Law Final

The primary lesson about Microsoft temps is

Can't exclude employees from benefits plans by labeling as temps

True regarding enforcing employment laws

Courts and gov agencies hear cases only after employees come forward with complaints about violation

Who does Title VII apply to?

Employers that have 15 or more employees

T/F As its name implies the FCRA replies to only reports regarding creditworthiness

False

T/F Discrimination is gone

False

T/F Disparate impact is focused on intention

False

T/F Employment laws are passed only by states and federal govs, not by cities or counties

False

T/F Retaliation can be brought only by the person who was retaliated against

False

Sources of employment laws

Fed State laws Constitution

Lewis v Heartland, fired her because her dress is more masculine. What will the court rule?

For Lewis because the kind of sex stereotyping she encountered constituted sex discrimination

NAACP v N Hudson Fire the court ruled

For the NAACP bc there were less discriminatory means of achieving the goals

Regarding compliance with the Immigration Reform and Control Act and documents received

If they appear to be genuine, employers are not required to investigate or verify the authenticity of docs presented or supplied by the employee

What is not true regarding the Employee Polygraph Protection Act?

It prohibits the use of polygraphs by private sector employers for any reason (know that gov cannot use and private can)

What recruitment strategy has the greatest potential for discrimination?

Nepotism or word of mouth

What is not an example of a medical exam?

Physical fitness test

What is an example of a discriminatory practice in the wording of ads?

Placing an ad looking for a recent college grad

Which is a protected class: height, religion, intelligence, mngt status?

Religion

Concluded interview with applicant and like her and you tell her she just needs to pass her medical test and she has the job, but she tells you that the exam will prove she has cancer. What do you tell her?

Tell her not to worry, and that if she otherwise passes the medical exam she has the job

What did the article the gig is up state?

The analysis to determine independent contractors has not changed

The key element in disparate treatment is discriminatory intent. In this context that means

The decision was made in whole or part based on the protected class characteristics of the employee

What has to be shown in order to establish a prima facie case of retaliation?

The employee lost an employment opportunity shortly after engaging in protected activity

Regarding the interviewing process

The use of a structured interview may provide more uniform results and fewer charges of discrimination

Mike threatens to go public about Tom being guilty of plagiarism and sexual relations with a student. Tom goes to his attorney and files a defamation lawsuit right away. What will be the outcome of the case?

Tom will lose because the statements were not published

T/F Disparate treatment is focused on intention

True

T/F Employees may be fired at any time for any reason not prohibited by law

True

T/F For both public and private employers affirmative action plans are subject to strict scrutiny

True

T/F It is difficult to determine if employment relationships exist

True

T/F Privacy is one of the grounds for recognizing BFOQ

True

1. Employees have the right to discuss with fellow employees the terms and conditions of work, even if there is no union at the business. a. True b. False

a

1. Regarding employer searches of employees at the workplace, which of the following is true? a. Generally, employers may conduct searches of employee workplaces, although obtaining consent is best b. All such searches should be conducted while the employee is away from his desk c. Evidence obtained through searches can be retained by the employer d. If the evidence being searched for is stolen property belonging to the employer then the employer has a prima facie defense to any tort claims

a

1. Regarding surveillance and video monitoring of employees, it is correct to say all of the following EXCEPT: a. Before surveillance or video monitoring of employees can take place, a search warrant must be obtained b. Surveillance and video monitoring of employees can take place in all places open to public view, without the need for a search warrant c. All employees, public and private, have some reasonable expectation of privacy at work d. A written policy explaining the employer's surveillance and video monitoring practices is a good idea

a

1. The Electronic Communication Privacy Act: a. Prohibits the intentional interception of electronic communications b. Prohibits the monitoring of computer use by employers c. Prohibits the accessing of stored e-mail messages by employers d. Prohibits the monitoring of employee business calls from an extension

a

1. The maximum number of hours that an employee can work in a workweek under the Fair Labor Standards Act is: a. Not limited for employees 16 years of age and over b. Limited to forty hours per week for employees under 16 years of age while school is in session c. Not limited for employees 16 years and over, but it must equal no more than 40 hours a week when averaged across any two work weeks d. Limited to 50 hours per week for employees who are non-exempt, but there is no limit for exempt managers and professionals

a

1. Under the OSH Act, a workplace need not be made completely safe, but must be made safe enough a. True b. False

a

1. Which of the following is a fiduciary duty under ERISA? a. Ensuring that plans operate in accordance with plan documents and ERISA b. Maintaining the firm's stock in the pension fund assets to minimize the risk of large losses c. Managing benefit plans and funds solely in the interest of the plan employer d. Keeping benefit plan costs as low as possible

a

1.) In the case of "equal opportunity harassers" who harass both men and women, the courts tend to rule: a. For the harasser, because the harassment is not because of sex b. For the harasser, because the harassment is not proven in that circumstance c. For the victim of the harassment, because the harassment is because of sex d. For the victim of the harassment, because harassment is proven generally

a

1.) The EEOC's guidelines hold that broad English-only rules applied at all times are: a. Presumptively discriminatory b. Presumptively non-discriminatory c. Valid, if an employer can show a business necessity for a broad-cased, all-time ban on other languages d. Invalid, because the employer can never show a business necessity for a broad-based, all-time ban on other languages

a

1.) The federal Jury System Improvements Act: a. Protects persons who serve on federal juries from discharge, intimidation or coercion by their employers because of their jury service b. Applies a Title VII approach to selection of jurors c. Reduces the number of jurors on a standard jury from 12 to 6 d. Requires that employers pay their employees at their regular rate of pay for the time spent serving on a federal jury

a

1.) Under the ADA, it is important that job descriptions: a. Clearly identify the essential functions of jobs b. Clearly specify how job tasks are to be carried out c. List reasonable accommodations that are available to an employee in this job d. Clearly identify the working conditions for this job

a

1.) Which of the following is a "qualifying event" under the FMLA? a. Birth of a child b. Death of a cousin c. Serios health condition of an employee's grandparent d. Serios health condition of a fiancée

a

1.) Which of the following is part of the "affirmative defense" available to employers in certain hostile environment cases? a. The employer exercised reasonable care to prevent and correct promptly any harassment b. The employer knew or should have known about the harassment c. The employee took advantage of preventive or corrective measures provided by the employer d. The employee failed to create a harassment policy

a

1.) Which of the following would usually be considered a reasonable accommodation of disability? a. Providing a part-time or modified work schedule b. Relaxing a production requirement c. Relaxing a performance standard d. Transferring essential job functions to others

a

Regarding drug tests what is not true a. The employer must begin the test again with a new sample b. Employer can perform a second confirmatory test if asked by employee c. Employee must be allowed access to a sample to test their own d. Employee must be provided with notice that drug testing is required

a

Difference between US workers and foreign national workers

a. The duration of employment is limited for foreign nationals and not citizens

Determining whether discrimination has occurred you must analyze

a. The relevant labor market

A q that would not create potential liability for the employer if asked in an interview?

a. Why do you want to work for this company?

1. A department store clerk learns that her employer has pleased a hidden video camera in the employee changing room. If she sues, the claim would most likely be for: a. A violation of her 4th Amendment right to be free from unreasonable search or seizure b. Intrusion upon seclusion c. Public disclosure of private facts d. Appropriation of a name or likeness

b

1. A principal objective of the Occupational Safety and Health Act is ____; a. Compensating employees for injuries and illness that occurs on the job b. Preventing injuries and illness on the job c. Promoting healthier life styles for employees d. Catching employers that harm their employees on the job

b

1. An employer would likely prefer this kind of pension plan: a. A defined benefit plan b. A defined contribution plan c. A hybrid d. An FLSA retirement based plan

b

1. If an OSHA violation is found at a workplace, the employer must post a notice about it near where the violation occurred. a. True b. False

b

1. Overtime pay is required for hours in excess of 8 worked in a single workday. a. True b. False

b

1. Pursuant to ERISA, a plan administrator under a fiduciary duty is required to act in the best interests of the employer. a. True b. False

