Chapter 28 & 29 Law
FLSA (Fair Labor Standards Act) wage requirements
$7.25 per hour must be paid to covered, nonex-empt employees. More than half of the states (and some cities) also have minimum wage laws. When the state (or city) minimum wage is greater than the federal minimum wage, the employee is entitled to the higher wage.
Immigration Reform and Control Act (IRCA)
, it provided amnesty to certain groups of illegal aliens living in the United States at the time. It also established a system that sanctions employers who hire immigrants lacking work authorization. The IRCA makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in this country. Through Immigration and Customs Enforcement (ICE) officers, the federal government conducts random compliance audits and engages in enforcement actions against employers who hire undocumented immigrants
exceptions based on tort theory
, the discharge of an employee may give rise to an action for wrongful discharge under tort theories. Abusive discharge procedures may result in a suit for intentional infliction of emotional distress or defamation. In addition, some courts have permitted workers to sue their employers under the tort theory of fraud
the National Labor Relations Act (NLRA) unfair labor practices
. The NLRA specifically defined a number of employer practices as unfair to labor: 1. Interference with the efforts of employees to form, join, or assist labor organizations or to engage in concerted activities for mutual aid or protection. 2. An employer's domination of a labor organization or contribution of financial or other support to it. 3. Discrimination in the hiring of or awarding of tenure to employees based on union affiliation. 4. Discrimination against employees for filing charges under the act or giving testimony under the act. 5. Refusal to bargain collectively with the duly designated representative of the employees.
what are other types of monitoring?
. These practices, which have included lie-detector tests and drug tests, have often been subject to challenge as violations of employee privacy rights. lie-detector test & drug testing
I-551 Permanent Resident Card
A document, known as a "green card," that shows that a foreign-born individual can legally work in the United States. Many immigrant workers are not already self-authorized, and an employer that wishes to hire them can attempt to obtain labor certification, or green cards, for them. A limited num-ber of new green cards are issued each year. A green card can be obtained only for a person who is being hired for a permanent, full-time position. To gain authorization for hiring a foreign worker, an employer must show that no U.S. worker is qualified, willing, and able to take the job
union shop
A firm that requires all workers, once employed, to become union members within a specified period of time as a condition of their continued employmen
closed shop
A firm that requires union membership as a condition of employment.
disparate-Treatment Discrimination
A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes
Pool of Applicants
A plaintiff can prove a disparate impact by comparing the employer's workforce with the pool of qualified individuals available in the local labor market. The plaintiff must show that (1) as a result of educational or other job requirements or hiring procedures, (2) the percentage of nonwhites, women, or members of other protected classes in the employer's workforce (3) does not reflect the percentage of that group in the pool of qualified applicants. A plaintiff who can show a connection between the practice and the dis-parity has made out a prima facie case and need not provide evidence of discriminatory intent.
Constructive Discharge
A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave
Equal Employment Opportunity Commission (EEOC)
A victim of alleged discrimination must file a claim with the EEOC before bringing a suit against the employer. The EEOC may investigate the dispute and attempt to arrange an out-of-court settlement. If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf. If the EEOC decides not to investigate the claim, the EEOC issues a "right to sue" that allows the victim to bring a per-sonal lawsuit against the employer. The EEOC does not investigate every claim of employ-ment discrimination, regardless of the merits of the claim. Generally, it investigates only "priority cases," such as cases involving retaliatory discharge (firing an employee in retali-ation for submitting a claim to the EEOC) and cases involving types of discrimination that are of particular concern to the EEOC
strike
An action undertaken by unionized workers when collective bargaining fails. The workers leave their jobs, refuse to work, and (typically) picket the employer's workplace.
what are the five reasons the someone could could use family and medical leave under the family and Medical Leave Act (FMLA)
An eligible employee may take up to twelve weeks of leave within a twelve-month period for any of the following reasons: 1. To care for a newborn baby within one year of birth. 2. To care for an adopted or foster child within one year of the time the child is placed with the employee. 3. To care for the employee's spouse, child, or parent who has a serious health condition. 4. If the employee suffers from a serious health condition and is unable to perform the essential functions of the job. 5. For any qualifying exigency (nonmedical emergency) arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty For instance, an employee can take leave to arrange for child care or to deal with financial or legal matters when a spouse is being deployed overseas
what are the restrictions on taking workers' compensation and when can you actually sue the company
An employee's acceptance of workers' compensation benefits bars the employee from suing for injuries caused by the employer's negligence. By barring lawsuits for negligence, workers' compensation laws also prevent employers from raising common law defenses to negligence, such as contributory negligence and assumption of risk. A worker may sue an employer who has intentionally injured the worker, however.
when may a employer be liable for wrongful discharge
An employer may be liable for wrongful discharge if: An employee performs a legal duty. An employee refuses to violate the law. An employee exercises a legal right. An employment contract is breached.
