U.S. Employment Law and Regulations

The modification of the Constitution or a law. This modification may alter the actual text of the Constitution or law. But even if the text is not changed, it can change its effect.

Amendment

a landmark civil rights law protecting qualified individuals with disabilities from discrimination in many areas.

Americans with Disabilities Act (ADA) of 1990

Fiduciary duties

An ERISA plan must be operated for the exclusive benefit of the participants and their beneficiaries. The plan fiduciaries must follow the prudent person rule with respect to the handling, investment, and management of the plan's assets. According to this rule, the fiduciary cannot take more risks than a prudent expert investor would under similar circumstances.

How many months can COBRA coverage continue for Termination of employment for any reason other than gross misconduct?

18

How many months can COBRA coverage continue for reduction in hours?

18

what is the maximum length of time COBRA coverage can be continued?

18 or 36 months, sometimes longer determined by the type of qualifying event

How many months can COBRA coverage continue for an Employee is disabled at the time of reduction in hours or termination (if required notice is provided to plan administrator in timely manner)?

29

How many months can COBRA coverage continue for a divorce or death of the employed spouse?

36

How many months can COBRA coverage continue if a dependent child loses eligibility status?

36

Example: Assume that an organization interviewed the following people for factory assembly positions: Group Number Interviewed Number Hired Males 40 20 Females 30 6 To determine adverse impact: Identify the selection rate (the percentage hired) for each group. The male selection rate is 50% (20 ÷ 40 = 50%). The female selection rate is 20% (6 ÷ 30 = 20%). Identify the group with the highest selection rate (males at 50%). This is the majority group. Divide the lowest selection rate (minority group) by the highest selection rate (majority group). 20 ÷ 50 = 40%

80% Rule

Targeted or selective selection to fulfill an affirmative action plan can be a "consideration" in the otherwise antidiscrimination approach of the legislation within the Civil Rights Act of 1964, although for decades such practices have given rise to "reverse" discrimination cases in state and federal courts, including the U.S. Supreme Court.

Affirmative action plans

The act prohibits discrimination in every aspect of employment against employees and applicants age 40 and over, with a few limited exceptions to recognize that advanced age may, in some circumstances, affect an individual's ability to perform certain jobs effectively.

Age Discrimination in Employment Act (ADEA)

overnight travel

An employee who travels away from home overnight is not working when he or she is a passenger on an airplane, train, boat, bus, or automobile outside of regular work hours. Any time that the employee spends traveling as a passenger on a weekend will be counted as work time if the travel cuts across the hours that the employee would normally work during the week. Any time that an employee spends working while a passenger must be counted and paid as work time.

the time spent at a conference, meeting, or seminar does not have to be compensated if four conditions are met:

Attendance is voluntary. Attendance is outside of the employee's regular work hours. The event is not directly job-related. The employee performs no productive work during this period.

A proposal presented to a legislative body for possible enactment as a statute.

Bill

If religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to carrying out a particular job function in the normal operations of the organization, the factors may be used in employment practices. Race can never be a BFOQ.

Bona fide occupational qualification (BFOQ)

amended Title VII and gave the EEOC authority to "back up" its administrative findings and conduct its own enforcement litigation.

Equal Employment Opportunity Act of 1972

refers to the primary job duties that a qualified individual must be able to perform, either with or without accommodation

Essential functions

The Pension Benefit Guaranty Corporation (PBGC)

ensures payment of certain pension plan benefits in the event that a private-sector defined benefit pension plan lacks sufficient funds to pay the promised benefits. Covered plans or their sponsors are required to pay premiums to the PBGC. In turn, the PBGC guarantees payment of vested benefits (up to a maximum limit) to employees covered by these pension plans. It does not insure retirement plans that do not promise specific benefit amounts—defined contribution plans such as profit-sharing or 401(k) plans.

refers to the country—including those that no longer exist—of one's birth or of one's ancestors' birth.

national origin

the denial of equal employment opportunity because of an individual's, or his or her ancestors', place of origin or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.

national origin discrimination

guaranteed minimum wage and overtime protection under the FLSA, and employees compensated on an hourly basis are automatically considered nonexempt under the law.