b

1. Which of the following is not a fundamental right conferred on employees by the National Labor Relations Act ("Sec. 7 rights")? a. The right to self-organized b. The right to fair pay and benefits c. The right to strike d. The right to assist labor unions

b

1.) "Serious health conditions" include: a. Pregnancy b. All conditions that require hospitalization c. All conditions that require treatment by a health care provider

b

1.) In order to qualify for leave under the Family and Medical Leave Act, one condition is that an employee have been on the job for at least 6 months a. True b. False

b

1.) In the case in which a woman ended her brief fling with a supervisor while on vacation, and was demoted when she rebuffed him, the appeals court ruled: a. To affirm the summary judgement ruling in favor of the male supervisor because no harassment was proven b. To reverse the summary judgement ruling in favor of the male supervisor because the woman raised issues of material fact c. To dismiss the case for failure to state a cause of action d. To reverse the summary judgment ruling in favor of the male supervisor because he was not the woman's supervisor

b

1.) Legal protection against discrimination based on sexual orientation is found in: a. Title VII of the Civil Rights Act b. State and local statutes ordinances only c. The U.S. Constitution, under which public employers must show that a "compelling governmental interest" is served by the discrimination d. Executive Order 11246

b

1.) Regarding an employer's obligation to accommodate disability and religion, it can be said that: a. The obligation to accommodate in these areas is consistent with the employer's obligation to accommodate in other areas of the employment relationship b. The obligation to accommodate in the areas of disability and religion is unique to those areas of the employment relationship c. The obligation to accommodate is voluntary, except for federal employers d. Both the obligation to accommodate in the areas of disability and religion is unique to those areas of the employment relationship and the obligation to accommodate is voluntary, except for federal employers only

b

1.) Regarding harassment, which of the following statements is NOT true? a. Harassment is a serious problem in the workplace b. The definition of harassment is contained in the federal AntiHarassment Law c. The definition of harassment does not include workplace bullying d. Not every form of workplace bullying is legally actionable

b

1.) The "reasonable accommodation" standard is the same for both disability and religion a. True b. False

b

1.) The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that: a. All persons returning from military service must be reemployed b. Employers must attempt to reinstate persons returning from military service into the positions that they would have attained absent service, including any promotions c. Employers continue to provide at least partial pay to employees serving in the military for up to 24 months

b

1.) The plaintiff in a harassment case must prove: a. The harassment was because of sex b. The harassment was directed toward a protected class c. The harassment was welcome d. The harassment created a hostile work environment

b

1.) The specific actions that constitute "reasonable accommodations" for disability are set forth in the Americans with Disabilities Act a. True b. False

b

1.) When a female supervisor demands sexual favors from a male employee so that he can keep his job or get a raise, it is called this: a. Same sex harassment b. Quid pro quo harassment c. Severe or pervasive harassment d. Cruel and unusual harassment

b

1.) Which of the following is true to harassment? a. All harassment cases involve sexual harassment b. Harassment is legally actionable bc it is a form of discrimination

b

Example of BFOQ a. Transferring pregnant woman out of area where are chemicals harmful to fetus b. Requiring airline pilots to retire at 60 yrs old c. Not hiring women for the night shift bc the factory is in a dangerous part of town and the lot requires a .5 mile walk to the site

b

How do volunteers become employees?

by receiving significant remuneration

1. "Tipped employees" can be paid less than minimum wage provided: a. They agree to a reduced minimum wage salary, however, if they don't agree they must be paid the full minimum wage and any tips are forfeited to the employer or the other employees b. They retain on an individual basis all tips that are earned; pooling of tips is not permitted c. Their total pay in wages and tips equals at least the minimum wage d. The employee customarily and regularly receives at least $30 per week in tips

c

1. A woman wrenched her back participating in a limbo contest on the weekend. Feeling better she went to work at her job as a secretary on Monday. Lifting a box of copier paper, she experienced severe back pain and needed immediate medical attention. She was off from work for two weeks due to the injury and filed a claim for workers' compensation. If her employer contested the claim, the most likely outcome of the cause would be: a. Denial of the claim because the injury did not occur in the course of employment b. Denial of the claim because, under the usual exertion rule, the injury arose out of employment c. Granting of benefits because, under the usual exertion rule, the injury arose out of employment d. Granting of partial benefits due to the pre-existing injury