Protections Extend to Employees' Post-Pregnancy
An employer must continue to reasonably accommodate medical conditions of an employee related to pregnancy and childbirth, even after the pregnancy has ended. example case: Professional Ambulance, LLC, hired Allison Mayer as an emergency medical technician (EMT) while she was still breastfeeding an infant. She was supposed to work three twelve-hour shifts a week, but Professional did not provide her with a schedule so that she could arrange child care. Mayer informed Professional that she needed to take short breaks to use a pump to express breast milk (lactation breaks). At first, her supervisor told her to take these breaks in the restroom, but Mayer objected because the conditions were unsanitary. Then the employer made Mayer take lactation breaks in an office that was not private or secure and made Mayer uncomfort-able because the male EMTs could hear her pumping. A few weeks later, Professional fired Mayer, claiming that it was because other employees had complained about her being rude and abusive. The employer refused to provide her with further explanation and replaced her with a male EMT with fewer qualifications. Mayer sued. A federal district court found that Mayer had established a prima facie case of discrimination on the basis of pregnancy, childbirth, or related medical conditions
what are the remedies that a employer must do of they violate the Family and medical leave act (FMLA)
An employer that violates the FMLA can be required to provide various remedies, including the following: 1. Damages to compensate an employee for lost benefits, denied compensation, and actual monetary losses (such as the cost of providing for care of the family member) up to an amount equivalent to the employee's wages for twelve weeks (twenty-six weeks for military caregiver leave). 2. Job reinstatement. 3. Promotion, if a promotion has been denied A successful plaintiff is also entitled to court costs and attorneys' fees. In addition, if the plaintiff shows the employer acted in bad faith, the plaintiff can receive two times the amount of damages awarded by a judge or jury. Supervisors can also be held personally liable, as employers, for violations of the act. Employers generally are required to notify employees when an absence will be counted against leave authorized under the act. If an employer fails to provide such notice, and the employee consequently suffers an injury because of the lack of notice, the employer may be sanctioned.
what are the fines and penalties with the affordable care act
An employer who fails to provide health benefits as required under the statute can be fined up to $2,000 for each employee. An employer who offers a plan that costs an employee more than 9.5 percent of the employee's income may have to pay a penalty of $3,000 per insured worker.
Immigration Reform and Control Act (IRCA) penalties
An employer who violates the law by hiring an unauthorized alien is subject to substantial penalties. The employer may be fined up to $4,568 for each unauthorized employee for a first offense, $11,463 per employee for a second offense, and up to $22,972 for subsequent offenses. Employers who have engaged in a "pattern or practice of violations" are subject to criminal penalties, which include additional fines and imprison-ment for up to ten years. A company may also be barred from future govern-ment contracts for violations. In determining the penalty, ICE considers the seriousness of the violation (such as intentional falsification of documents), the employer's past compliance, and whether the employer cooperated with authorities during the investigation.
what is wrongful discharge
An employer's termination of an employee's employment in violation of the law (discrimination or hostile work environment), or an employment contract.
Hot-Cargo Agreement
An illegal agreement in which employers voluntarily agree with unions not to handle, use, or deal in the nonunion-produced goods of other employers.
Undue Hardship
As mentioned, an employer is not required to make an accommodation that would cause the employer undue hardship. A reasonable attempt to accommodate does not necessarily require the employer to make every change an employee requests or to make a permanent change for an employee's benefit.
Norris-LaGuardia Act
Congress protected peaceful strikes, picketing, and boy-cotts in the Norris-LaGuardia Act.26 The statute restricted the power of federal courts to issue injunctions against unions engaged in peaceful strikes. In effect, this act established a national policy permitting employees to organize
Disparate-Impact Discrimination
Discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect.
Employee Privacy Protection and examples of what they do to protect privacy
Employees of private (nongovernment) employers have some privacy protection under tort law and state constitutions. In addition, state and federal statutes may limit an employer's conduct in certain respects. For instance, the Electronic Communications Privacy Act prohibits employers from intercepting an employee's personal electronic communica-tions unless they are made on devices and systems furnished by the employer. Nonetheless, employers do have considerable leeway to monitor employees in the workplace. In addition, private employers generally are free to use fil-tering software to block access to certain websites, such as sites containing sexually explicit images. The First Amendment's protection of free speech prevents only government employers from restraining speech by blocking websites.
