Final

•A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if

(a) all entering employees are subjected to the examination; (b) information regarding the medical condition or history is maintained in separate medical files; and (c) the results of the examination are only used in a permissible way.

Please select the answer that lists the three steps in the McDonnell Douglas burden-shifting paradigm for disparate treatment discrimination claims involving circumstantial evidence. A) Severe, pervasive, unwelcome. B) Bona fide occupational qualification, business necessity, reasonable accommodation. C) Direct evidence, circumstantial evidence, best evidence. D) Prima facie case, legitimate nondiscriminatory reason, pretext

D) Prima facie case, legitimate nondiscriminatory reason, pretext

ADEA claims recognized

Disparate impact/treatment Hostile work environment Retaliation

Employees who sign invalid waiver ___have to return benefits received under invalid waiver.

Do not

§Determine who must be covered by pension plans. §Set vesting requirements. §Amount employer must invest for benefit of employees. §Completely disclose administration of plan. §Not exclude employees from a plan because of age (so long as employee is over 21).

ERISA requirements

___retain their status as employees and cannot be discharged, but they can be replaced by their employer

Economic strikers

Who determines the essential functions of a job?

The employer

T/F: An individual who is incorrectly regarded as having a disability is protected from discrimination under the ADA even if the employee is not actually disabled.

True

§After FMLA leave, employee must be―

•Restored to original job. OR Given an equivalent job

"disability" defined to mean with respect to an individual someone who

(1) is disabled (a physical or mental impairment that substantially limits one or more major life activities) (2) has a record of an impairment; or (3) is "regarded as" having an impairment."

ADA qualified individual

an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

§It is the ___job to request an accommodation.

employee's

§It is the___ right to choose which accommodation to provide, so long as the one selected meets the test of reasonableness.

employer's

State governments are ___ ADEA

exempt from

Even a condition that is merely episodic or in remission___

is a disability if it would substantially limit a major life activity when active.

FMLA protects ___

men and women equally

Nonexempt employees FLSA are generally...

§Blue collar workers, such as production line, janitorial, construction employees. §"Pink collar" workers such as licensed practical nurses (LPNs), wait staff, filing clerks. §First responders, such as police officers, fire fighters, EMTs. §Anyone engaged in manual labor.

OWBPA valid waivers may not

-Prohibit employee for filing a claim with EEOC. -Prohibit employee from participating in any EEOC investigation. -Prohibit EEOC from investigating or pursuing victim-specific relief.

Exceptions to ADEA

1) An employer may discriminate where age is a bona fide occupational qualification. 2) An employer may discriminate where the differentiation between workers "is based on reasonable factors other than age."

FMLA eligible employee

1.Has been employed by the employer for at least 12 total(not necessarily consecutive) months. 2.Has performed at least 1,250 hours of service during the 12-month period immediately preceding the leave. 3.Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

FMLA provides ___ of ___ leave

12 months, unpaid

Claims not recognized by ADEA

Mixed motive

___requires retirement plans

No federal law

___cannot be discharged nor permanently replaced

Unfair labor practice strikers

How to analyze disparate treatment claims under ADEA

Use McDonnell Douglass, employee must ultimately establish but-for causation

Small local governments are ___ ADEA

protected by

Compensatory time (or "comp time") is a permitted alternative to overtime for private sector workers. True or false?

False

FMLA prima facie elements

1.Plaintiff engaged in statutorily protected activity. 2.Plaintiff suffered an adverse employment action. 3.Plaintiff established a causal link between statutorily protected activity and adverse employment action.

Must take new child leave within ___after birth of child.

12 months

Title I of the ADA only applies to employers with___

15 or more employees.

ADEA applies to employers with ___ employees

20+

ADEA protects those ages___

40 +

ADEA disparate treatment prima facie case

40+ years old Experienced an adverse action Was doing well enough to meet employer's expectations Others not in protected class were treated better

FMLA applies to employers with ___ employees within ___ of a worksite (including state and local government)

50 or more, 75 miles

How many employees must an employer have before it is covered by Title VII of the Civil Rights Act? A) 15 B) 50 C) 20 D) None; $500,000 in gross revenue.

