WGU Employment Law - C233

an employee shows that a facially-neutral company policy has a negative effect on employees covered by the ADEA

"Age discrimination may also be established when _______________. The employer defense to disparate impact claims is that a reasonable factor other than age (RFOA) prompted the employment practice."

General Duty Clause

"To furnish to each of its employees...a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm." This is known as:

26

A 2008 FMLA amendment allows for a ___________-week period of leave for qualifying family members of veterans seriously injured in the line of duty.

Mandatory bargaining subject : permissive bargaining subject

A _________________ is generally one which concerns wages, benefits, hours, and layoff procedures. A _______________ is one which either party may bring to the table, but over which the other party is not required to bargain.

yellow dog contract

A document whereby, as a condition of employment, an employee agreed not to organize or join a union is known as a(n):

Federal injunction

A legal remedy that allows a court to order individuals to refrain from acts which will do "irreparable harm" is known as a:

Even if the practice did have a disparate impact on older employees, the employer could show that the practice was based on a RFOA

A nursing home decided to reduce costs by terminating its highest-paid and least-productive employees. To ensure that supervisors accurately assessed productivity and did not base evaluations on stereotypes, the employer instructed supervisors to evaluate productivity in light of objective factors such as the number of patients served, errors attributed to the employee, and patient outcomes. Which of the following is true of this example?

plant closing

A/An __________ is a single site of employment that is permanently or temporarily shut down for 6 months, or with a 50% reduction in hours over a 6-month period, and impacts 50 or more full-time employees for a 30-day period.

20%

Affirmative action applies to only about _______ of the workforce.

quotas

Affirmative action prohibits __________. No employer is ever required to hire an under qualified employee.

1. Reasonable self-analysis 2. Reasonable rationale for taking corrective action 3. Reasonable action

An AA plan must contain three basic requirements:

absent an undue hardship to the business

An employer has the duty to provide the employee with a reasonable accommodation, _______________.

Pattern and Practice Discrimination

An employer may claim that 50 percent of employees are non-white minorities or women. However, if the minority employees or women are concentrated in low paying positions, and all the white employees hold high paying managerial positions, this would be best described as:

Discriminatory intent

An employer's decision to take some adverse action against an applicant or employee based upon knowledge and consideration of a protected class characteristic which has little or nothing to do with whether a person can perform the essential functions of a job is known as __________.

essential : marginal

An employer, before advertising a job and beginning the process of external hiring or internal promotion, should create a job description which details the ______ and _______ functions of the job position.

Therefore, discrimination based upon English language fluency does not violate Title VII.

As with accents, an English fluency requirement may be essential to the effective performance of a particular job.

Federal contract of over $100,000 and work performed in the United States within the last 120 days

By 2009, the Department of Homeland Security started requiring covered contractors to enroll in E-Verify. What defines a covered contractor?

National security, under federal statute or Executive Order

Certain nationals may be discriminated against in employment in situations of:

1) used as an opportunity to eliminate older workers; 2) based upon subjective criteria; or 3) employed as a pretext to avoid ADEA concerns.

Courts will find a RIF plan discriminatory if downsizing is:

ERISA (Employee Retirement Income Security Act)

Designed to protect worker's interests in the regulation of benefits and encourage the careful employer management of retirement funds, Congress enacted:

disparate treatment

Disparate impact affects a particular class, while _______________ targets an individual.

180

Employees are entitled to any earned commissions, sick pay, seniority, pension, or health benefits accrued in the _______ days prior to a plant closing.

Promotions to management

Employees on leave for pregnancy-related issues must be treated the same as other workers on leave. Which of the following is not an example of this?

Tort liability

Employers are often hesitant to provide detailed references about former employees due to the risk of:

EPA - Equal Pay Act

Employers may not use gender as the basis for pay considerations on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. What protects this?