nonexempt employees

Facts that show the parties' type of relationship Examples: Written contracts describing the relationship the parties intended to create Whether the organization provides the worker with employee-type benefits, such as insurance, a pension plan, or vacation or sick pay The permanency of the relationship The extent to which services performed by the worker are a key aspect of the regular business of the organization

relationship of the parties

Patient Protection and Affordable Care Act (PPACA) 2010

requires group health plans to provide coverage to dependent children up to age 26, regardless of whether the adult child is a tax dependent, has any financial relationship with the participant, resides with the participant, is a student, or meets any other requirement of a relationship other than that of a son, daughter, stepchild, or adopted or foster child of the participant. requires employers with more than 50 full-time employees to offer minimum essential health coverage that meets minimum benefit specifications or pay a penalty of $2,000 per full-time employee per year.

the general term applied to individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles.

transgender

out-of-town travel during the course of a day

travel out of town may also comprise work. When an employee who normally works at one location is sent out of town on a single-day trip, the time spent traveling is work time. However, the employer may consider the time spent traveling to and from the airport or other transportation terminal in the morning and evening to be the equivalent of the home-to-work commute and not compensable work time.

a legal doctrine under which a party can be held liable for the wrongful actions of another party. Because of this doctrine, employers are legally responsible for the discriminatory acts of their supervisors and managers and may be for their nonsupervisory employees as well.

vicarious liability

When does COBRA coverage generally end?

when the employee or dependent ceases paying premiums, becomes eligible for medical insurance from a new employer, or gains Medicare coverage after electing COBRA coverage or when the employer terminates its health-care plan (e.g., goes out of business).

SOX creaated ERISA Section 101(i)

which requires administrators of 401(k) and other defined contribution plans to provide notice to affected participants and beneficiaries at least 30 days, but not more than 60 days, in advance of a blackout period. prohibits directors or executive officers of public companies from engaging in trading that involves company stock held outside of the plan during the blackout period if the blackout period prevents at least 50% of the plan participants from engaging in transactions involving company stock held in their plan accounts.

When must an employee make COBRA elections?

within 60 days of the date that he or she loses coverage or the date that he or she was notified of the right to elect COBRA coverage (whichever is later).

An employer may be able to defend a practice that has a disparate impact on a class of people but is job-related and required by business necessity.

work-related requirements

any fixed, recurring period of 168 consecutive hours (7 days times 24 hours = 168 hours).

workweek

amended Title VII to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions; it requires employers to treat pregnancy the same as any other temporary disability. Employers must provide access to medical benefits and sick leave on the same basis as such benefits are provided to other employees or for other conditions.

Pregnancy Discrimination Act (PDA) of 1978

Time leading up to trial date and actual trial proceedings

Pretrial and trial

Vesting

Process by which a retirement benefit becomes non-forfeitable, that is, when the employee is permanently entitled to a portion or all of his or her benefit

Annual benefit limits

Prohibits annual limits on essential health benefits.

The 30-day minimum, 60-day maximum blackout notice must be in writing and must be stated in a way that the average plan participant can understand. Electronic notification is permitted if the notice is "reasonably accessible" to participants. The notice must include:

Reasons for the blackout period. Identification of the investments and participant rights that are affected. Expected beginning date and length of the blackout period. Statement that individuals should evaluate the appropriateness of their current investment decisions in light of their inability to direct or diversify their accounts during the blackout period.

Under the PDA, it is unlawful to:

Refuse to hire a woman simply because she is pregnant. Fire a woman simply because she is pregnant. Force a pregnant employee to leave work if she is ready, willing, and able to perform her job. Stop the accrued seniority of an employee who has taken a leave to give birth or have an abortion (unless seniority does not accrue to other temporarily disabled workers under similar circumstances).

A rule or order issued by an administrative agency; usually has the force of law. Interpretive bulletins distributed by administrative agencies are helpful in deciphering regulatory developments.

Regulation

proposed, adopted, and enforced by administrative agencies to whom government units have delegated specific rule-making authority. reflect how laws will be implemented and often have the force of law; they may have just as profound an effect on organizations as laws.

Regulations

Dependent coverage

Requires coverage of employees' adult children until age 26.

Notice of material modifications

Requires employers to provide a notice of material changes to the Summary of Benefits and Coverage effective other than as of the beginning of the plan year at least 60 days in advance of the effective date of change.