A) 15

Abraham is a male television producer at New Harmony TV, a very conservative Christian-based television channel based out of Argone, Mississippi. New Harmony TV is a for-profit company owned by a hedge fund. It has lots of television shows; it also hosts a weekly, made-for-TV religious experience complete with fireworks and a full pig BBQ. New Harmony TV boasts a staff of 250 employees, including Abraham. Abraham is one of New Harmony's hardest workers, logging over 3,000 hours of work time each year due to multiple late nights. One Tuesday morning, Abraham reveals to his boss that he got married over the weekend....to another man. He asks to take leave because, as it happens, his husband was involved in a terrible car wreck the afternoon of the wedding and has been laid up in the hospital with multiple broken bones and a punctured lung since Saturday. The doctor says the husband may be in the hospital another three or four weeks. The boss goes to the HR manager to see what to do? What advice should the HR manager give? Select the best answer. A) Abraham should be granted FMLA leave . B) Abraham is ineligible for FMLA leave because his spouse is of the same sex and therefore does not qualify as a "spouse" under the FMLA. C) Abraham has not been married for 12 months, and thus the FMLA does not apply to his request. D) Abraham is not entitled to leave because the husband's condition does not qualify under the FMLA.

A) Abraham should be granted FMLA leave .

What is the break time rule under the Fair Labor Standards Act? A) Employees are not required to be given breaks. However, if they are given breaks, breaks of 20 minutes or less are always paid breaks, and breaks of 30 minutes or more do not have to be paid. B) Employees are entitled to break and rest periods as needed throughout the day. These break periods are unpaid. However, employees are entitled to a paid lunch break if they work 8 hours or more a day. C) Only exempt employees are entitled to breaks under the FLSA, and the break typically consists of a one-hour lunch break.

A) Employees are not required to be given breaks. However, if they are given breaks, breaks of 20 minutes or less are always paid breaks, and breaks of 30 minutes or more do not have to be paid.

Select the three main characteristics of "at will" employment under current American law. A) Employer may terminate for any reason or no reason. B) There is no fixed period of employment. C) Employee may resign for any reason or no reason D) Employment is for one year unless otherwise stated E) Employer must have good cause to terminate an employee . F) Resignation of an employee must be documented in writing to be effective.

A) Employer may terminate for any reason or no reason. B) There is no fixed period of employment. C) Employee may resign for any reason or no reason

Please select all of the characteristics of a non-exempt worker under the FLSA. Select all that apply. A) Must be paid a minimum wage of at least $7.25 per hour. B) Does not have to be paid overtime. C) Must be engaged in manual labor. D) Must be paid overtime for any hours over 40 within a 7-day workweek. E) Overtime must be calculated at 1.5 times the regular hourly rate. F) Must affirmatively "opt out" of coverage under the FLSA in advance.

A) Must be paid a minimum wage of at least $7.25 per hour. D) Must be paid overtime for any hours over 40 within a 7-day workweek. E) Overtime must be calculated at 1.5 times the regular hourly rate.

Which of the following is NOT a protected characteristic under the federal anti-discrimination laws? A) Parental status. B) Race. C) Disability.

A) Parental status.

In response to an employer's assertion of a legitimate, nondiscriminatory reason, an employee must establish "pretext." Which of the following, standing alone, would suffice to show pretext? A) Proof that the employer's reason is a lie. B) Proof that the employer's reason was based upon a mistake made by the employer. C) Proof that the employer's reason was never told to the employer at the time the employee experienced the adverse action. D) Proof that the employer's reason is fundamentally unfair.

A) Proof that the employer's reason is a lie.

Which of the following are examples of potential reasonable accommodations under the Americans with Disabilities Act? A) Reassignment to a vacant position. B) Excuse misconduct related to a disability. C) Changing an employee's supervisor who is causing undue stress. D) Making existing facilities used by employees accessible to those with disabilities. E) Unpaid leave over and above FMLA leave. F) Allowing a comfort or service animal in the workplace. G) Shift portions of essential functions to other employees who are less busy.

A) Reassignment to a vacant position. D) Making existing facilities used by employees accessible to those with disabilities. E) Unpaid leave over and above FMLA leave. F) Allowing a comfort or service animal in the workplace.