Age Discrimination in Employment Act

Employment policies made it difficult for older workers to retain employment and find new employment after termination. In response, Congress passed the:

Height and weight restrictions - gender/national origin Language requirements - national origin Physical strength tests - gender Educational requirements - race Dress codes - gender/religion No beard policies - gender/race/national origin/religion

Examples of facially neutral polices and protected classes impacted might include:

are all prohibited from discriminating on the basis of disability

Federal agencies, those receiving federal assistance, those in employment with the federal government, and federal contractors _______________.

1. The stated reason is not true 2. The stated reason is true, but was not a "motivating factor" 3. The reason was a factor, but not sufficient to justify the job action"

From the text, "Once the plaintiff proves these things, the burden then shifts to the employer to produce a lawful motive for the adverse employment action. Then the burden shifts back to the claimant to rebut the employer's justification, by showing:

the condition of being 40 years of age and older is not a disability

From the text, "Under the ADEA, there is no "reasonable accommodation" for age. Moreover, _______________."

What is group job analysis?

Grouping jobs within an organization by function, responsibilities, and potential, and then rendering an analysis on the characteristics of each employee in the job group

Pre-existing condition

HIPAA restricts employers' use of an employee's __________________________ to exclude coverage or charge more for medical benefits.

1 year

How long does the application Title VII continue after a firm has reached a critical mass of 15 employees?

Over 40

How old must an employee be to claim age discrimination under the ADEA?

Three : one

IRCA requires employers retain the Form I-9 in a file, separate from the standard personnel file, for a period of ________ year(s) after hire, or ________ year(s) after termination, whichever is longer.

eight

If E-Verify gives a tentative nonconfirmation response, how many days does the employee have to contact the appropriate federal agency?

Require a certain number of minorities be hired by a certain date

If a federal contractor is not following AA regulations, the Department of Labor can do all of the following except:

In their native language

If an English-only rule is adopted, an employer should ensure, by reasonable means, that non-English speaking employees are apprised of the rule:

Retalitory discharge

If an employee is terminated for claiming minimum wage or overtime compensation, engaging in union activities, opposing unlawful discriminatory practices, filing for workers' compensation, or "whistleblowing," the employer may face liability for a

Defamation

If an employer places some false information in the appraisal and that information is reported to a third party, an employee may have a claim of:

The employer is also discriminating

If an employer takes an action based on the discriminatory practices of clients or customers ____________:

McDonnell Douglas

If the employer produces a legitimate business reason for the job action, under the _________________ formula, the burden shifts back to the employee to demonstrate that the employer's proffered reason is pretextual.

impasse

If, after engaging in good faith discussions to resolve disputes, the parties cannot resolve one or more issues, they have reached a deadlock, commonly called a/an _________.

Equal Employment Opportunity Act

In 1972, Congress amended Title VII, by passing the _______________________ which give the EEOC authority to conduct its own enforcement litigation.

Pregnancy Discrimination Act (PDA)

In 1978, Congress enacted amendments to Title VII, known as the ________________. The _____ prohibits employment discrimination on the basis of pregnancy, childbirth, or related medical conditions.

The many factors which come into play in discrimination cases

In age discrimination, what is the meaning of a mixed motive?

An employer may not use the name, likeness, or image of an employee for commercial purposes in a way that is not contemplated by the actual job the employee holds

In an appropriation of likeness or image tort:

Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)

In an effort to empower union members and to reduce union elite corruption, Congress enacted the:

make reasonable accommodation

In cases where an employee's religious practice conflicts with a work assignment, Title VII requires that the employer:

ADEA waivers

In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called:

When a firm eliminates one or more positions as part of a strategic business plan to realign operations and/or reduce costs

In general employment terms, what is a reduction in force (RIF)?

The intrusion caused anguish and suffering

In order to establish a claim of intrusion upon seclusion at work, an employee must show there was: 1) unauthorized employer intrusion or prying into his or her seclusion; 2) the employer intrusion was highly offensive to a reasonable person; 3) the matter intruded upon was private; and:

It was impossible for HP to accommodate religiously-motivated expressions that violated its core human resource philosophy.