Uniform explanation of coverage

Requires employers to provide participants and plan beneficiaries a summary of benefits and coverage (not to exceed four pages) prior to enrollment, reenrollment, or prior delivery of the certificate of coverage.

refer to actions passed by legislative bodies, such as Congress and state legislatures, and by local government units, such as cities and counties.

Statutes

Generally, in order for an employee to be exempt, three requirements must be met

(1) minimum salary, (2) paid on a salary basis (without improper deductions), and (3) primary duties.

How many months can COBRA coverage continue for termination of employment for gross misconduct?

0

Improper deductions and safe harbor

A safe-harbor provision prevents an employer from losing an overtime exemption for improper pay deductions—regardless of the reason for the improper deductions—where the employer: Has a "clearly communicated policy" that prohibits improper pay deductions and includes a complaint mechanism. Reimburses employees for any improper deductions. Makes a good-faith effort to comply in the future.

An employer can defend its pay disparity by showing that the pay disparity was based on:

A seniority system. A merit system. A difference in the quality or quantity of work. Geographic work differentials. Any factor other than sex.

Penalties

An employer who violates the FLSA's requirements to pay overtime is liable to an employee in the amount of the unpaid overtime compensation as well as an additional, equal amount as liquidated damages.

Responsive pleading filed with court that either admits or denies complaint allegations and raises affirmative defense or seeks dismissal of complaint.

Answering complaint

the cornerstone of federal anti-discrimination legislation. U.S. legislation was the nation's first comprehensive federal law making it unlawful to discriminate in employment on the basis of race, color, religion, sex, or national origin.

Civil Rights Act of 1964

jury trials are allowed in cases where the plaintiff seeks compensatory or punitive damages.

Civil Rights Act of 1991

commuting time

Commuting time is not paid work time, even when the employee is using an organization vehicle. However, nonexempt employees who drive vehicles that contain essential tools or equipment of the employer from their homes to work sites may be working while traveling and should receive travel pay. Travel from home to a customer's site in response to an emergency call after the regular workday is work time.

How can HR secure appropriate legal advice and expertise and adopt preventative legal strategies?

Consult with the organization's attorney to prepare for complaints & deliver training related to litigation responsibilities

State health marketplaces

Creates state-run health-care marketplaces allowing both individuals and employers the ability to purchase standardized plan designs for health coverage.

Period during which each party learns the facts about other side's case; generally quite time-consuming (may go on for months)

Discovery process

type of liability insurance covering an organization against claims by employees, former employees, and employment candidates alleging that their legal rights in the employment relationship have been violated.

Employment practices liability insurance (EPLI)

Eligibility Requirements

ERISA establishes minimum eligibility requirements for retirement plan benefits. In general, the minimum requirements are attainment of age 21 and completion of 12 months of service, with only a few exceptions. An employer cannot set the age for plan participation at more than 21 or the service requirement at more than 12 months. However, an employer can lower the age and service requirement thresholds.

Vesting requirements

ERISA establishes minimum vesting requirements for retirement plans.

communication requirements

ERISA requires retirement and benefit plan administrators to prepare and distribute summary plan descriptions (SPDs) to participants.

Preexisting conditions

Eliminates all preexisting condition limitations for all participants and beneficiaries.

Lifetime maximum benefit limits

Eliminates lifetime maximum benefit limits on essential health benefits. *

barred plans from ceasing or reducing retirement benefit accruals and/or contributions for employees who work past normal retirement age.

Employee Retirement Income Security Act (ERISA)

Which two areas does the Older Workers Benefit Protection Act (OWBPA) of 1990 prohibit discrimination?

Employee benefits and waivers of claims

workday travel

Employees who travel in the course of a workday, such as from one work location to another, are entitled to compensation for their travel time. Travel to work-related meetings is compensable.

Employer's must allow covered employees and their covered dependents to continue their group health coverage in the event such coverage would end due to termination of employment, divorce, death of the employee, etc.