Freedom Enterprises desires to roll out a new job application, and they ask you as the HR Manager to evaluate any issues. One question you come across asks applicants to list any relevant family medical history. Managers explain that they need this information because there has been a serious problem with new employees leaving the job after a few years due to medical problems that did not manifest until after the date of hire, making it very difficult to keep relevant jobs filled. What is your advice? A) These sorts of questions are unlawful under the Genetic Information Nondiscrimination Act. B) Under the circumstances, clean family medical history of a bona fide occupational qualification, so this question is acceptable.

A) These sorts of questions are unlawful under the Genetic Information Nondiscrimination Act.

Hooter's Restaurant is hiring and onboarding new waitresses. You are the HR director. A manager complains to you that one of the new hires who "looks foreign" but states that she is authorized to work in the United States has presented certain documents to establish identity and work authorization that are unusual. You examine the documents yourself and verify through comparison that these are lawful documents that satisfy the Form I-9 requirements. However, the manager continues to complain, stating that he has always required a Green Card, and this employee should be made to use a Green Card as well. He overrides your advice and fires the employee on the spot. If the employee sues alleging an abusive document practices under the immigration laws, is she likely to prevail? A) Yes, she will likely prevail. An employer cannot require specific documents from an employee where the documents presented satisfy I-9 requirements and reasonably appear to be genuine and to relate to the person. B) No, she will not prevail. An employer is required by law to obtain and review a Green Card for all foreign applicants. C) No, she will not prevail. An employer is permitted to choose the documents used by the employee to support an I-9.

A) Yes, she will likely prevail. An employer cannot require specific documents from an employee where the documents presented satisfy I-9 requirements and reasonably appear to be genuine and to relate to the person.

Select the four major exceptions to "at will" employment under current American law (include exceptions even if they are not recognized in Alabama). A) Employers may not terminate employees on trivial grounds such as not liking the employee. B) A contract of employment. C) Statutory exceptions such as anti-discrimination and anti-retaliation laws. D) Failure by the employer to give adequate notice of intent to terminate. E) Employee's serious need for gainful employment. F) The common law doctrine of promissory estoppel / implied contract. G) Seniority or length of service with an employer. H) Public policy-based exceptions such as refusing to engage in illegal conduct.

B) A contract of employment. C) Statutory exceptions such as anti-discrimination and anti-retaliation laws. F) The common law doctrine of promissory estoppel / implied contract. H) Public policy-based exceptions such as refusing to engage in illegal conduct.

Which of the following requirements must be met for a valid waiver of an employee's rights under the Age Discrimination in Employment Act pursuant to the Older Workers' Benefit Protection Act? Select all that apply. A) Court must approve the format of the waiver agreement before it is signed. B) Employee must be provided with a thing of value in connection with the waiver. C) Employee must be provided a review period of 21 days to consider the waiver. D) Employee must have first filed an EEOC charge. E) Employee must be advised to consult an attorney. F) Employee must be provided with a 7 day revocation period after signing the waiver.

B) Employee must be provided with a thing of value in connection with the waiver. C) Employee must be provided a review period of 21 days to consider the waiver. E) Employee must be advised to consult an attorney. F) Employee must be provided with a 7 day revocation period after signing the waiver.

Sally is a full-time UAH student whose parents pay for most of her living expenses. Still, to have some extra cash, she delivers pizzas for Dominoes in her free time. She pretty much picks her shifts, but she does have to select from available shifts posted by Dominoes. She drives her own vehicle to deliver pizzas. She has to wear a Dominoes uniform, has to use an electronic device provided by Dominoes to collect payments, and gets some very basic training on being nice to customers. Drivers do not have any particular rules to follow when driving, but there is a company policy that pizzas be delivered within 30 minutes of the order, and drivers are informed that they must meet this time-limit. Dominoes has a manager who assigns which drivers get which deliveries. Drivers are reimbursed for their mileage and get to keep tips, but otherwise get no wages. Dominoes says the drivers are independent contractors, not employees. Sally wants to know if she is misclassified under the "economic reality test." She wants to know if she is actually an employee. What's the best answer? A) Sally is likely misclassified as an independent contractor (meaning she is an employee) because Dominoes controls where she takes the pizzas and how quickly she must get them there. B) Sally is likely misclassified as an independent contractor (meaning she is an employee) because she has no other customers other than Dominoes' customers and is economically dependent upon Dominoes for them; she delivers a product that is not her own; and the work she is performing for Dominoes is integral to Dominoes' business. C) Sally is not misclassified. Because the company is not paying her directly except for her mileage, a court cannot find she is an employee. To find employee status, a company must be paying the worker. D) Sally is not misclassified. She is not economically dependent upon this work. She's primarily a student and just earning money on the side. Furthermore, she is permitted to "pretty much" pick her own shifts and only works when she wants to work,

B) Sally is likely misclassified as an independent contractor (meaning she is an employee) because she has no other customers other than Dominoes' customers and is economically dependent upon Dominoes for them; she delivers a product that is not her own; and the work she is performing for Dominoes is integral to Dominoes' business.

You end up quitting your job at Hooter's; it's just too stressful. Now you find yourself as the office manager at a small painting company. The company has just four employees, one of whom is you. The rest of the seven people who do work for the company are all classified as independent contractors. One day, a qualified African American painter asks to be considered for a contractor position. You check with the boss, who tells you "not no but hell no - tell him the job isn't open to blacks." After you gather your jaw up off the floor, you start to wonder how this is all going to shake out when you tell the applicant what the boss said. What is the most likely scenario? A) Scientific studies show that small groups of workers on tight-knit teams perform the job better when they share common characteristics such as race and sex. Given that there is a scientific basis for the discrimination, it is likely lawful, an the applicant will lose any lawsuit. B) The applicant will likely prevail in a race discrimination claim under 42 U.S.C. 1981. Section 1981 prohibits race discrimination by all manner of employers, even race discrimination affecting contractors rather than employees. C) The applicant cannot prevail because he is an independent contractor rather than an employee, and no law protects contractors from race discrimination. D) The applicant will lose the lawsuit because the race discrimination prohibitions of Title VII of the Civil Rights Act of 1964 only apply to employers with 15 or more employees.

B) The applicant will likely prevail in a race discrimination claim under 42 U.S.C. 1981. Section 1981 prohibits race discrimination by all manner of employers, even race discrimination affecting contractors rather than employees.

During a strike, a unionized worker for Yulantra Energy posts a Facebook status update that criticizes Yulantra for its unsafe practices and disregard for the rights and health of workers. The Yulantra manager for whom the employee works calls the worker and terminates her on the spot, citing a company policy prohibiting employees from "publicly criticizing the Company, its management or its employees." The employee is upset and files a charge with the National Labor Relations Board. What is most likely to occur? A) The employee clearly violated the company policy, and nothing in the National Labor Relations Act prohibits companies from having reasonable policies applicable to its employees. The employee will lose. B) The company will have to reinstate the worker, because a policy of this type violates Section 7 of the National Labor Relations Act. Under that Section, employees are permitted to engage in concerted activity for their mutual aid or protection. C) Social media activity has nothing to do with the workplace, and the employee has a right to engage in free speech under the First Amendment. Therefore, the company will lose.

B) The company will have to reinstate the worker, because a policy of this type violates Section 7 of the National Labor Relations Act. Under that Section, employees are permitted to engage in concerted activity for their mutual aid or protection.