In the Hewlett-Packard Company case, an employee who objected to the firm's diversity policy posted anti-gay verses from the Bible at his desk. The court that ultimately heard that case found an undue hardship because:

The Supreme Court agreed that the AA method used by the university was unlawful, as it gave an unwarranted advantage to minority applicants.

In the Regents of the University of California v. Bakke (Bakke) case, a white medical school applicant challenged the University of California at Davis' policy of setting aside 16% of admission spots for "disadvantaged" minority applicants who could also compete in the standard applicant pool. Mr. Bakke was qualified to be admitted, and argued that the strict 16% standard was an impermissible quota and unfair. Which of the following is correct?

McDonnell Douglas, Corp. v. Green case

In the _______________, the U.S. Supreme court remanded the matter to the lower court to conduct a hearing under the prima facie standards it established.

Participating in joking and banter

In the race and color context, virtually all race-based conduct may be eventually considered unwelcome even if the claimant is:

Tort

Invasion by an employer into the private affairs of an employee may be the ______ of invasion of privacy.

Right-to-work laws

Laws that give workers the freedom to not join a union are known as:

2 years

Money awards may take the form of back pay for up to ________, for the time an employee was not working,

race : religion

Nation of origin employment discrimination is often linked to ________ and ____________ discrimination because those factors are closely associated with a specific country or ethnic group and often the same set of facts support the varied claims.

50,000

OFCCP regulations require that for contracts over $________, the contractor must prepare a written AA plan within 120 days of the contract start date.

Independent Contractor

Of the following classifications of worker, which causes the smallest obligation to the employer?

Integrated enterprise

Operations of two or more employers are considered so intertwined that they can be considered the single employer for purposes of both federal statutory coverage and liability. This is known as a(n):

Unions

Organizations that represent workers in bargaining with employers to improve conditions of employment are known as:

Contractors and subcontractors working with the federal government

President Johnson issued Executive Order 11246, which required that _________ have a nondiscrimination clause in contracts and abide by its terms.

Affirmative Action

President Kennedy in 1961 introduced the term ___________ for the concept of redressing the effects of persistent discriminatory employment practices in spite of civil rights laws and constitutional guarantees.

OFCCP

Regulation of Affirmative Action is overseen by:

Rehabilitation

Section 508 of the _____ Act requires federal information and technology platforms to be accessible to people with disabilities, including employees and the public.

Impairment : major life activity

The ADA did not initially define the terms _______ or _______. This created some difficulty for employers and courts alike in determining the parameters of the statute.

20

The ADEA applies to public and private employers and unions with more than _______ employees.

age stereotypes

The ADEA was designed to eliminate practices based upon the negative and unsupported _______________ of reduced performance and competence.

A civil rights watchdog organization

The American Civil Liberties Union is:

Sherman Anti-Trust Act

The Clayton Act prohibited the elimination of unions and expressly removed union organizing efforts from the "anti-combination" language in which act?

Traditional organized religions as well as new, informal, small, or personal religions

The Courts have found that "religion" includes:

RFOA

The EEOC states that an "employment practice is based on a _______ when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers."

the employer must give notice to an applicant

The FCRA provides that if an employer uses an investigative report - a much more in-depth search based on personal interviews concerning an applicant's character, general reputation, personal characteristics, and lifestyle - ____________________. This is so the applicant may request additional disclosures regarding the scope and substance of the investigative report.

50+

The Family Medical and Leave Act (FMLA) applies to all government and private employers with how many employees?

I-9 form

The IRCA requires that, within 3 operational business days of being hired, an employer must verify that a worker is eligible to work in the United States by viewing supporting original documentation, and completing __________ verification.

Relationship: How many hours per year do the employee and employer spend time together outside of work?

The IRS has adopted the 20-factor analysis as a guide to employers in determining if workers are indeed independent contractors. Which of the following is not a factor?