Employers who provide health-care benefits to their employees and who employed an average of 20 or more people in the prior calendar year

The Equal Opportunity Act of 1972

Expanded Title VII coverage to include educational institutions, state and local governments, federal executive agencies, and defined units of the other branches. Reduced the number of employees needed for a private employer to be covered by the act (from 25 to 15). Expanded the period of time charging parties have to file their charges with the commission (180 or 300 days rather than 90 or 210 days). Expanded the period of time charging parties have (90 days rather than 30 days) to file a lawsuit after the EEOC has informed them that it is no longer working on their charge (allowing charging parties a better chance to find a lawyer if they wish to pursue their charges in court).

Facts that show whether the organization has a right to control the business aspects of the worker's job Examples: The extent to which the worker has unreimbursed business expenses The extent of the worker's investment The extent to which the worker makes services available to the relevant market How the organization pays the worker The extent to which the worker can realize a profit or loss

Financial control

two U.S. Supreme Court rulings distinguishing between supervisor harassment that results in tangible employment action (such as discharge, failure to promote, or demotion) and supervisor harassment that does not. When harassment results in a tangible adverse employment action, the employer is always liable.

Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998)

The FMLA allows employees to take up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period in the following cases:

For incapacity due to pregnancy, prenatal medical care, or childbirth To care for the employee's child after birth or placement for adoption or foster care To care for the employee's immediate family member (e.g., spouse, child, or parent) who has a serious health condition For a serious health condition that makes the employee unable to perform his or her job To care for any next of kin who is a covered service member with a service-related illness or injury (military caregiver leave) To attend to obligations that arise as a result of an immediate family member's call to or return from covered military service (exigency leave)

Preventive care

For nongrandfathered plans only. Provides first-dollar coverage (with no deductible or employee payment co-shares) for certain preventive care services. **

set the standard for determining whether discrimination based on disparate impact exists. When an employer establishes an employment practice (such as an education requirement or a test score), the employer must be able to justify its actions as being job-related and consistent with a business necessity. Practices, procedures, or tests that appear neutral on their face, and even neutral in their intent, and that result in a discriminatory effect on a protected class without the above justification are illegal. Duke Power historically discriminated against blacks, relegating them to employment in low-level positions and departments. When Duke finally dropped these overt discriminatory practices, they adopted "seemingly neutral" education and test score requirements. Griggs's job application was denied, based on the fact that he was not a high-school graduate and on the results of two preemployment tests that were also requirements of the job. Griggs claimed that these job requirements were discriminatory because they did not relate to job success and had a negative impact on protected classes. Griggs's position prevailed, and the following two critical points were established. Employment discrimination need not be overt or intentional to be unlawful. Employment practices can be unlawful even when applied to all employees.

Griggs v. Duke Power (1971)

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 made the following changes to COBRA:

HIPAA clarifies that all related qualified beneficiaries eligible for COBRA because of the same 18-month qualifying event are entitled to purchase the additional 11 months of continuation coverage—for a total of 29 months—if any one of the qualified beneficiaries is disabled at the time of termination or at any time during the first 60 days of COBRA coverage. The rule that COBRA coverage could not be terminated if the qualified beneficiary obtained other coverage with a pre-existing condition was modified to allow termination of COBRA coverage if the qualified beneficiary is not subject to the pre-existing condition because of HIPAA's creditable coverage rule. The definition of qualified beneficiary was changed to include children born to or placed for adoption with a covered employee while COBRA continuation coverage is in effect.

The basic definition of disability contained in the ADA considers an individual disabled if he or she

Has an impairment that substantially limits one or more major life activities. Has a record of such an impairment. Is regarded as having such an impairment.

To be "qualified" under the ADA, an individual must:

Have the requisite skills, experience, education, licenses, etc. Be able to perform the essential functions of the job, either with or without reasonable accommodation.

The following are some critical tests for an independent contractor:

Having the ability to set own hours and determine sequence of work Working by the project rather than having a continuous relationship with the employer Being paid by the job (rather than by the hour or pay period) Having the opportunity for profit and loss Furnishing own tools and training Being self-employed and holding oneself out as such

reporting requirements

In general, an annual report (Form 5500) must be filed with the IRS and made available for participants to inspect. Filing Form 5500 is required all qualified retirement plans and for welfare benefit plans that have at least 100 employees participating.

Compensatory time as it applies to overtime.