Discrimination Based on Religion
Employers cannot treat their employees more or less favorably based on the employees' religious beliefs or practices and cannot require employees to participate in any religious activity (or forbid them from participating in one)
Union Election Campaigns
Employers may limit the campaign activities of union supporters as long as the employer has a legitimate business reason for doing so.
Compliance with Title VII is monitored by who
Equal Employment Opportunity Commission (EEOC). .
what are the exceptions for employment at will
Exceptions to the employment-at- will doctrine Exceptions based on contract theory - implied consent based on employee's reasonable expectations of continued employment Exceptions based on tort theory - wrongful discharge Exceptions based on public policy - reasons that violate a fundamental public policy expressed clearly in jurisdiction's statutory law
what are the 5 things in bad faith bargaining
Excessive delaying tactics Insistence on unreasonable contract terms Rejecting a proposal without offering a counterproposal Engaging in a campaign among workers to undermine the union Constantly shifting positions on disputed contract terms
what are the FICA rates and limits
For Social Security, the basis for the contributions is the employ-ee's annual wage base—the maximum amount of the employee's wages that is subject to the tax. The maximum amount subject to the tax is currently $137,700, and the tax rate is 12.4 percent. The Medicare tax rate is 2.9 percent. Unlike Social Security, known as OASDI? Medicare has no cap on the amount of wages subject to the tax. So even if an employee's salary is well above the cap for Social Security, the employee will still owe Medicare tax on the total earned income. Thus, for Social Security and Medicare together, typically the employer and the employee each pay 7.65 percent—6.2 percent (half of 12.4 percent) for Social Security, up to the maximum wage base, plus 1.45 percent (half of 2.9 percent) for Medicare. Self-em-ployed persons pay both the employer's and the employee's portions of the Social Security and Medicare taxes. Additionally, under the Affordable Care Act, high-income earners are subject to an additional Medicare tax of 0.9 percent (for a total rate of 3.8 percent)
how do you succeed in a gender discrimination suit
Generally, to succeed in a suit for gender discrimination, a plaintiff must demonstrate that gender was a determining factor in the employer's decision to fire or refuse to hire or promote her or him. Typically, this involves looking at all of the surrounding circumstances. example case: Evangeline Parker received multiple promotions at Reema Consulting Services, Inc. (RCSI). In response, a jealous coworker told other employees that Parker had been promoted because she was having sex with a superior. After this false rumor spread, Parker was informed that she had become ineligible for further advancement and was blamed for "bringing the situation to the workplace." A trial court barred Parker's gender discrimination lawsuit, finding that RCSI's actions, while reprehensible, were based on her alleged conduct (the affair with her superior), not her gender. A federal appeals court disagreed, emphasizing the continuing power of the cultural stereotype that women use sex to achieve success in the business world. This same stereotype does not apply to successful men. Therefore, the court ruled, gender was a possible determining factor in RCSI's conduct toward Parker, and her lawsuit could proceed
H-2, O, L, and E Visas
H-2A visas provide for workers performing agricultural labor of a seasonal nature. H-2B visas are used for workers in nonagricultural positions. O visas provide entry for persons who have "extraordinary ability in the sciences, arts, education, business or ath-letics which has been demonstrated by sustained national or international acclaim." L visas allow a company's foreign managers or executives to work inside the United States. E visas permit the entry of certain foreign investors and entrepreneurs.
voting in union elections
If an election is held, the NLRB supervises the election and ensures secret voting and voter eligibility. If the proposed union receives majority support in a fair election, the NLRB certifies the union as the bargaining representative for the employees.
union elections
If the employer does not voluntarily recognize the union—or if less than a majority of the workers sign authorization cards—the union organizers can petition for an election. The organizers present the authorization cards to the NLRB with a petition to hold an election on unionization. For an election to be held, they must demonstrate that at least 30 percent of the workers to be represented support a union or an election on unionization
what are the requirements for worker's comp
In general, only two requirements must be met for an employee to receive benefits under a state workers' compensation law: 1. The existence of an employment relationship. 2. An accidental injury that occurred on the job or in the course of employment, regardless of fault. (An injury that occurs while an employee is commuting to or from work usually is not considered to have occurred on the job or in the course of employment and hence is not covered.)