4

The Immigration Reform and Control Act prohibits employment discrimination on the basis of citizenship in firms with _____ or more employees.

to the extent that those state laws would conflict with federal law

The LMRDA does not displace state laws governing unions' relations with their members except _________________.

Department of Labor

The Office of Federal Contract Compliance Programs (OFCCP) within the _______________ oversees regulation of AA.

50 : $50,000

The Rehabilitation Act of 1973 requires that contractors, including subcontractors, with _______ or more employees and contracts valued at ________ or more must take "affirmative action to employ qualified individuals with disabilities.

Not in violation of the ADEA

The Supreme Court in Hazen Paper Co. v. Biggins held that a paper company's decision to terminate an employee because his pension was about to "vest" was:

age and seniority are "analytically distinct" from each other in the ADEA context

The Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604, held that _______________.

National Labor Relations Act (NLRA)

The _______ established the right of workers to form unions, collectively bargain, and strike.

the commission of a civil wrong which causes someone to suffer loss or harm resulting in legal liability. Invasion by an employer into the private affairs of an employee may be the tort of invasion of privacy

The common law definition of a tort is ______________________.

The employer may require the employee to see a company-paid physician to make an additional assessment if it has concerns about the validity of the certification provided.

The employee has a burden to provide the employer with health care provider certification that a serious health condition exists.

Explained deviations from policy

The factors examined to determine disparate treatment in a color and race discrimination case include all of the following except:

- race-related statements by decision-makers - comparative treatment evidence - unexplained deviations from policy - the decision-maker's race - statistical evidence.

The factors examined to determine disparate treatment in a color and race discrimination case include, but are not limited to:

$100,000

The federal Drug Free Workplace Act of 1988 requires federal contractors doing more than _____________ in business with the federal government to ensure a drug-free workplace through education and enforcement of drug-free policies.

80

The four-fifths rule provides that a screening device - test or other hiring criteria - will be discriminatory if the selection rate of a protected class is less than ____ percent of the majority.

1) the employee is the protected class; 2) the employee is qualified for the position; 3) the employee suffers some adverse employment action; and 4) a person of opposite gender received favorable employment action or the employer continues to look for applicants for the position.

The full list of elements for a prima facie case include:

The Immigration and Nationality Act of 1952

The fundamental source of United States immigration law is:

Not very much

The level of reasonable accommodation has been characterized by the courts as "de minimus," meaning

Similarly situated workers of the same gender, with small children, are treated more favorably

The prima facie case for gender plus discrimination based on family composition would not require the complaining workers to show which of the following?

$300,000

The risks to employers from sexual harassment claims is great, as plaintiffs may claim up to _____________ in compensatory damages, ask for punitive damages, and request jury trials.

Giggs vs Duke Power

The seminal case establishing the concept of disparate impact is:

but does not prevent him or her from making an age discrimination claim with the EEOC.

The so-called ADEA waiver prevents a retiree from personally suing under the ADEA, _______________

performance appraisals

The text states explicitly that there is no federal law requiring ______________ in employment.

1) the IRS 20-factor analysis; 2) the economic realities test; and, 3) the common law agency test.

There are three different tests commonly used to determine if a worker is an employee or independent contractor:

underutilization

There is no precise method for determining __________, but the Supreme Court uses the "manifest imbalance" test, which implies a substantial underrepresentation."

BFOQ (Bona Fide Occupational Qualification)

This defense is usually related to public safety. Courts have found that in employment which involves the public safety - bus drivers, pilots, police, and fire fighters - a __________ defense can stand.

Private sector

Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) and its 2008 Amendments (ADAAA) prohibit disability discrimination in the:

The application must be fair and reasonable

Title VII allows for gender to be the basis for differing employer-imposed grooming requirements for employees. What is the stipulation to this rule?

sincerely-held

Title VII requires employers to accommodate only religious practices arising out of _______ beliefs.

1. Working in the same place 2. Doing equal work - sufficient commonality of tasks and responsibilities 3. Receiving different and unequal pay

To make a claim of discrimination under the Equal Pay Act - the prima facie case - an employee must show that two employees of the opposite gender are:

former employer

To whom falls the burden to determine if an employer referral was truthful or not?