c

1. Regarding the Pension Benefit Guarantee Corporation (PBGC), which of the following statements is true? a. The PBGC is an agency that insures unidentified pension plans b. The PBGC is an agency that insures defined contribution pension plans c. The PBGC's find is running out of money, due to the increase in the failure of the pension plans it insures d. The PBGC has run out of money and has been disbanded

c

1. The duty to bargain in good faith: a. Requires both employers and unions to eventually reach agreement in their negotiations b. Requires that any issue raised by either the employer or union must be negotiated c. Requires that employers supply unions with information relevant and necessary to bargaining effectively d. Requires that unions supply their members with the ability to be part of the impartial bargaining team

c

1. Which of the following is an unfair labor practice (ULP) under the National Labor Relations Act? a. Discriminating against an employee based on her race b. Violating the terms of a labor agreement c. Retaliating against an employee who has filed charges with the NLRB d. After an agreement has expired and while the new one is being negotiated, locking out employees willing to continue working

c

1.) In responding to requests for reasonable accommodation, employers should NOT: a. Engage in an interactive process with disabled employees b. Limit medical inquiries to information needed to assess functional limitations c. Discuss the disabled employee's need for accommodation with other employees d. Continue an ongoing dialogue with the employee about reasonable accommodation needs

c

1.) Which of the following is necessary of a sexual harassment claim? a. The harasser intended to inflict emotional distress and embarrassment on the victim b. The sex of the harasser differed from the sex of the victim c. The harassment was unwelcome The harasser made a sexual advance or requested a sexual favor

c

Regarding discrimination against caregivers which is not true a. Sex stereotyping against them is a common form of discrimination b. The eeoc has highlighted the issue of discrimination against them c. Caregiver is protected class under EEOC d. Disparate treatment is the most common form of discrimination against caregivers

c

Under the "payroll method" how do we calculate

counted for each full week from hired to fired

1. A non-exempt employee's usual pay is $800/wk based on a 40/hr week. This week he works 50/hrs. His regular hourly rate of pay is ____. His total pay for this week should be ____. a. $800/wk; $800 b. $16/hr; $1100 c. $20/hr; $1000 d. $20/hr; $1100

d

1. An employee is terminated for poor attendance. The employer sends a letter on May 1 notifying him of his rights to receive continuation health insurance coverage. The letter states that the former employee must respond by May 30 to be eligible for up to 6 months of continuation coverage. The employer's letter: a. Accurately states the former employee's rights under COBRA b. Should state that the employee has 45 days to decide on coverage that would last up to 3 years c. Should state that the employee has 60 days to decide on coverage that would last up to 1 year d. Should state that the employee has 60 days to decide on coverage that would last up to 18 months

d

1. In DirecTV v. NLRB, 26 service technicians were fired after appearing on a television news show to complain about their employer's instructions about how to persuade customers to install phone connections for their satellite television service, and the charge-backs to employees' pay if they did not procure such connections. Phone connections were not necessary for the service to work, but the company earned more money if phone connections were installed. Regarding the terminations, the court ruled: a. For the employer, since it is not a protected concerted activity for an employee to make disparaging remarks to 3rd parties, since it shows disloyalty b. For the employer, because its business policies were within its discretion c. For the employees, because they did not speak despairingly about their employer d. For the employees, because they although they spoke disparagingly about their employer, it was substantially truthful and concerned an ongoing labor dispute

d

1. In R. Williams Construction Co. v OSHRC, a trench collapsed at a construction site, killing one worker, and severely injuring another. A hydraulic jack supporting the wall had been removed, and the walls of the trench were not sloped, as required by OSHA regulations. The construction firm argued that, although it did not know what the OSHA requirements were, its employees had much work experience and common sense, and they talked about safety "all the time." The OSHRC ruled: a. For the employer, because of the several years of experience of its workers b. For the employer, because the employees frequently talked about safety c. For the workers, because there was a death and a serious injury d. For the workers, because OSHA regulations applied, and it is not a defense that the firm did not know about OSHA regulations