election rules unions
In most instances, the parties agree on the voting unit and other issues. If the parties do not agree, the NLRB holds a pre-election hearing shortly after it receives a petition to resolve issues and determine whether an election should be conducted. Before the hearing, the company must submit a "statement of position" laying out every argument it intends to make against the union. Any argument that the company does not include in its position paper can be excluded from evidence at the hearing. Once the hearing is con-cluded, an election cannot be scheduled for twenty business days unless the parties agree otherwise.
drug testing and what is deemed ok and not
In the interests of public safety, many employ-ers, including government employers, require their employ-ees to submit to drug testing. Government (public) employers are constrained in drug testing by the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures. Drug testing of public employees is allowed by statute for transportation workers. Courts normally uphold drug testing of certain employees when drug use in a particular job may threaten public safety. Also, when there is a reasonable basis for suspecting government employees of using drugs, courts often find that drug testing does not violate the Fourth Amendment. The Fourth Amendment does not apply to drug testing conducted by private employers. Hence, the drug testing of private-sector employees is governed by state law, which varies widely. Many states have statutes that allow drug testing by private employers but place restrictions on when and how the testing may be performed. A collective bargaining agreement may also provide protection against drug testing (or authorize drug testing under certain conditions). The permissibility of a private employee's drug test often hinges on whether the employer's testing was reasonable. Random drug tests and even "zero-tolerance" policies (which deny a "second chance" to employees who test positive for drugs) have been held to be reasonable.
protected class
Legislation, judicial decisions, and administra-tive agency actions restrict employers from discriminating against workers on the basis of race, color, religion, national origin, gender, sexual orientation, age, disability, or military status. A class of persons defined by one or more of these criteria is known as a protected class
lie-detector test rules and excpetions
Many employers once required employees or job applicants to take polygraph examinations (lie-detector tests). Today, the Employee Polygraph Protection Act generally prohibits employers from requiring or requesting that employees or job applicants take lie-detector tests. It also prevents employers from asking about the results of a polygraph or taking any negative employment action based on the results. but there are exceptions to government and security firms
what is medicare
Medicare is a federal government health insurance program that is administered by the Social Security Administration for people sixty-five years of age and older and for some under the age of sixty-five who are disabled.
what are the 5 things in good faith collective bargaining
Negotiating with the belief that an agreement is possible Seriously considering the other side's positions Making reasonable proposals Being willing to compromise Sending bargainers who have the authority to enter into agreements for the company
Appropriate Bargaining Unit.
Not every group of workers can form a single union. The proposed union must represent an appropriate bargaining unit. One key requirement of an appropriate bargaining unit is a mutuality of interest among all the workers to be represented by the union. Factors considered in determining whether there is a mutuality of interest include the similarity of the jobs of all the workers to be unionized and their physical location.
Reverse Discrimination
Note that discrimination based on race can also take the form of reverse discrimination, or discrimination against "majority" individuals, such as white males.
what are the Occupational Safety and Health Administration (OSHA) rules when it comes to inspections and complaints
OSHA compliance officers may enter and inspect the facilities of any establishment covered by the Occupational Safety and Health Act. Employees may also file complaints of violations and cannot be fired by their employers for doing so. Under the act, an employer cannot discharge an employee who files a complaint or who, in good faith, refuses to work in a high-risk area if bodily harm or death might result. In the following case, an employer cited for an OSHA violation tried to minimize its own fault by focusing the court's attention on the injured employee's failure to follow workplace safety rules.
if plaintiff can establish prima facie then where does the burden go after that
Once a prima facie case has been established, the burden then shifts to the employer-defendant, who must articulate a legal reason for not hiring the plain-tiff or for taking some other adverse employment action. If the employer did not have a legal reason for taking the action, the plaintiff wins. If the employer can articulate a legitimate reason for the action, the burden shifts back to the plaintiff. To prevail, the plaintiff must then show that the employer's reason is a pretext (not the true reason) and that the employer's decision was actually motivated by discriminatory intent
prima facie case
Prima facie is Latin for "at first sight." Legally, it refers to a fact that is presumed to be true unless contradicted by evidence A case in which the plaintiff has produced sufficient evidence of a claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut the claim
FLSA (Fair Labor Standards Act) child labor rules
Restrictions on child labor differ by age group. Children under fourteen years of age are allowed to do certain types of work. They can deliver newspapers, work for their parents, and be employed in entertainment and (with some exceptions) agriculture. Children aged fourteen and fifteen are allowed to work, but not in hazardous occupations. There are also numerous restrictions on how many hours per day and per week children can work. Working times and hours are not restricted for persons between the ages of sixteen and eighteen, but they cannot be employed in hazardous jobs or in jobs detrimental to their health and well-being. None of these restrictions apply to individuals over the age of eighteen.