Appearing in public

Traditional views of disabled people have been changing. In 1973, the city of Chicago repealed a law created in the 1880's that forbade disabled people who were diseased, maimed, or unsightly from:

Persons or entities which manage benefits funds

Under ERISA, _________________ are considered fiduciaries.

90

Under ERISA, how many days from the beginning of benefits coverage does an employer have to provide a summary document plan to the employee?

OWBPA (Older Workers Benefit Protection Act)

Under __________ provisions, employers may offer retirement incentives to older workers as long as the terms and restrictions of the incentives are fully explained and assurances given that another more favorable plan will not be imminently forthcoming.

reasonable accommodation

Under the ADEA, there is no _______________ for age. Moreover, the condition of being over 40 is not a disability.

National health and safety

Under the Taft-Hartley Act, the executive branch of the federal government is empowered to obtain legal strikebreaking injunctions in the courts if an impending or current strike imperils:

class

Unlike disparate treatment based upon __________ characteristics, retaliation involves adverse job action based upon an employee's lawful actions.

60

WARN requires employers with over 100 employees to provide detailed written advance notification of plant closings and mass layoffs to affected employees, union bargaining units, and state and local government officials ___ days prior to the event.

Imposed an AA plan remedy upon the union which required a fund be set up, and other action taken, to assist in reaching the goal of 29 percent nonwhite membership in the union

What action did the courts take in the Sheet metal workers v. EEOC case?

Defined benefit and defined contribution

What are the two different types of pension plans?

Organizational display or workforce analysis

What are the two main approaches to preparing an organizational profile?

Seek external government funding

What did Congress intend employers to do before claiming undue hardship?

The right to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws

What did the U.S.C. Section 1981 provide to all citizens, including those of African descent?

The release of private information by federal agencies about public employees

What does the Federal Privacy Act of 1974 govern?

Unreasonable governmental searches into private affairs of employees

What does the fourth amendment prohibit?

State Law

What governs drug testing of private employees?

Affirmative action applied to private parties in discrimination lawsuits

What is Judicial Affirmative Action?

The power of the Supreme Court to consider whether a law comports with the Constitution

What is a judicial review?

A controlling rule, example, or guide

What is a precedent?

When an employer fails to terminate, or remove from an authority position, an employee when it is apparent he or she poses a danger to other employees or the firm

What is negligent retention?

Mutual obligation of the parties to participate actively in negotiations by manifesting a present intent to find a basis for agreement

What is the definition of good faith bargaining?

Conditions of unfairness or mistreatment exist at work to such a degree that no reasonable employee would feel he/she had any other option but to quit

What is the doctrince of Constructive Discharge?

Another employee, not the employer, caused the injury

What is the fellow servant rule?

To help management and laborers settle labor contract disputes

What is the main objective of the Federal Mediation and Conciliation Service (FMCS)?

Determine whether the worker has little freedom to exit the relationship because he/she is economically dependent on the business

What is the main purpose of the economic realities test?

It regulates how consumer reporting agencies collect, correct, disseminate, and use consumer credit information

What is the purpose of the Fair Credit Reporting Act?

To impose liability on persons and firms who defraud governmental programs

What is the purpose of the False Claims Act?

To protect older workers from potential abuse and to prevent circumvention of ADEA anti-discrimination protections

What is the purpose of the Older Worker Benefit Protection Act?

30%

What is the threshold number of workers needed to sign authorization cards to seek union formation from the NLRB?

A victim's sexual history or behavior is immaterial to a sexual harassment claim

What was the court's ruling in the Meritor case regarding the claimant's past sexual history?

To limit employer monopoly power

What was the main purpose of the Sherman Anti-Trust Act?

Intentional interference with a contract

When a third party, perhaps a co-worker or client, pressures the employer to terminate an employee without cause, it is referred to as:

What is reverse discrimination?