In general, overtime must be paid in the form of wages. Presently, compensatory time is not allowed for nonexempt employees in the private sector, which includes those organizations not controlled by the government, such as privately owned businesses and not-for-profit organizations.

Title I of the ADA covers:

Medical examinations and inquiries & Drug and alcohol abuse

Title VII applies to

Most private employers and state and local governments that have 15 or more employees. Educational institutions. Federal government agencies. Public and private employment agencies. Labor unions with 15 or more members. Joint (labor-management) committees for apprenticeships and training.

Request from one side for judge to end the proceedings

Motion to dismiss

What must employees do first to file a discrimination lawsuit under Title VII?

Must first file a timely charge of discrimination with the EEOC in order to preserve their right to sue

not excluded from minimum wage pay requirements and are entitled to overtime pay.

Nonexempt employees

Notification of complaint in one of two ways: Delivery by sheriff or other process server Mail by plaintiff's attorney along with "Waiver of Service of Process" form

Notification

What is the patient protection and affordable care act (PPACA) commonly called?

Obamacare, since the federal legislation was signed into law by Barack Obama

Exempt Employees versus Nonexempt Employees

Once the employer has determined that a worker is an employee and is covered by the FLSA, the next step is to determine if the employee is exempt or nonexempt as defined by the FLSA.

"Cadillac plan" tax

Places an excise tax on "high value" health plans—where the value of family coverage and coverage for retirees and employees in high-risk jobs exceeds specified limits (to be indexed annually).This will take effect for tax years beginning after December 31, 2022.

Small employer health-care tax credit

Provides a tax credit (up to 35% of employer's cost for group health-care premiums) for qualifying small employers.

The time allowed for the public to express its views and concerns regarding an action of an administrative agency.

Public comment period

Which two categories does sexual harassment claims fall into?

Quid pro quo and hostile environment

Meeting(s) of attorneys for both sides and judge to establish dates for getting case to trial as well as actual trial date

Scheduling conferences

How many days must employees be given to revoke the agreement after signing it (individual and group terminations)?

Seven days

he classification of people as male or female; it refers to the biological and physiological characteristics that define men and women (or boys and girls)

Sex

What are the steps to identifying a reasonable accommodation?

Step 1 - individual asks for accommodation or employer knows of the need for an accommodation Step 2 - identify the barriers to performance of essential job functions for the individual Step 3 - identify possible accommodations that might be helpful in overcoming the barriers Step 4 - Assess the reasonableness of the accommodations, including whether they are the employer's responsibility and whether they impose an undue leadership Step 5 - choose the appropriate accommodation for the individual

Motion prepared at discretion of legal counsel requesting court to dismiss case without a trial; granted only if there are no material facts in dispute

Summary judgment

covers all state and local governments, private employers with 20 or more employees, unions with 25 or more members, employment agencies, and apprenticeship and training programs. It is enforced by the EEOC.

The Age Discrimination in Employment Act (ADEA)

The highest law in the country and the foundation on which all U.S. law has been built. Defines the powers of the different federal government branches (executive, legislative, judicial) and how these entities operate and interrelate. Also provides basic principles, such as fundamental freedoms and rights.

The Constitution

The FLSA covers the following organizations regardless of the dollar volume of their businesses:

The FLSA covers the following organizations regardless of the dollar volume of their businesses: Hospitals Institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises Schools for children who are mentally or physically disabled or gifted Preschools, elementary and secondary schools, and institutions of higher education Federal, state, and local government agencies Under certain circumstances, the FLSA may also cover domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters.

Minimum wage.

The FLSA requires employers to pay covered nonexempt employees at least the federal minimum wage for all hours worked up to 40 in a workweek.

Time worked as it applies to overtime

The FLSA requires that overtime be paid on time worked, not time compensated.

Child labor provisions

The FLSA restricts the hours and conditions of employment for minors and protects children under 18 years of age from "oppressive" employment conditions. Employers should obtain an employment and/or age certificate approved by the Wage and Hour Division of the DOL (the enforcing agency); this certificate is usually issued by the appropriate state agency or the minor's school. Child labor provisions under FLSA are designed to protect the educational opportunities of youth and prohibit their employment in jobs that are detrimental to their health or physical and mental safety. The FLSA restricts the hours that minors can work and lists hazardous occupations too dangerous for young workers to perform.

establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full- and part-time workers in the private sector and in federal, state, and local governments. commonly referred to as the Wage and Hour Law (also known as the Wagner-Connery Wages and Hours Act). It was designed to protect workers and address conditions that burdened the American economy during the Great Depression and has been amended over the decades. applies to public and private employers with at least $500,000 in annual dollar volume of business (with some limited exceptions). It also applies to organizations with employees who engage in interstate commerce or the production of goods for interstate commerce.