d

1. Which of the following is true regarding overtime pay under the Fair Labor Standards Act? a. Employees who work more than 8 hours in a work day must be compensated with overtime pay b. Employees are entitled to twice their regular rate of pay for overtime hours c. Private sector employers can pay for overtime required under the FLSA with compensatory time off in the future, whereas government agencies may not do so d. Government agencies can pay for overtime required under the FLSA with compensatory time off in the future, whereas private employers may not do so

d

1. Which of the following torts has as a required element of proof, an intent to harm a. Intrusion upon seclusion b. Public disclosure of private facts c. Placement in a false light d. Intentional infliction of emotional distress

d

1.) A male customer of a sports bar has taken a particular liking to one of the waitresses, and always asks to be seated at her station, so that she will wait on him. He has spoken to the manager of the bar, and generously tipped him to ensure that he will get her station. But the waitress does not want to wait on the customer, because he grabs and pinches her rear, tries to tuck money down her top, and frequently pulls her down onto his lap. She asks the bar not to let him sit at her station anymore, but the manager harassment, what will the court most likely rule? a. For the employer, because the customer does not have the power to affect her employment status, so that his conduct cannot result in a tangible employment action against her b. For the employer, because the customer has not committed harassment c. For the employee, because the customer has committed harassment d. For the employee, because the customer has committed harassment, the employer knew about it, and did nothing

d

1.) An employee who had taken periods of FMLA leave over a two-year period was terminated for poor attendance because of those absences. She brings suit under the FMLA. What should the court rule? a. The employer did not violate the FMLA because the employee was granted leave b. The employer did not violate the FMLA because she was terminated for her absences and not for having requested or taken FMLA leave c. The employer violated the FMLA because all employees become eligible for up to 12 weeks of leave at the start of each new calendar year; "rolling" calendars are illegal d. The employer violated the FMLA because the employee was terminated based on absences that qualified as FMLA leave

d

1.) Under Title VII, the concept of "religion" is: a. Limited to membership in or affiliation with an established church or denomination b. Applicable to beliefs or practices that a church or denomination requires its members c. Applicable to beliefs or practices centering on the worship of a God or other deity d. Broadly interpreted

d

1.) Which of the following is necessary to establish the existence of a disability under the ADA? a. Having a physical basis for one's impairment b. Believing you have an impairment that is included on the ADA's list of recognized disabilities c. Receiving regular medical treatment for one's condition d. Having a physical or mental disability which affects at least one major life activity

d

Which is not considered a sex plus issue? a. Hiring women only after they have gone through menopause b. Requiring men but not women over 40 to have annual physicals c. Hiring male but not female newlyweds d. Asking men and women about childcare arrangements during a pre-employment interview

d

Regarding the legality of drug testing

drug testing will usually be upheld, but random testing procedures are the most susceptible to challenge

Distinguishing between employees and independent contractors is important because

employees can defend incompetence with laws

Regarding criminal background checks

employers should consider the seriousness, recency, and job-relatedness of convictions before denying employment on that basis

Under US employment laws employees must have the right to

expect their employers to comply with employment laws

In EEOC v Autozone the court ruled:

for the plaintiff because consistent with damages awarded in other cases

Under economics realities test

if the hired party provides own tools and materials then independent contractor

Negligent hiring

makes employers liable for harm that occurs when employees who were not properly screened act outside the scope of their employment

When determining which employment laws apply to a certain employer, what must be considered?

number of employees states which the employer operates in selling goods or services to fed gov

If a worker is an employee the employer must

pay the employers share of SS and Medicare

What does common law test focus on?

right of control

what is a defense to defamation against an employer?

the employee gave his consent to make the statement

An employer might be liable for the actions of an employee outside the scope if

the employer was negligent or reckless in allowing behavior to occur

Harrison v Benchmark the court ruled

the firm had a legal right to ask questions about drug use, but not to inquire about disability pre-employment