Workers' Compensation Laws
State statutes that establish an administrative process for compensating workers for injuries that arise in the course of their employment, regardless of fault.
the immigration act
The Immigration Act placed caps on the number of visas (entry permits) that can be issued to immigrants each year, including employment-based visas. Employment-based visas may be classified as permanent (immigrant) or temporary (nonimmigrant). Employers who wish to hire workers with either type of visa must comply with detailed government regulations
What are employers' requirements for Occupational Safety and Health Administration (OSHA) regarding warning workers tracking stuff and reporting injuries and death
The act requires that employers post certain notices in the workplace, maintain specific records, and submit reports. Employers with eleven or more employees are required to keep records of occupational injuries and illnesses. Each record must be made available for inspection when requested by an OSHA compliance officer. Some employers are required to electron-ically post their workplace injury and illness records from the prior year on OSHA's website. Whenever a work-related fatality or serious injury requiring hos-pitalization occurs, employers must report directly to OSHA. The employer must notify OSHA within eight hours if an employee dies and submit a report within twenty-four hours for any inpatient hospitalization, amputation, or loss of an eye. A company that fails to do so will be fined
Vesting
The creation of an absolute or unconditional right or power.
what is the Immigration Reform and Control Act (IRCA) documentation requirements
The employer must declare, under penalty of perjury, that an employee produced documents establishing the employee's identity and legal employabil-ity. A U.S. passport establishing the person's citizenship is acceptable documentation, as is a document authorizing a foreign citizen to work in the United States, such as a Permanent Resident Card Most legal actions for violations of I-9 rules are brought against employees who provide false information or documentation If the employee enters false information on an I-9 form or presents false documentation, the employer can fire the worker, who then may be subject to deportation. Nevertheless, employers must be honest when verifying an employee's doc-umentation. If an employer "should have known" that the worker was unauthorized, the employer has violated the rules.
Collective Bargaining
The process by which labor and management negotiate the terms and conditions of employment, including working hours and workplace conditions.
I-9 verification
The process of verifying the employment eligibility and identity of a new worker. It must be completed within three days after the worker commences employment
the right to strike
The right to strike is guaranteed by the NLRA, within limits. In Nebraska public employees do not have the right to strike - they are guaranteed wage comparability by statute Certain strike activities are protected by the free speech guarantee of the First Amendment. Strikers are not allowed to use (or threaten to use) violence against anyone or to prevent oth-ers from entering a facility. Furthermore, a strike may be illegal if it contravenes a no-strike clause that was in the previous collective bargaining agreement between the employer and the union
the Employee Retirement Income Security Act (ERISA)
This act empowers a branch of the U.S. Department of Labor to enforce its provisions governing employers that have private pension funds for their employees. ERISA does not require an employer to establish a pen-sion plan. When a plan exists, however, ERISA specifies standards for its management, including establishing rules on how funds must be invested and records kept
the National Labor Relations Act (NLRA)
This act established the rights of employees to engage in collective bargaining and to strike.
Reasonable Accommodation
This means that an employer may need to make reasonable adjustments to the work environment to allow employees to practice their religion. Reasonable accommoda-tion is required even if an employee's belief is not based on the doctrines of a traditionally recognized religion, such as Christianity or Judaism, or a particular denomination, such as Baptist. The only requirement is that the belief be sincerely held by the employee
Title VII
Title VII prohibits discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, gender, or sexual orientation at any stage of employment 15 or more empolyees
the National Labor Relations Act (NLRA) and what workers are protected
To be protected under the NLRA, an individual must be an employee, as that term is defined in the statute. Courts have long held that job applicants fall within the definition (otherwise, the NLRA's ban on discrimination in hiring would mean nothing). Additionally, individuals who are hired by a union to organize a company are to be considered employees of the company for NLRA purposes. Even a temporary worker hired through an employment agency may qualify for protection under the NLRA. The same cannot be said for some faculty at private universities.
Immigration Reform and Control Act (IRCA) and how to comply
To comply with the IRCA, an employer must perform an I-9 verification for a new hire, including those hired as "contractors" or "day workers" if they work under the employer's direct supervision. Form I-9, Employment Eligibility Verifica-tion, which is available from U.S. Citizenship and Immigration Services, must be com-pleted within three days of a worker's commencement of employment. The three-day period is to allow the employer to check the form's accuracy and to review and verify documents establishing the prospective worker's identity and eligibility for employment in the United States.
how do determine if the equal pay act has been violated
To determine whether the Equal Pay Act has been violated, a court will look to the primary duties of the two jobs—the job content rather than the job description controls. If the wage differential is due to "any factor other than gender," such as a seniority or merit system, then it does not violate the Equal Pay Act.
The H-1B Visa Program
To obtain an H-1B visa, the potential employee must be qual-ified in a "specialty occupation," meaning that the individual has highly specialized knowledge and has attained a bachelor's or higher degree or its equivalent. Individuals with H-1B visas can stay in the United States for three to six years and can work only for the sponsoring employer An employer who wishes to submit an H-1B application must first file a Labor Condition Application on a form known as ETA 9035. The employer must agree to provide a wage level at least equal to the wages offered to other individuals with similar experience and qualifica-tions. The employer must also show that the hiring will not adversely affect other workers similarly employed. The employer is required to inform U.S. workers of the intent to hire a foreign worker by posting the form. The U.S. Department of Labor reviews the applications and may reject them for omissions or inaccuracies.
Proving Constructive Discharge
To prove constructive discharge, an employee must present objective proof of intolerable working conditions. The employee must also show that the employer knew or had reason to know about the conditions, yet failed to correct them within a reasonable period. In addition, courts generally require the employee to show causation—that the employer's unlawful discrimination caused the working conditions to be intolerable. Put in a different way, the employee's resignation must be a foreseeable result of the employer's discriminatory action. Courts weigh the facts on a case-by-case basis.
the Occupational Safety and Health Administration (OSHA)
To this end, OSHA has established specific safety standards for various industries that employers must follow. For instance, OSHA regulations require the use of safety guards on certain mechanical equipment and set maximum levels of exposure to substances in the workplace that may be harmful to workers' health
what is the Immigration Reform and Control Act (IRCA) rules for enforcement
U.S. Immigration and Customs Enforcement (ICE) is the largest investigative arm of the U.S. Department of Homeland Security. ICE has a general inspection program that conducts random compliance audits. Other audits may occur if the agency receives a written complaint alleging an employer's violations. Government inspections include a review of an employer's file of I-9 forms. The government does not need a subpoena or a warrant to conduct such an inspection. If an investigation reveals a possible violation, ICE will bring an administrative action and issue a Notice of Intent to Fine, which sets out the charges against the employer. The employer has a right to a hearing on the enforcement action if a request is filed within thirty days. This hearing is conducted before an administrative law judge, and the employer has a right to counsel and to discovery. The typical defense in such actions is good faith or substantial compliance with the documentation provisions.
Discrimination against Transgender Persons
Until 2020, federal courts started interpreting Title VII as applicable to discrimination because of sexual orientation.
Potential Section 1981 Claims
Victims of racial or ethnic discrimination may also have a cause of action under 42 U.S.C. Section 1981. This section, which was enacted in 1866 to protect the rights of freed slaves, prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts. Because employment is often a contractual relationship, Section 1981 can provide an alternative basis for a plaintiff's action and is potentially advantageous because it does not place a cap on damages. (There is a cap placed on Title VII damages from small employers, as will be discussed later.)
what are the benefits and protections under the Family and medical leave act (FMLA) when the worker returns and what are the exceptions as well?
When an employee takes FMLA leave, the employer must continue the worker's health care coverage on the same terms as if the employee had continued to work. On returning from FMLA leave, most employees must be restored to their original position or to a comparable position (with nearly equivalent pay and benefits, for instance). An important exception allows the employer to avoid reinstating a key employee—defined as an employee whose pay falls within the top 10 percent of the firm's local workforce. To justify denying reinstatement, the employer must show that reinstating the key employee would cause "substantial and grievous economic injury" to the employer. The employer must also notify the employee of its intention to deny reinstatement.
what is the reasonable expectation of privacy
When determining whether an employer is liable for violating an employee's privacy rights, the courts generally weigh the employer's interests against the employee's reasonable expectation of privacy. Normally, if employees have been informed that their communications are being moni-tored, they cannot reasonably expect those interactions to be private. In addition, a court will typically hold that employees do not have a reasonable expectation of privacy when using a system (such as an e-mail system) provided by the employer. If employees are not informed that certain communications are being monitored, however, the employer may be held liable for invading their privacy. Most employers that engage in electronic monitoring notify their employees about the monitoring. Nevertheless, notifying employees of a general policy may not sufficiently protect an employer who monitors forms of communications that the policy fails to mention. For instance, notifying employees that their e-mails and phone calls may be monitored does not necessarily protect an employer who also monitors social media posts or text messages.
The Pregnancy Discrimination Act
Women affected by preg-nancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work. For instance, an employer cannot discriminate against a pregnant woman by withholding benefits available to others under employee benefit programs. An employer is required to reasonably accommodate a worker who is pregnant. In the following case, an employer accommodated many of its employees who had lifting restric-tions due to disabilities.
employment at will
a common law doctrine under which either party (employer or employee) may terminate an employment relationship at any time for any reason, unless it would violate a contract or statute. (Only Montana does not recognize employment at will.)
Establishing a Prima Facie Case.
a plaintiff must show all of the following: 1. The plaintiff is a member of a protected class. 2. The plaintiff applied and was qualified for the job in question. 3. The plaintiff was rejected by the employer. 4. The employer continued to seek applicants for the position or filled the position with a person not in a protected class
Family and Medical Leave Act (FMLA)
allows employees to take time off from work for family or medical reasons or in certain situations that arise from military service The FMLA requires employers who have fifty or more employees to provide employees with up to twelve weeks of unpaid family or medical leave during any twelve-month period. An eligible employee may take up to twelve weeks of leave within a twelve-month period for any of the following reasons: 1. To care for a newborn baby within one year of birth. 2. To care for an adopted or foster child within one year of the time the child is placed with the employee. 3. To care for the employee's spouse, child, or parent who has a serious health condition. 4. If the employee suffers from a serious health condition and is unable to perform the essential functions of the job. 5. For any qualifying exigency (nonmedical emergency) arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty For instance, an employee can take leave to arrange for child care or to deal with financial or legal matters when a spouse is being deployed overseas
whistleblowing
an employee's disclosure to government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities.
Walsh-Healey Act
applies to manufacturers and suppliers on government contracts and requires that a minimum wage, as well as overtime pay at 1.5 times the regular pay rate
authorization cards
card signed by an employee that gives a union permission to act on his or her behalf in negotiations with management.
The Health Insurance Portability and Account-ability Act (HIPAA)
contains provisions that affect employer-sponsored group health plans. HIPAA does not require employers to provide health insurance, but it does establish requirements for those that do. For instance, HIPAA restricts the manner in which covered employers collect, use, and disclose the health information of employees and their families
Davis-Bacon Act
contractors and subcontractors working on government construction projects have to pay "prevailing wages"-The average wage paid to similarly employed workers in a specific occupation in the area
Federal Unemployment Tax Act (FUTA)
created a state-administered system that provides unemployment compensation to eligible individuals. Under this system, employers pay into a fund, and the proceeds are paid out to qualified unemployed workers
FLSA (Fair Labor Standards Act) Overtime rules
employees who work more than forty hours per week normally must be paid 1.5 times their regular pay for all hours over forty Certain employees are exempt from the FLSA's overtime provisions. These employees generally include executive, administrative, and professional employees, as well as outside salespersons and those who create computer code. Executive and administrative employees are those whose primary duty is management and who exercise discretion and independent judgment. Employers are not required to pay overtime wages to exempt employees. Regulations also provide that employers are not required to pay overtime to workers who make salaries of more than $35,568. Note that state legislation may include rules that impact federal wages and overtime laws. For instance, if a state requires employers to give employees one day off per week, an employee who works that day may be entitled to overtime wages
who contributes under Federal Insurance Contributions Act (FICA)
employers and employees
the National Labor Relations Act (NLRA) and good faith bargining
employers and unions have a duty to bargain in good faith. Bargaining over certain subjects (such as wages, hours, and benefits) is manda-tory, and a party's refusal to bargain over these subjects is an unfair labor practice that can be reported to the NLRB. An employer may be required to bargain with the union over the use of hidden video surveillance cameras, for instance.
Discrimination Based on Gender
employers are forbidden from discriminating against employees on the basis of gender. Employers are prohibited from classifying jobs as male or female and from advertising positions as male or female unless they can prove that the gender of the applicant is essential to the job. In addition, employers cannot have sepa-rate male and female seniority lists and cannot refuse to promote employees based on gender.
what is electric monitoring and what are some examples
employers engage in some form of surveillance of their employees. Many employers review employees' e-mail, as well as their social media posts and other Internet messages. Employers may also make video recordings of their employees at work, monitor their telephone conversations, and listen to their voice mail.
After a Strike Ends
employers have the right to hire permanent replacements during the strike. Striking workers are not guaranteed the right to return to their jobs after the strike if satisfactory replacement workers have been found If the employer has not hired replacement workers to fill the strikers' positions, however, then the employer must rehire the economic strikers to fill any vacancies. Employers may not discriminate against former economic strikers, and those who are rehired retain their seniority rights.
The Consolidated Omnibus Budget Reconciliation Act (COBRA)
enables workers to continue, for a limited time, their health care coverage after they are no longer eligible for their employers' group health insurance plans. The workers—not the employers—pay the premiums for the continued coverage. COBRA prohibits an employer from eliminating a work-How does the Federal Unemployment Tax Act benefit employees? er's medical, optical, or dental insurance when the worker's employment is terminated or when a reduction in the worker's hours would affect coverage. Termination of employment may be voluntary or involuntary. Only workers fired for gross misconduct are excluded from protection. Employers, with some exceptions, must inform an employee of COBRA's provisions when the employee faces termination or a reduction of hours that would affect eligibility for cov-erage under the employer's health insurance plan. An employer that does not comply with COBRA risks substantial penalties, such as a tax of up to 10 percent of the annual cost of the group plan or $500,000, whichever is less
The Labor-Management Reporting and Disclosure Act (LMRDA)
established an employee bill of rights and reporting require-ments for union activities. The act also outlawed the hot-cargo agreement, in which employers voluntarily agree with unions not to handle, use, or deal in goods produced by nonunion employees working for other employers. The LMRDA strictly regulates unions' internal business procedures, including union elec-tions. For instance, it requires a union to hold regularly scheduled elections of officers using secret ballots. Ex-convicts are prohibited from holding union office. Moreover, union offi-cials are accountable for union property and funds. Members have the right to attend and to participate in union meetings, to nominate officers, and to vote in most union proceedings. The LMRDA holds union officers to a high standard of responsibility and ethical con-duct in administering the affairs of their union.
fair labor standards Act (FLSA)
extended wage-hour requirements to cover all employers engaged in interstate commerce or in producing goods for interstate commerce. Certain other types of businesses are included as well. The FLSA, as amended, provides the most comprehensive federal regulation of wages and hours today.
The Lilly Ledbetter Fair Pay Act
made discriminatory wages actionable under federal law regardless of when the discrimination began. Previously, plaintiffs had had to file a complaint within a limited time period. Today, if a plaintiff continues to work for the employer while receiving discriminatory wages, the time period for filing a complaint is basically unlimited
National Labor Relations Board (NLRB)
oversee union elections and to prevent employers from engaging in unfair and illegal union activities and unfair labor practices. The NLRB has the authority to investigate employees' charges of unfair labor practices and to file complaints against employers in response to these charges. When violations are found, the NLRB may issue a cease-and-desist order compelling the employer to stop engag-ing in the unfair practices. Cease-and-desist orders can be enforced by a federal appellate court if necessary. After the NLRB rules on claims of unfair labor practices, its decision may be appealed to a federal court.
The Equal Pay Act
requires equal pay for male and female employees doing similar work at the same establishment.
The Affordable Care Act
requires most employers with fifty or more full-time employees to offer health insurance benefits. Under the act, any business offering health benefits to its employees, even if it is not legally required to do so, may be eligible for tax credits of up to 35 percent to offset the costs. Under the so-called "50/30 rule," the ACA applies to businesses that employ at least fifty workers for at least thirty hours a week.
how does a Disparate-Impact Discrimination work
the complaining party must first show statis-tically that the employer's practices, procedures, or tests are discriminatory in effect. Once the plaintiff has made out a prima facie case, the burden of proof shifts to the employer to show that the practices or procedures in question were justified. There are two ways of showing that an employer's practices, procedures, or tests are effec-tively discriminatory—that is, that disparate-impact discrimination exists. These involve the pool of applicants and the rate of hiring.
what are the exceptions based on contact therory
their is a implied contract between for employment and if the employee is fired because of something that would not apply between that, it may be a breach of contract. this could be based on what is said orally to the employee and what is in the companies code of conduct.
The Labor Management Relations Act (LMRA) or Taft-Hartley Act
was passed in 1947 to stop unfair union practices. example: closed shop The LMRA also prohibited unions from refusing to bargain with employers, engaging in certain types of picketing, and featherbedding—causing employers to hire more employees than necessary. The act also allowed individual states to pass their own right-to-work laws, which make it illegal for union membership to be required for continued employment in any establishment. Thus, union shops are technically illegal in the twenty-eight states that have right-to-work laws
Exceptions based on public policy most common type of exception
whistleblowing