The Fair Labor Standards Act (FLSA) of 1938

prohibits age discrimination in the provision of benefits such as life insurance, health insurance, disability benefits, pensions, and retirement benefits.

The OWBPA (Older Workers Benefit Protection Act)

are not in and of themselves law; they are a procedural document that is published in several places in the Code of Federal Regulations (including 29 CFR Part 1607 and 41 CFR Part 60-3) to assist employers in complying with Title VII, Executive Order 11246, and other equal employment opportunity requirements of federal law. outline the requirements necessary for employers to legally defend employment decisions based upon overall selection processes and specific selection procedures.

The Uniform Guidelines

The Family and Medical Leave Act (FMLA)of 1993

The act covers private-sector employers with 50 or more employees (full- or part-time) for 20 or more workweeks in the current or preceding calendar year. It applies not only to private employers but also to nonprofit organizations and public agencies (regardless of the number of employees), including Congress. To be eligible for FMLA leave, an employee must have worked at least 12 months (total) for the employer, for at least 1,250 hours in the 12-month period preceding the commencement of the leave, and at a site within 75 miles of which 50 or more employees work.

passed to bring about equality in hiring, transfers, promotions, compensation, access to training, and other employment-related decisions.

Title VII of the Civil Rights Act

The core wage and hour regulations have several purposes:

To set a minimum wage for certain workers To regulate the number of hours certain individuals must work before being entitled to overtime compensation To restrict the hours and conditions of employment for minors

The implications of the U.S. Supreme Court decisions are that in order to reduce liability for harassment claims, a company should:

Train both employees and managers on a regular basis. Oblige employees to report any incidents of harassment. Investigate reported allegations promptly and thoroughly. Implement corrective measures when necessary.

a general rule is

Whenever state and federal laws or regulations differ, follow that which most benefits the employee.

What does the OWBPA make it unlawful for an employer to do?

Use an employee's age as the basis for discrimination in benefits. Target older workers for staff-cutting programs. Require older workers to waive their rights without observing certain safeguards.

Action of rejecting a bill or statute.

Veto

Harassment becomes unlawful in the following situations according to the EEOC

When enduring offensive conduct becomes a condition of continued employment When the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive When an individual is harassed in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit

Administrative agencies may also issue guidelines that interpret how laws and regulations will be enforced. Such agency guidance includes agency interpretations, policy statements, letters, and advisory materials to supplement or explain regulations and statutes. Agency guidelines can greatly influence how organizations operate.

agency guidelines

Portal-to-Portal Act of 1947

amended the FLSA and defined additional rules for hours worked If the employer restricts an employee's activities and does not allow any personal business, then the hours are included as time worked, including overtime. Employers may not be required to pay wages or overtime when an employee is off the premises and on call (asked to stay by the phone or computer, carry a mobile device, or respond to a beeper) as long as the employee generally is not otherwise restricted.

investigating claims

any employee covered by the FLSA may initiate a complaint. An investigator may visit the work site of the claimed infraction and review the employer's pay practices and status determinations. A conference between the investigator and representatives of the employer may be held to discuss a settlement if a violation is found. If none is agreed to, the employer can be taken to court by either the secretary of labor or the employees who are owed unpaid back wages. Unlike claims of unlawful discrimination, an employee may file a FLSA-related lawsuit directly without first exhausting administrative remedies from the DOL.

Phillips v. Martin Marietta Corporation (1971)

as one of the first cases to apply the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 to employment decisions. An employer may not, in the absence of business necessity, refuse to hire women with preschool-aged children while hiring men with such children. Phillips applied for a job with Martin Marietta but was informed that the company did not hire women with preschool-aged children. The U.S. Supreme Court ruled unanimously, however, that it is contrary to Title VII for a company to refuse to hire a woman because she has preschool-aged children when it does not impose a similar restriction on hiring men, even where there is no demonstration of discrimination against women overall.

Facts that show whether the organization has a right to direct and control how the worker does the task for which the worker is hired; include type and degree Examples: Instructions the organization gives the worker Training the organization gives the worker

behavioral control

Stated another way: If one selection criterion is tainted, the selection process will not be found to be discriminatory if other criteria have offset it and the final results are somewhat reflective of the population in the area where the employer recruits.

bottom-line concept

specifies that federal enforcement agencies will not expect an employer to evaluate each component of the selection process individually if the total selection process does not have an adverse impact.

bottom-line concept

Who can file a claim of age discrimination under the ADEA?

by individuals who are 40 years of age or older who have been refused employment or who have been terminated or treated less favorably because of their age.

a concept the United States inherited from its British roots. based on court decisions, rather than statutory law, and is recognized on the federal level and in whole or in part in nearly all states. also the source of the concept of precedent, which states that once a court of sufficient authority decides what the law is in a particular circumstance, subsequent courts dealing with similar cases must apply that principle of law.

common law

Title VII prohibits discrimination in compensation practices.

compensation

Uniform Guidelines on Employee Selection Procedures ("Uniform Guidelines")

cover all aspects of the selection process, including recruiting, testing, interviewing, and performance appraisals (to the extent that they are used to make employment decisions).

comparable worth

deals with pay differentials between women and men who perform comparable—but not equal—work. Comparable worth looks at different jobs that women and men hold that require comparable skills, effort, responsibility, and working conditions. Although the EPA does not require consideration of comparable worth, some states require all public jurisdictions such as school districts to eliminate any sex-based wage inequities.

Blue-collar workers

defined as those who perform work involving repetitive operations with their hands, physical skill, and energy. The DOL has stated that individuals in these positions will not be exempt no matter how highly they are compensated.

indirect discrimination, unequal consequences or results, usually unintentional, neutral actions, same standards but different consequences

disparate impact

results when a policy that appears to be neutral has a discriminatory effect.

disparate impact (or adverse impact)

direct discrimination, unequal treatment, intentional, prejudiced actions, different standards

disparate treatment

discrimination occurs when an applicant or employee is treated differently because of his or her membership in a protected class.

disparate treatment

What are the two types of discrimination?

disparate treatment and disparate impact

The Sarbanes-Oxley Act (SOX) of 2002

enacted in response to Enron and other corporate accounting scandals. The act requires that all publicly held companies establish internal controls and procedures for financial reporting to reduce the possibility of corporate fraud. The act also has serious implications for human resource professionals.

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

enacted to protect the employment, reemployment, and retention rights of persons who voluntarily or involuntarily serve or have served in the uniformed services

The Employee Retirement Income Security Act (ERISA) of 1974

establish uniform minimum standards to ensure that employee retirement plans are set up and maintained in a fair and financially sound manner. ERISA is designed to protect the interests of participants in pension and welfare benefit plans and their beneficiaries. Employers are not required to offer a retirement or welfare benefit plan, but if they do have one, the plan must conform to the applicable requirements of the Internal Revenue Code and ERISA in order for employers and participating employees to receive available tax advantages.

a directive by the chief executive of a governmental unit (e.g., the president of the United States) telling that governmental unit how it will act or interact with members of its community. they have a direct impact on any individual or entity interacting with the governmental unit

executive order

excluded from the minimum wage and overtime pay requirements of the law

exempt employees

must meet certain salary thresholds and descriptions of primary duties.

exempt employees

ERISA requires that employers comply with a number of requirements in operating their plans such as

fiduciary duties, eligibility requirements, vesting requirements, communication requirements,

refers to the socially constructed system that associates masculinity or femininity with certain roles, behaviors, activities, and attributes.

gender

refers to one's internal, personal sense of being a man or a woman (or boy or girl), which may or may not be the same as one's sexual assignment at birth.

gender identity

Title VII prohibits sexual harassment and harassment based on the other protected categories.

harassment/hostile work environment

The Department of Labor (DOL)

has jurisdiction over reporting, disclosure, and fiduciary responsibility.

The IRS

has jurisdiction over tax-related matters involving benefit plans (e.g., funding and eligibility).