When an employee alleges disparate treatment under Title VII in cases where an employer, subject to an AA plan preference, impermissibly considers race and gender in an employment practice in favor of another

Disparate Impact

When an employer's facially neutral procedures, policies, or practices are "not job-related and consistent with a business necessity" and have the effect of creating an unnecessary obstacle to employment opportunity for a specific protected class, they are said to have __________________.

efforts, the cost of accommodation in terms of wages and administration, the type of job involved, and the size of the employer

When looking at whether an accommodation is an undue hardship, courts look to the employer's _______________.

USERRA (Uniformed Services Employment and Reemployment Rights Act)

Which Act prevents an employer from discriminating against a person who is, or has been, in military service?

Majority of citizens speak multiple languages

Which is NOT a legitimate business reason for basing employment decisions on English language skills?

Gender Harassment

Which of the following is always involved in a case of sexual harassment?

An intimidating, hostile, or offensive working environment that unreasonably interferes with an employee's work performance

Which of the following is considered an example of hostile working environment sexual harassment?

An entity is not engaged in an industry-affecting commerce

Which of the following is not a qualification to fall under federal employment law statutes?

Economic sustainability

Which of the following is not a recognized exception to at-will doctrine under the common law?

Biannual scheduled drug tests

Which of the following is not a requirement of the Omnibus Transportation Employee Testing Act (Omnibus Act)?

A person of the same gender received favorable employment action or the employer continues to look for applicants for the position.

Which of the following is not an element of a prima facie case for gender discrimination?

It demands relevant and necessary bargaining information

Which of the following is not an example of a union unfair labor practice?

Changing time schedules for individuals because of religious conflict

Which of the following is not an unlawful practice under Title VII:

High salary expectations for a specific task to be completed

Which of the following is not evidence of a task being essential?

Affinity Orientation

Which of the following is not included as a protected group in a federal contractor's mandatory nondiscrimination clause?

U.S. employment identification card

Which of the following is not part of the documentation needed for an alien to work in the United States?

The complaining party was previously employed by the employer in question

Which of the following is not something a complaining party must show in a case of pretext?

objective

Which type of performance measures are safest to have on an appraisal?

Tangible job

While the facts of such cases are always subject to personal interpretation, is it often more clear when quid pro quo sexual harassment occurs because there is traceable __________ action.

To curb union overreaching

Why did Congress pass the Taft-Hartley Act?

2/3 normal pay

Worker's compensation benefits are fixed by law and typically include replacement income of how much?

Montana Wrongful Discharge From Employment Act

_____________ prohibits termination for other than good cause once an employee has successfully passed a probationary period and allows for an employee to seek arbitration for a termination dispute.

Punitive damages

_______________ are rarely available, as the plaintiff must show the employer acted with malicious or reckless indifference to a person's federally-protected employment rights. Designed to punish employer.

The Rehabilitation Act of 1973

_______________ governs the authorization of grants to states for vocational rehabilitation services to those with severe disabilities, and it expanded previous federal responsibilities for research and training programs with respect to disabled persons.

The Consolidated Omnibus Budget Reconciliation Act

___________________ is the federal act that allows an employee - at his or her own expense - to continue company health care benefits for up to eighteen months when he or she leaves a job.

The Health Insurance Portability and Accountability Act

______________________ was passed in 1996 as an amendment to ERISA for the purpose of establishing standards in the health industry for the gathering, processing, retention, and disclosure of private health information.

Searching email is not prohibited by the EPCA because

________________________ it is viewed after, not during, transit. Because email is a permanent record and is discoverable in court, employers have a strong interest in protecting themselves from errant emails. The general rule is that when the employer is providing the computer and email service, it is free to read employee email messages pursuant to a business purpose.

Sex

efore the final passage of the Civil Rights Act of 1964, Virginia Democrat, Senator Howard W. Smith, inserted into the language of the legislation defining the class of persons protected under the anti-discrimination provisions of Title VII the word: