue of your client not being able to work in the U.S. If you file a law suit there is a risk that it may harm your client. The amount is small so you can also try the small claims court. A possible defense for the employer is illegality - affirmative defense. He can't make an illegal contract with worker that is not authorized to work in the U.S. Even if there's no contract the worker is entitled to the statutory minimum wage of $7.25/hour and overtime pay for the hours worked over 40 hours.

Wendy Weak felt ill with the flu. She left work early on Monday and did not go to work at all on Tuesday and Wednesday. She returned to work on Thursday. What if Wendy takes a half a day "FMLA" absence for a medical appointment in connection with a disabling condition?

Surprisingly, the law permits an employer to deduct for FMLA qualified leave (e.g., because of serious illness or to care for seriously ill family) even for part days.

What is the status of this "common law" cause of action in Texas?

Texas has a common law cause of action to protect an employee that refuses to follow instructions.

Identify a type of employer policy that, while useful to promote safety consciousness, might inadvertently motivate managers and supervisors to discourage the reporting of accidents or filing of injury claims, or to "retaliate" against employees who do report or file claims.

The "employment at will" policy can promote safety consciousness with employees because they can be fired at any time for almost any reason that's not discriminatory but at the same time this may inadvertently motivate managers/supervisors to discourage the reporting of accidents or filing of injury claims or for them to retaliate against employees who do report or file claim by firing them.

Who bears the burden of proof of causation if the plaintiff presents the case under the "mixed motive" model of discrimination?

The Burden of proof is on the employer.

What is the current law for determining who is an intern?

The DOL's six factors is a balancing test to determine who is an intern. The DOL is bound to the other court's decisions regarding what the courts decide for who is an intern and who is not. However, the court is never 100% certain and it's fact by fact basis.

Receiving a benefit of a worker's service does not make one an employer. However, a person might be liable under the FLSA for knowingly accepting the cost-advantage of work that is not paid in accordance with statutory minimums, at least if there is some other minimal indicia of employer status. Why is employer status more easily established under the FLSA than under other employment laws?

The FLSA was designed in part to protect children from child labor and defined employment in an unusual way. Employer is to suffer or permit the work. It's for this reason that someone might become liable as an employer under the FLSA if you accept the cost-advantage of the work that is performed in violation of the FLSA - not complying with the statutory minimum wage requirements.

Mother, Child and Grandmother live together in Grandmother's home. Mother is more than eight months pregnant and is bed-ridden with complications. Child has just developed symptoms associated with enterovirus. Grandmother wanted time off from work to take Child to the doctor, but Employer told Grandma she had exhausted her paid sick leave and would be terminated if she failed to report to work. Grandma paid Caretakers on Call $100 to take Child to the doctor and to look after Child until Grandma could return home. Has Employer violated the FMLA? If so, what remedy is available to Grandma?

The FMLA does not cover grandparents/grandchildren. However, this is not a grandmother problem, it's a mom problem. The FMLA coverage is based on caring for your dependents - the mother's child. Technically grandma is actually taking care of her own child because she's bedridden and pregnant - this will qualify as a serious illness and she can show this by getting a doctor's note. So grandma is protected by the FMLA. This could potentially be an interference claim because they are preventing the grandma from taking care of her child.

What two basic sources of law apply to an employer's "search" of an employee's body or possessions?

The Fourth Amendment protects reasonable expectation from a "search" in public sectors. For private sectors tort law - invasion or privacy.

State the essence of the fiduciary duty of an administrator of an ERISA plan.

The administrator must act in the best interest of the beneficiaries.

Is there a duty to adopt criteria or tests, and to administer tests, to accurately rate eligibility?

The answer may depend partly on who administers test and the severity of potential harm to the labor market.

What is ERISA's remedy?

The benefits due plus other appropriate equitable relief.

When an employer modifies their employee handbook to include an arbitration clause and states that employees agree to this modification if they continue to work after a specific date. Was there was sufficient consideration for the promise to be binding or was the promise illusory? (In Re Halliburton)

The court held that the employer gave sufficient consideration by providing employment after the date the arbitration provision was to take place.

Employer records all telephone conversations involving the use of any the phones connected to its telephone system. What is employer's most likely defense to any charge that it has violated the ECPA?

The device was furnished by the employer, as part of its' communications system and the listing is a part of the employer's ordinary course of business.

What is the easiest and fastest tool to determine whether an employee is in fact authorized to work in the United States (based on possession of a social security number)?

The easiest and fastest tool is the E-Verify system. It's an internet-based instant verification by matching Social Security Administration and United States Citizenship and Immigration Services data. It's available to any U.S. employer. Under federal law: use is mandatory for federal contractor, voluntary for all other employers (but see state law). Results by participants: Only 3% of new hires result in a no match. Ten % of those successfully contest status. Nearly all other "no matches" did not contest their status.

If an employee's emotional distress is "work-related," what are some reasons it might still be possible for the employee to sue an employer in tort without the usual barriers of workers' compensation law?

The employee can sue an employer in tort without the usual barriers of workers' compensation law because the injury can be a non-compensable injury under Texas workers' compensation and the exclusive remedy defense does not apply to non-compensable injuries. Thus, tort law would apply.

Insurer is administrator of Employer's plan. Worker believes Insurer erred in rejecting her claim for an additional day in the hospital. If Employee sues, in what court may she sue (state or federal)?

The employee has the option of where to file if it's an ERISA benefit plan. However, most employers will remove the case to federal court. Federal judges will be more familiar with ERISA.

When Employer hired Techno, it required Techno to sign a covenant not to compete. Employer did not really want Techno as an employee. It's real purpose was to prevent Techno from working for a competitor. The day after Techno started work, Employer informed Techno that he was laid off.

The employee may have a misrepresentation claim if they can prove it. The employee may have a tortious interference with the employee's prospective work.

Assuming an employer has the contractual right to terminate an employee at will, what is a potential tort like wrongful discharge cause of action in some states (based on the material in this class)?

The employee may have a retaliation claim or whistleblower claim against the employer if they filed a claim or reported something.

Employer offered a job to Applicant and told her "we understand you want to give your current employer two-weeks notice, so we'll give you three weeks to start here." Three weeks later, Employer told Applicant it had decided not to create the job.

The employee may try to assert a breach of contract claim but court will likely reject. If the employer decides not to create the job it's just cause. However, it's not a contract the employee can try to assert promissory estoppel claim because the employee quit their current job after the new employer induced them to by offering them a job and the employee detrimentally relied on the new employer's employment.

Employer performed random drug tests of employees. To save money, it performed the tests itself instead of by independent laboratory. The test result for Worker was "positive." Managers discussed the result and decided to discharge Worker without conducting a follow-up test or asking for Worker's explanation. After Workers' discharge, and while he was still looking for a job, Employer's VP attended an industry convention where, over cocktails, he mentioned to other people in the industry that Worker tested "positive." VP also said that the drug test result did not surprise him because Worker was a "difficult person to work with."

The employee will have a defamation claim against the employer - he does not have to prove damages. However, "being difficult to work with" is not necessarily defamation per se. For defamattion per se: DAS presumed (proof of actual DAS unnecessary) if injurious to trade, profession, or business. Defamation is otherwise per quod (proof of DAS needed). Opinion is defamatory only if the opinion implies a "fact." Truth is defendant's BOP if plaintiff is a private citizen, but falsity is plaintiff's BOP if plaintiff is public official. Publication to third party: Is intra-entity communication Publication? Is outsider knowledge evidence publication? Privilege: Provided the recipient shares legitimate interest.

Sleuth Solutions received a grievance by Sue Mohr, alleging that her supervisor Harry Razor sexually harassed her by implying she would not get any promotions unless she submitted to him sexually. Razor denied the charge. Mohr insisted her charge was true, although there were no witnesses to what she alleged to have been a private conversation. Sleuth suggested that both parties submit to a polygraph examination. When Razor declined, Sleuth announced that it had determined that the sexual harassment charge was true, and it fired Razor. Does Razor have a claim under the EPPA?

The employer can only make the request for economic loss but what they could argue is that they could incur a potential liability which is like a loss --- to justify the polygraph. The employer also needs reasonable grounds to believe that Razor was guilty --- he did have access to the other employee and for other additional grounds they have Sue's testimony. If he fails the test, Razor has no claim against the employer.

The Immigration Reform and Control Act (IRCA) prohibits the knowing employment of an undocumented or unauthorized worker. Wanda Border and Imma Grant are co-employees of Employer. Wanda has evidence that leads her to believe Imma is not authorized to work in the U.S. If Wanda calls Immigration and Customs Enforcement ("ICE") to report her suspicions, and if Employer discovers Wanda is responsible for Imma's arrest, can Employer retaliate against Wanda by discharging her?

The employer cannot retaliate against Wanda for reporting Imma because she's not authorized to work in the U.S. Whistleblower laws and anti-retaliation laws prevent the employer from retaliating.

What is an employer's duty to an employee who is returning from a lengthy but protected FMLA leave?

The employer has a duty to restore employee to their original or a "like" position.

State briefly the four requirements for lawful affirmative action and who has the burden of proof?

The employer has the burden of proof to show: 1) Minority-conscious action was according to the Plan, 2) Minority-consciousness was justified by disparity, 3) Plan's effects on non-minorities was limited and 4) The plan (especially provision for minority conscious selection) was temporary or self-terminating.

State briefly a rule or set of rules to require (or topic for training) for the employer's personnel involved in background investigations.

The employer must give advance notice to potential employee of the intent to obtain a background report, obtain the examinee's authorization, give a copy of report and a statement of rights before taking an adverse action.

Write a sentence to add to an employee handbook to confirm an employer's right unilaterally to modify terms and policies stated in the handbook.

The employer reserves the right to change or modify the terms and policies stated in this handbook at any time without advance notice.

If you were auditing an employer's workplace and employment policies, what is one type of employer form for your inspection, and why is this type of form important, based on this class?

The employment application. This form is important so you can see what type of questions the employer asked the employee and whether they were discriminatory and/or per se illegal. So depending on the circumstances, an application question could be prima facie evidence of discriminatory intent.

What is the special hazard exception?

The exception that the employer does owe a duty to the public to hire carefully for a job presenting special hazard to public. Special hazard might be based on proof of unusual magnitude of risk of harm due to incompetence ... Or because job presents employee a special opportunity to abuse or otherwise harm vulnerable persons.

What is respondeat superior?

The legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees conduct performed within the scope of their employment.

Employer told Applicant, "We have top notch medical insurance plan." Applicant accepted Employer's job offer, but then Employer assigned Applicant to a subsidiary that was outside the coverage of the medical insurance plan.

The medical assurance might have been a huge factor in his acceptance for this job and he might've rejected other offers for the medical insurance. The employee may have a misrepresentation claim but it'll be hard to prove intent. Employee can try to show that the employer misrepresented the medical benefits. The employee can argue detrimental reliance/promissory estoppel. The employee would have to prove specific intent to mislead the applicant to accept the job. Would have to conduct discovery to answer these questions and determine the answer.

In Amanare, the plaintiff's nominal employer was a temporary employment agency, Mature Temps. She sued the "client" employer, Merrill Lynch, for discrimination. Suppose her complaint was based on sexual harassment (a form of illegal sex discrimination). She alleged that a man who supervised her at Merrill Lynch sexually harassed her. If Mature Temp and Merrill Lynch are joint employers, can Amanare sue Mature Temp as well as Merrill Lynch?

The mere fact that you are a joint employer does not mean an employee can sue both employers. Joint employer means that you are an employer that carries out some of the employer functions. You are only liable for your particular functions that you are responsible for. Based on these facts, Merrill Lynch is not responsible for the sexual harassment claim.

Officer, a member of the Puritan City police department, belongs to "Love Mary Jane," a social and political group promoting legalization of marijuana. Chief learned this fact when he reviewed marijuana-related web sites and saw a photo of a Love Mary Jane meeting including Officer. May Chief lawfully discharge Officer?

The officer can legally argue that they are promoting a political initiative. Merely promoting legal reform is a first amendment right and since the police department is a public entity and as long as the officer is only promoting his own legal reform, off-duty and not at work, he is protected. The police department has no right to fire him. The city's only argument is that people might not respect the law because the officer is promoting MJ but that's far fetched.

Why is it so difficult for a plaintiff employee to prove that a supervisor's stress-inducing supervision was a tort - assuming no physical contact or assault?

The plaintiff has to prove outrageous behavior which is hard to prove.

What is the interactive process?

The process by which both the employer and employee owe a duty of good faith to negotiate for accommodation and seek a solution.

What is the real hourly rate?

The sum of all remuneration. Divide sum of total weekly remuneration by hours to yield regular hourly rate. Remuneration includes base pay and incidental pay and value of benefits. Incidental pay and benefits are credit toward MW but raise regular rate for OT.

An "associate" lawyer was present when a disgruntled client shot and killed another lawyer at his firm. Two years later, he was diagnosed with PTSD. In either case, what other practical problems do you foresee in the associate's claim for worker's compensation, even if it is timely?

The usual problems with these claims is 1) is he faking it? 2) He's not faking but at the same time they're not sure if it was this particular accident that caused it.

Employee is 40 years old. Employee's spouse, Spouse, is 28 years old and is perfectly healthy except that Spouse now has the flu. Assuming both the employer facility and Employee satisfy basic requirements for FMLA coverage, does Employee have a right to FMLA leave to stay home and take care of Spouse?

There is a provision in the FMLA that covers taking care of your spouse. The spouse would have to have a serious illness/disabling condition.

Employer required qualified applicants to take a drug test. In a form Worker filled out before the test, he revealed he used a prescription pain medicine for arthritis. Employer wants to know if it can lawfully reject Worker for a driving position. What is your answer?

There may be an invasion of privacy claim or ADA violation. Invasion of privacy is a weak argument because they consent to the intrusion by applying to the job. For illegal drugs it's a huge issue for employers. The employer has the right to fire someone and drug test for illegal drugs - this is not regulated by the ADA. Under the ADA, prescription drugs are regulated and their disabilities. If the employer is randomly searching for prescription use of drugs, can only do after a conditional offer, they would have to show that the prescription drugs prevents them from the essential functions of their job.

Supervisor was missing her cell phone. She believed Worker had stolen the phone, so she demanded that Worker empty her pockets and purse on a table for inspection. If Worker refuses, may Supervisor instruct a security guard not to allow Worker to leave until she complies. If a court decides that Supervisor acted unlawfully, should it also hold that Employer is liable for Supervisor's actions?

They can but they usually don't have much money so it's not really beneficial for them to do so. Under respondent superior the supervisor was acting within the scope of their employment so they can be protected. But the worker can argue that they were acting to protect their own property NOT the employer's property so can argue that it's outside scope of employment.

Does an independent contractor owe a duty of loyalty to an employer?

They may or may not, depending on the nature of his service and the terms of his contract.

What if Employer orally promised employee a job "to continue at least through the rebuilding of the city's football arena?

This depends on many extrinsic facts to determine the answer. If the stadium was completed overnight then it's ok but that's not really practical.

Is this third party intentional tort work related? The principal shot Porter in the heat of passion because Porter was having an affair with the principal's wife.

This does not arise out of the work. The original source takes place off the work premises.

At trial, evidence showed that when managers were deciding whether to hire Worker one manager uttered a racist expletive in reference to Worker. The jury has now sent a note to the judge: "We think one manager was a racist, but we believe other managers were honestly dissatisfied with Worker's work. Some of us think we should rule for Worker because one decision-maker did consider "race." Others think GG should win because GC would have rejected Worker anyway. How do we break the deadlock?"

This is a "mixed motive" issue. There are a mixure of motivations for the adverse action and illegal bias is combined with other motives.

An employer of bank tellers, who are trusted with large amounts of employer and customer cash, wants to administer a polygraph examination for applicants and will ask about theft within the last 5 years. Lawful?

This is a private sector so this is prohibited and unlawful. The Employee Polygraph Protection Act (The EPPA) applies to private sector employers.

Worker averages 50 hours per week for $8 per hour with no extra pay for overtime, for Mom and Pop's Burgers. Why might Worker not have an FLSA claim against Mom and Pop's?

This is a small retail shop so coverage could be either based on the employer or the individual employee actually engaging in interstate commerce. Most likely this employee is not engaged in interstate commerce so the FLSA does not apply.

Before calling the health department, Worker tells other employees, "I think I'll call the health department." One of the employees says, "I think you should." Worker makes the call and the employer fires him.

This is concerted activity for the mutual aid/protection of a group of employees so Worker is protected.

Considering the possibility of an emergency evacuation, Employer wants to know if it can refuse to hire persons it believes, based on the initial applicant interview, to be unable to evacuate quickly.

This is dangerous to try to evaluate and make a medical evaluation of employees. You can hire them then send them for a medical exam to see if they can evaluate for safety reasons. If the individual cannot pass the medical exam the employer can lawfully fire the person because personal safety can be required by the employer. However, the employer will have to consider reasonable accommodations for the individual if possible.

Worker calls the local health department to complain about conditions in the employee cafeteria. Employer guesses that Worker made the call, and fires him.

This is not concerted activity so the employee is not protected.

What if Worker left work early on Monday and missed all of Tuesday to help his best friend move into a new apartment?

This is not illness but the employee just does not want to work so the employer can deduct for this absence. The regulations allows employers to deduct for unjustified for absences. A salary covers all periods of sickness (until you're fired). For other absences, use approach that avoids using a "clock" (i.e., full days v. part days or hours).

Employer believed tardiness was disrupting operations. It adopted a rule requiring employees to be at work 15 minutes before the start of work. It did not require employees to perform work during this period. Employees were free to eat, socialize or engage in other personal activity. Must Employer pay for this time?

This is not really stand by time and the employee just has to wait for their next assignment. The employer can include this time when calculating whether the employee is earning minimum wage and/or overtime. Whether the employer has to pay for this just depends on the contract for employment.

Is this third party intentional tort work related? The principal shot Porter because Porter reported drugs Porter found in the principal's office.

This is personal but it has a very strong work connection. Porter reported the drugs because he found them in the school and came out of the work so this is work related.

Is this third party intentional tort work related? Porter surprised a burglar at the school during the night, and the burglar shot Porter.

This is work related. Work exposed him to that risk.

Is this third party intentional tort work related? Smith, another janitor, was hit by the bullet the assailant intended for Porter. Smith files a WC claim.

This was because of a personal dispute but this is a different injured party. Smith is hurt just because he had to be work so this is work related because he was injured at work when other people were fighting.

Is this in the course of employment? Worker went to the factory cafeteria during his lunch period, and bought and ate lunch. Thirty minutes later he was disabled by severe food poisoning that required hospitalization.

This will be a hard lawsuit. Could go either way but the cafeteria is a very dangerous place in a workplace.

When do time limits start for post traumatic stress disorders?

Time limits run from discovery of repetitive trauma/illness and cause.

Why might an employer be interested in such information about medical conditions experienced by Applicant's other family members?

To lower medical costs.

An "associate" lawyer was present when a disgruntled client shot and killed another lawyer at his firm. Two years later, he was diagnosed with PTSD. What if the traumatized lawyer was a partner in the firm?

Too bad.

T/F: Anti-retaliation statute does not protect refusal to work.

True

T/F: Collective action does not violate antitrust law.

True

T/F: Employee is also liable for property employer entrusted to the employee.

True

T/F: Employer can still sue in tort/contract for what worker owes.

True

T/F: In Texas, there is an express exclusion of psychic injury if the event was a bona fide personnel act.

True

T/F: Medical benefits are "welfare," not subject to vesting or anti-forfeiture rules. Plan coverage can terminate.

True

T/F: The Employee Polygraph Protection Act (The EPPA) allows but regulates use of "polygraph" to investigate employee misconduct.

True

T/F: The Uniformed Services Employment and Reemployment Rights Act is not counted as "time worked" for overtime, but other inactive hours such as vacation do count as worked.

True

T/F: US labor law favors one exclusive representative aka Collective Bargaining Union.

True

T/F: ERISA does not preempt state workers' compensation law.

True, additionally ERISA does not apply to a plan designed to comply with a state "workers' compensation" law.

T/F: Federal Drug-Free Workplace Act neither authorizes nor prohibits employer drug test.

True, however state law may regulate occasion and procedure for testing, but supersede tort law and limit or preempt liability.

T/F: An employer generally must pay an exempt white collar employee a minimum salary.

True, it has to be a salary and it has to be a minimum salary.

T/F: The Employee Polygraph Protection Act (The EPPA) broadly prohibits use of any "lie detector" in employee selection.

True, only can be used for investigation purposes.

T/F: A carefully crafted affirmative action plan is legal.

True.

T/F: Intentional tort is outside the scope of employment and not imputed to employer.

True.

T/F: The government can prosecute an employer solely for failing to verify documents for an employee to work for them.

True.

T/F: Title VII does prohibit reverse discrimination.

True.

Private Co. required drug tests of all applicants. To save money it conducted tests itself though its staff lacked formal training to gather samples and interpret results. Mary Jayne tested positive and Private Co. rejected her application. Assume Private Co.'s methods do not satisfy generally accepted testing protocols and that Private Co. was negligent. (a) Did Private Co. violate the ADA? (b) Does Jayne have any other cause of action against them? (c) What changes in the facts would better the odds for a cause of action for Jayne?

Under the American Disability Act, a drug test is NOT a medical examination so the employer did not violate the ADA. This company is in the private sector so can't use the Fourth Amendment but there could be the tort of invasion of privacy however, the employer probably had consent. Additionally, giving a urine sample is usually not considered intrusive unless they do not follow regular protocol or unless, the employer was looking for legal prescription medications in the urine samples instead of only illegal drugs. A fact that would change the odds for an action for Jayne if she can sued the lab that ran the tests --- if they were negligent she would have a good cause of action.

You were born in the USA. You want to hire your twin brother. Must you demand proof of his authorization to work?

Under the law you still have to go through the process to protect the employer just in case. The alternative would be a rule that allows employer not to check if they're "sure" someone is a US citizen so many employers might be wrong and hire an illegal alien. Another issue is visual identification that is not accurate.

What are some of the potential legal challenges against paper and pencil "personality" or "honesty" testing?

Under tort law, there may be an invasion of privacy depending on what was explained to the applicant like what they're looking for etc. Consent is speculative if the questions are beyond the scope of what was initially explained to the applicant. For constitutional issues in the public sector, there might be an invasion of privacy under the 4th amendment. For special statutes, personality and honesty tests generally do not have disparate impacts in regards to gender, race and age but they may discriminate against 1) people with specific moods and 2) some immigrants where English is not their first language. Texas does not have any special statutes or protections.

If a rule is discriminatory because of an disproportionate impact, what type of discrimination is this?

Unintentional discrimination aka disparate impact.

What does "Sue Generis" mean?

Unique, every employment contract is unique.

What is the unlisted "fact" in the Green case and other possible rationales for discrimination?

Unstated fact: Racism has been widespread in American society. Unexplained rejection of racial minority is naturally suspicious. Rejection of employer's legitimate non-discriminatory reason heightens suspicion of a bias. But an alleged uncommon bias requires some extra fact making that bias by employer plausible.

What is an employer's duty to persons returning from an absence due to uniformed service?

Upon reemployment, such employee is entitled to seniority and rights and benefits of seniority according to the escalator principle.

What is complete preemption?

Usual well-pleaded complaint rule for avoiding removal does not apply if alleged claim is within the scope of ERISA's remedies.

What are an Employer's Duties in Hiring Under IRCA, 8 U.S.C. § 1324a - 4?

Verify ID and authorization (check residency papers for all new hires!). Do not knowingly hire or continue "worker" you learn is unauthorized. Good faith verification of documents creates presumption that you did not have notice of a lack of authorization. Don't discriminate based on citizenship, national origin!

Other Types of Worker Classification Problems

Volunteers who work without pay?, Interns or students working for "academic credit" trainees, infra., Partners and owners performing same work as their employees., Officers and directors performing routine supervision, administration., and "Salts" and "testers" accepting employment for ulterior motive.

What is the exclusive remedy rule for worker's compensation?

WC law bars tort suit against employer or fellow employees. However, intentional torts may disqualify the actor from the WC defense. The employee can still assert an exclusive remedy defense if the employee's "third party" intentional tort is "work-related".

What is the modified work relatedness test for illnesses outside of worker's compensation?

Was illness or trauma caused by conditions characteristic of or peculiar to work/workplace?

This year, the Fire Department hired its first female firefighter, Brenda Blaze. When Blaze arrived at Station No. 30 for her first day of work, she noticed that the station's firefighters frequently watched porn on the big screen TV in the common area of the quarters and made raucous and rude comments about the actors and actresses. When Blaze complained to the captain that the other firefighters' behavior was offensive to her, the captain replied, "Lady, we don't have to change the way we are just because you showed up. If you don't like it, you can put in a request to transfer." Has Blaze suffered unlawful sexual harassment? Have the firefighters or the Department committed a tort?

Was the alleged harassment by a "supervisor" of Brenda? Yes by ratification. Did a supervisor take a tangible job action against Brenda? Hostile atmosphere or just create or permit an offensive or hostile atmosphere? For offensive atmosphere: Was harasser's conduct (1) unwelcome to Brenda? Yes. (2) Was it also "severe" or "pervasive?" Yes, everyday and on large screen. A new wrinkle: Was harassment because of (not just about) "sex?" It's not harassment because of her sex it's just offensive in nature. If it was by a supervisor, can department prove affirmative defense? Might be difficult depending on the pervasiveness of the conduct. If by non-supervisor, can Brenda prove department's negligence? Since she complained to the captain this will help her case. Another new wrinkle: Is lack of intent to act against Brenda a problem? Yet another new wrinkle: Potential First Amendment issues.

When determining whether an accident was in the course of employment what 3 questions should you ask?

What was the 1) time -on duty? 2) place - at workplace? 3) activity - engaged in work?

Employee complains, "Joe tells me he makes $6.00 an hour. You should pay me the same." Employer fires both employees for violating a rule against discussing wage rates.

When employees are discussing wages this is concerted activity and they are doing this for their mutual aid and benefit. It is NOT lawful for an employer to have a policy against employees discussing wages with each other. So here the employees are protected and the employer violated the law.

When can an employer use a polygraph?

When it's an investigation that relates to economic loss such as theft, property damage, sabotage, espionage and trade secrets.

When does an employee's temporary medical condition qualify as a serious health condition sufficient for FMLA protection of the employee's leave of absence from work, assuming the employee will not be hospitalized?

When the employee has a continuing treatment by a "health care provider".

When does the employer, as the creator of an ERISA plan owe a fiduciary duty?

When the employer is acting as an administrator of the plan. E.g. providing information to DOL/employees; deciding claims; managing plan assets and other plan administration.

In Texas employment law, what is a "nonsubscriber"?

When the employer or employee opts out of workers' compensation.

When is an employer strictly liable for a supervisor's tangible job act?

When the supervisor makes an employment decision based on submission to harassment. Liability for acts of all others without tangible job effects is based on plaintiff's proof of the employer's negligence.

When is an employer strictly liable for a supervisor's sexual harassment?

When the supervisor takes an actionable employment action → didn't give the job, fired you, denied a raise etc. The employer is strictly liable because they hired the supervisor.

What is constructive notice and when can an employer be charged with constructive notice?

When you know or should know a fact is likely, but you avoid "enlightenment." Failure to verify, not charged, could still be evidence of the manager's constructive notice.

What are possible factors for the rational of allocation of costs of working?

Whether it is part of the regular cost or risk of being in the business, who has the best ability to control, limit the cost/risk, and the expense results in personal and useful benefits to the employee.

What is the key test for an employee v. volunteer?

Whether the work serves mainly as an employer's own interests or a civic or charitable purpose.

What is the test for "on call" employees?

Whether the worker is able to use time effectively for purely personal pursuits, the required "response time" and local conditions might limit personal use of such time. If the worker cannot use time for purely personal pursuits they are an on call employee.

Employer increasingly resorts to outside agencies or various internet sites to investigate the background of applicants. If you are auditing and employer's workplace and practices, what must you investigate about the employer's practices in this regard?

Whether their procedures comply with the Fair Credit Reporting Act.

Green Grocery terminated Belinda Worker's employment as Assistant Store Manager. GG then hired Fred Worker. Using McDonnell Douglas v. Green analysis, what is a minimal prima facie case for Worker in the absence of other evidence of illegal employer intent?

Worker needs to state the adverse action - she was fired. A possible legitimate non-discriminatory reason is that the job has been eliminated but it hasn't, it's still there.

Why might an employer want workers to be "employees"?

Worker's compensation - employee gets compensated for their work related illness and it's no-fault if it's work related. If you're an independent contractor this doesn't apply but they have the ability to sue in tort and there's no cap on what you can recover like pain and suffering or even emotional distress. Independent contractors also have no duty for trade secrets etc.

Are special missions, travel between work sites compensable under the FLSA?

Yes

Is training primarily for the employer's benefit compensable under the FLSA?

Yes

Is unavoidable employee misconduct a recognized defense?

Yes

Is an employer-provided accidental injury insurance plan an ERISA plan?

Yes!

Does an employee owe a duty of loyalty to the employer? If so, what kind?

Yes, a duty of loyalty not to engage in competition or to serve a competitor during his employment.

Federal Contractor requires employees to buy a uniform for $100 before beginning work. It prohibits wearing the uniform away from work, but does not reimburse the cost. Worker paid for a uniform, and then earned $500 for 40 hours in Week One. The minimum wage by executive order for federal contractors is $10.10. Could Contractor recoup its extra payment by taking "uniform cost" deductions from her check in the following week(s)?

Yes, as long as the employer does this in small pieces so the employee still gets the minimum wage every week.

For purposes of promotions, Employer grades employees by their attendance records. Might this violate the FMLA? How or why?

Yes, because they are discouraging people from getting FMLA leave.

Is an employer liable for a supervisor creating a hostile atmosphere?

Yes, but subject to an affirmative defense based on employer proof of diligence. Employer has the burden of proof.

Suppose Halliburton required each employee to sign an acknowledgement and acceptance of the arbitration policy. Myers received the policy and acknowledgement form but he refused to sign it. His supervisor did not press the matter, either because he wished to avoid conflict or he was simply neglectful. Halliburton did not fire Myers, and Myers continued to work. Is Myers bound by the arbitration policy?

Yes, by continuing to work he accepted the arbitration policy. The employer should put a clause in the acknowledgment that the employee agrees to the terms of the contract if they continue to work.

Employer required new hires to consent to a blood test and urinalysis, explaining "we are mainly looking for illegal drug use." However, Employer's outside laboratory reports also revealed detection of some prescription drugs including pain relievers and anti-depressants. Employer withdrew its offer to Michael Payne because he used a powerful pain relieving drug. Has Employer violated the law, based on what we have learned?

Yes, for an at will employment there was no contract to employ him, however, this offer was conditional on passing a drug test checking for illegal drugs. He did not have any illegal drugs in his system so the employer DID violate the law and breached the contract. Under tort law, it's mainly for private sector employees because public employers are often protected by immunity. In hiring cases, invasion of privacy is most likely issue. Was there consent? Consent exceeded? Here, he did consent to the drug test. However, the search of the blood itself was an intrusion and an invasion of privacy. The scope was exceeded because they were only supposed to look for illegal drugs. They did not have consent and no authority to search for legal drugs. Mr. Payne may have a tort claim against the employer depending on what they told Mr. Payne they were testing him for. For tort claims, the action also has to be offensive, but this is decided by the jury. Under constitutional law, for a public sector employer it's governed by the constitution and includes the 1st, 4th, 5th and 14th amendments. Mainly a 4th amendment problem - was this an illegal search and seizure. Taking the blood and searching it is protected by the 4th amendment ONLY for the public sector, NOT for private employers. Employer can be liable for conducting a search of blood, for legal drugs, without consent. There's also other special statutes that the employer could be liable for: Discrimination Laws (intentional discrimination; disparate impact; duty to accommodate); other specialized laws. If the employer is discriminating against Payne for using pain killers he may have a cause of action under the American Disabilities Act because this is considered a disability. However, the employer may have a legitimate non-discriminatory reason if the job was related to safety and the employee could not be on medication to perform the duties of the job.

Are volunteers considered employees?

Yes, for respondeat superior, if the employer was aware of and accepted their services, and they were subject to the employer's control. But for not for most statutory purposes.

After extending a job offer to Applicant, Employer asked Applicant to submit to a medical examination that included questions about medical conditions experienced by Applicant's other family members. Is this inquiry subject to the Genetic Information Nondiscrimination Act?

Yes, the Genetic Information Nondiscrimination Act prohibits the collection of genetic information by other means such as asking about someone's family members. This is also another reason why an employer should stay away from asking about an person's national origin.

Worker was not at fault in causing the accident in which he suffered injury. However, he remained away from work for four months because of the disabling effects of his injury. May Employer fill Worker's position with a new hire and discharge Worker?

Yes, the employer can fire you for not being at work. No employer has an obligation to continue to employ you if just can't work anymore. However, the whole point of worker's compensation is to give the employee disability pay. But they are not required to save a position for you if you're not able to work.

Salaried, upset that he was ordered to work on Saturday for no extra pay, posted a picture of Boss on Facebook, adding a moustache to make Boss look like Hitler. Some employees "liked" the posting. Boss fired Worker and everyone who "liked" the post. Did Boss violate the law?

Yes, the employer did violate the law. The best defense the employee has is under the National Labor Relations Board, Section 7 as concerted activity and is protected. The fact that other employees "like" the post makes this a conversation and concerted activity.

Employer hired mainly young people. Its hiring policies also included a refusal to hire persons convicted of drug offenses, including drug possession, during the last 10 years. Might this policy violate the law against discrimination? Under what theory?

Yes, this is a disparate impact and discriminates against older individuals.

Bank is missing $1,000 one day after hiring Applicant. Bank wants to conduct a polygraph examination of Applicant. Could such an examination be lawful?

Yes, this is lawful because this is for investigations of an employee. This is only unlawful for the selection process for private sectors.

Employer adopted an incentive program awarding a bonus to supervisors whose units reported no work-related accidents in a one year reporting period. Do you foresee any problem with this policy?

Yes, this may encourage the supervisor to discourage employees to not report injuries so they can get their bonuses.

On December 1, 2015, Employer orally promised Employee a job "for a one year term" to start on December 3, 2015. Can Employer successfully invoke the statute of frauds defense?

Yes, this promise runs more than a year because it was made on December 1 and the actual service will not start until December 3rd. You always look at the date the promise was made.

Al Payne worked for 20 years for Ace Warehousing, unloading trucks and moving inventory, until he hurt his back lifting a box at home. Payne's doctor recommended that he must not lift more than 25 pounds for the indefinite future. This made it impossible for Payne to perform his usual job. Ace has an opening for a "shipping clerk," and this job would not require any lifting. Payne is qualified for the job but another "outside" applicant is more qualified. Must Ace give the job to Payne?

Yes, under the American Disability Act, an accommodation may include a transfer for the employee to work in another department where their disability is not an issue.

Bob Boss, manager at the Main Street Grill, noticed that Tom Cook, the cook, was lethargic and was sneezing and coughing. Boss ordered Cook to go home even though Cook protested he was not really that sick. Cook never saw a doctor, and he came back to work in five days (including an intervening weekend). Six months later Cook suffered a mild heart attack. He was unable to work for three months. Suppose that counting the days Cook missed for the cold or flu means he exceeded FMLA limits, but not counting those days means he is within FMLA limits. Must Main Street restore Cook's employment?

Yes, unless he misses one more day because he used up all of his FMLA already. FMLA coverage is based on facility and a small restaurant is unlikely to have more than 50 employees. First, you have to find out if the restaurant has 50+ employees. Second, determine if the cook has worked at least 1250 hours in the last 12 months. There is some obligation of employer to let employees knows that going home will count against you. If the employer within a reasonable amount of time says they will count the time as FMLA and the employee doesn't object then it's ok.

If an undocumented worker voted in an union election will it still count?

Yes.

Is interrogation, disciplinary interviews and meetings compensable under the FLSA?

Yes.

Will an undocumented worker count as an "employee" in a test of employer coverage?

Yes.

Could you count Farmer's 12 year old child as an "employee" from Question #2? #2: Worker alleged Farmer sexually harassed her in violation of Title VII. Which doctrine will combine Farmer's and Contractor's workforces to show an "employer" of 15 employees for purposes of Title VII?

Yes. Depends on circumstances - agricultural employee.

Are there ethical dilemmas in representing unauthorized worker.

Yes. Duty of candor to court, aiding violation is a crime. Make sure you know, understand, counsel regarding potential consequences and know, prepare for difficulty of future communication.

Does Texas provide coverage for an emotional injury caused by an "event" aka specific accident?

Yes. I.e.,accident, not progressive trauma.

Are questions about one's health or disability illegal per se?

Yes. Strict liability just for asking under the American's Disability Act. But once the employer offers employment it changes and the employer is allowed, subject to certain limitations, to make an offer contingent on a medical examination and the employer can also conduct medical examinations with respect to current employees if the employer follows certain rules set out in the outset.

Wendy Weak felt ill with the flu. She left work early on Monday and did not go to work at all on Tuesday and Wednesday. She returned to work on Thursday. Can employer discipline Wendy for excessive absences?

Yes. The act does not prohibit disciplinary action based on attendance.

When Worker accepted employment, Employer had a "cash balance" sick and vacation leave policy that allowed an employee to accrue the cash value of unused sick and vacation leave and take the cash value at retirement or other termination of employment. Worker had accrued $5,000 in unused leave when Employer revised its policy, effective immediately, so that unused leave no longer had cash value and was forfeited, if not used, at the end of the year in which it accrued. If Worker resigns now, is she legally entitled to $5,000?

Yes. This is a contract issue regarding compensation. First, is this an Individual Contract or Collective Bargaining Agreement? Individual Contract is generally superseded by the Collective Bargaining Agreement. Process for enforcement differs. Secondly, is this an At Will Employment or Fixed Term? At Will Employment allows for employer's unilateral declaration of new terms at any time, subject to acceptance by employee's continued employment or other manifestation of assent. Fixed Term employment actually fixes some rules for duration of the fixed term - subject to modification or termination at the end of the fixed term. However, if it's a fixed term contract then it fixes and specifies the rules for the fixed term but it can still change some policies. Thirdly, are there any Other Models of Indefinite Job Security (e.g., Tenure)? These contact models do not "fix" rules much beyond employee's right to continued employment—and employer can terminate even this, unilaterally and without notice. Lastly, what are the Vesting Rights? Even at will employee gains vested right when he or she earns the compensation and fulfills all conditions of the right. If the employee has satisfied all the conditions for the benefit they are entitled to the cash value. Here, Worker was vested when the policy changed so she is entitled to the $5,000.

In conducting a workplace audit, you'll want to be sure a client employer's payroll practices do not violate the law. (a) In Texas, what is required for an employer to withhold or take any deduction from an employee's paycheck (other than deductions required by law, such as tax withholding)? (b) Assuming compliance with subpart (a), what federal law complications must an employer avoid in deducting or withholding from employee pay?

a) There are two times an employer can deduct from wages: 1) they can deduct for penalties/fines imposed in good faith for infractions of safety rules of major significance. The second time is deducting for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules. Such suspensions must be imposed pursuant to a written policy applicable to all employees. b) The employer should be careful not to lose their exemptions for salaried and white collar employees because of their deductions and withholding procedures. If they can show that the company's written policy is stated in the employee manual regarding deductions and that their supervisor violated the policy, thus the deduction was wrongful but an isolated incident, they may be able to save their exemptions and just have to reimburse the employee. For Texas in particular, deductions should be authorized in writing by employees.

States are/are not free to adopt their tests for state law.

are, federal v. state status may differ

Contract is based on ______ and __________________, not __________.

assent, consideration, NOT reliance

Assent requires __________________ of offer but not of all its details.

awareness

Real value of wage is reduced by all the __________ of working.

costs

Under the American Disability Act the employer must not discriminate if claimant can perform _______________ tasks with _______________ _____________________.

essential job, reasonable accommodation. The ADA duty of accommodation is much greater than a de minimus rule.

Any contract rights depend on ___________ and ____________to contract.

notice, assent.

Whether preference is reasonable (or an undue burden) probably depends on disparity on ________________________

qualifications for a job

An unlawful employment practice is established when the complaining party demonstrates that ____________________ was a _________________________ factor for any employment practice, even though other factors also motivated the practice. If an employer proves it would have made the same decision regardless of the illegal _______________, court must ______________ reinstatement and back pay.

race (or other protected category), motivating, motivating factor, award injunctive relief and attorney's fees.

Accommodation is ____________________, will cause no ____________ ___________________.

reasonable, undue hardship.

Company is an employer if it "______________ or ______________ [plaintiffs] to work."

suffered or permitted. But even this broadest liability rule requires more than receipt of service.

Employee means __________________ under every federal statute unless a particular law says otherwise. Nationwide Mutual v. Darden.

the same thing - Statutory purpose suggests worker may be "employee" under one law but "independent contractor" under another. Statutory purpose is NO longer a factor for statutory purposes.