"primary duty"

he main or most important duty of the position.

occurs when sexual or other discriminatory conduct is so severe and pervasive that it unreasonably interferes with an individual's performance; creates an intimidating, threatening, or humiliating work environment; or perpetuates a situation that affects the employee's psychological well-being.

hostile environment harassment

offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.

offensive conduct

Medicaid

offers federal funding to states to assist pregnant women, children, low-income individuals, the blind, the elderly, and the disabled in obtaining medical care.

Title VII prohibits discrimination in several other terms, conditions, and privileges of employment. Thus, discrimination on the basis of a protected class may not be the basis for differences in benefits, work assignments, performance evaluations, training, discipline or discharge, or any other area of employment.

other terms, conditions, and privileges of employment

1.5 times their regular rate of pay for hours worked in excess of 40 in any workweek.

overtime pay

Lilly Ledbetter Fair Pay Act of 2009

overturned the Ledbetter 2007 U.S. Supreme Court decision.

people who are covered under a particular federal, state, or local anti-discrimination law

protected class

race, sex (including pregnancy), ethnicity, national origin, citizenship, religion, age, color, military/veteran status, genetic information, Family and Medical Leave entitlement, disability status, sexual orientation, gender identity, gender expression, and other factors

protected class

Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985

provides individuals and their dependents who otherwise would lose their coverage due to a COBRA qualifying event with an opportunity to continue receiving health-care coverage under the employer's group health plan at the individual's expense. COBRA qualified beneficiaries must pay the full premium for the coverage. In addition, the plan may elect to charge a qualified beneficiary a 2% administrative fee.

National Defense Authorization Act (NDAA)

provides up to 26 workweeks of unpaid FMLA leave during a single 12-month period for an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness.

"this for that" or "something for something."

quid pro quo

occurs when an employee is forced to choose between giving in to a superior's sexual demands and forfeiting a benefit.

quid pro quo harassment

involves treating someone (an applicant or employee) differently because he or she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). can involve treating someone differently because the person is married to (or associated with) a person of a certain race or color or because of a person's connection with a race-based organization or group or an organization or group that is generally associated with people of a certain color.

race/color discrimination

modifying or adjusting a job application process, a work environment, or the circumstances under which a job is usually performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions.

reasonable accommodation

includes basic pay plus nondiscretionary bonuses, shift premiums, production bonuses, and commissions.

regular rate of pay

Title VII is violated if employees who belong to a protected class are segregated by physically isolating them from other employees or from customer contact.

segregation and classification of employees

the sexual, romantic, or emotional/spiritual attraction that one feels for persons of the opposite sex or gender, the same sex or gender, or both sexes and more than one gender.

sexual orientation

Equal work factors

skills, effort, responsibility, and working conditions

Equal Pay Act (EPA) of 1963

technically an amendment to the FLSA, prohibits unequal pay for equal or "substantially equal" work performed by men and women. Once a pay disparity is established between a male worker and a female worker performing substantially equal jobs, the burden of proof shifts to the employer to justify its actions.

National Federation of Independent Business v. Sebelius (2012)

the U.S. Supreme Court considered two key PPACA provisions: Medicaid expansion and the individual mandate.

Ledbetter v. Goodyear Tire and Rubber Company (2007)

the U.S. Supreme Court ruled against Lilly Ledbetter's claims of sex discrimination in pay under Title VII. The court ruled that Ledbetter's claims were not timely because she did not file discrimination charges with the EEOC within the 180-day time frame, which is a prerequisite for bringing a discrimination lawsuit.

blackout periods

the outgoing record keeper or investment option manager completes final processing of participant activity and performs a final reconciliation of accounts. The new record keeper or investment option manager receives the data, loads it on its system, and checks it for accuracy. typically occurs when there is a new plan provider or a change in investment options may last between two and six weeks

includes a stage at which proposed regulations are released to the public for comment, allowing citizens and organizations to weigh in. The administrative agency will review and analyze comments before formally adopting a regulation.

the regulation process

Older workers may not waive rights under the ADEA unless?

they are given 21 days (in the case of an individual termination) or 45 days (in cases of group termination or voluntary retirement programs) to consider the agreement and consult an attorney.