You have now quit both your Hooter's job and the paint company. Time for an HR role where you are less likely to get sued. You apply to work at a law firm as an HR consultant whose services can be contracted out to firm clients who need advice. During the interview, mention to the hiring partner that you are pregnant. He tells you that is no problem, as the firm has a separate "mommy track" for young women just like you. The hours are more flexible and the pay is close to the same, but slightly less. He doesn't really give you a choice between this "mommy track" and any other track, and in any event, you need whatever job you can find. Two years later, you realize that men hired in your same position who were not assigned to the "mommy track" are making a good bit more than you. In fairness, you realize they are putting in more hours than you, but both you and the men are salaried, so the wage differential isn't just a mathematical product of hours worked. Moreover, you've worked from home plenty and not tracked the hours. You think your work product is as good as his and your clients like you. You decide to file an EEOC charge alleging pay discrimination in violation of Title VII of the Civil Rights Act. What does the EEOC investigator likely tell you? A) You have stated a claim for pay discrimination, but the 180-day statute of limitation has run on your claim since the initial decision was made 2 years ago. Therefore, you cannot recover any back wages. B) The hiring manager's initial decision to place you on the "mommy track" was sex discrimination because it was based upon a stereotypical assumption about your likely role as a new mother, and each paycheck you have received since constitutes a new act of discrimination, meaning under the Lilly Ledbetter Act, you can recover back wages. C) The "mommy track" is not illegal discrimination. It is a friendly gesture by the employer and is considered good for working women.

B) The hiring manager's initial decision to place you on the "mommy track" was sex discrimination because it was based upon a stereotypical assumption about your likely role as a new mother, and each paycheck you have received since constitutes a new act of discrimination, meaning under the Lilly Ledbetter Act, you can recover back wages.

You are still the HR Director at Hooter's Restaurant. The manager comes back to you and explains that two well-qualified gay men have applied to be waitresses. He tells you that he knows Hooter's will not permit him to hire males for a server position, but he also believes this is illegal. He further relates that he is sick and tired of breaking the law to help out prejudiced owners he does not support. You believe this is a protected complaint by the manager. In other words, you believe he is complaining in good faith about what he believes to be sex discrimination. But you also have to do something about the applicants. What is the best way to resolve the situation? A) Tell the manager he must follow Hooter's policy whether he likes it or not. If he refuses, he himself will be fired. B) Treat the manager's complaint about Hooter's policy as protected activity. Contact higher management to investigate the complaint. In the meantime, alert a higher-up manager to the situation and ask for guidance on what to do with the applicants. C) Tell the manager to ask the gay men if they intend to dress as females while on shift. If they say yes, hire them.

B) Treat the manager's complaint about Hooter's policy as protected activity. Contact higher management to investigate the complaint. In the meantime, alert a higher-up manager to the situation and ask for guidance on what to do with the applicants.

In order to be eligible to take leave under the Family Medical Leave Act, an employee must meet which of the following requirements (select all that apply). A) Work for an employer with 100 or more employees within 75 miles of the worksite. B) Work for an employer with 50 or more employees within a 75 mile radius of the worksite. C) Have been employed with the employer for a total of at least 12 months. D) Be employed in an executive, administrative, or professional capacity. E) Have performed at least 1,250 hours of service within the preceding 12 months. F) Exhaust all paid leave before requesting FMLA. G) Demonstrate that the burden on the employee in being denied the leave is greater than the burden on the employer in granting the leave.

B) Work for an employer with 50 or more employees within a 75 mile radius of the worksite. C) Have been employed with the employer for a total of at least 12 months. E) Have performed at least 1,250 hours of service within the preceding 12 months.

A disparate impact claim is one in which a facially-neutral employment practice has a disproportionate impact on individuals in a protected class, causing them to be discriminated against unfairly. Which of the following scenarios might be most likely to result in a successful disparate impact claim? A) A policy that all bank tellers have no felony convictions for theft. B) A policy that all applicants for police officer jobs be able to chase criminals 100 yards. C) A paid parental leave policy giving the leave to primary caregivers only. D) A policy that fishermen enjoy fishing

C) A paid parental leave policy giving the leave to primary caregivers only.

Ashley is a sales clerk employed by Ruby Jewelry. She rings up merchandise at a cash register. She is paid $10 per hour. This week, Ashley worked 50 hours. What is she entitled to be paid and why? Select the best answer. A) Ashley is entitled to $400. The hours over 40 are not compensable under the Fair Labor Standards Act because that Act sets a 40 hour workweek. B) Ashley is exempt from the Fair Labor Standards Act as an administrative employee, so she is entitled to nothing more than the product of her hourly rate multiplied by her time. C) Ashley is nonexempt, and must be paid her regular hourly rate for all hours worked, plus an additional half-time premium for all hours over 40 within a 7-day workweek. Ashley is due $10 per hour for all 50 hours, plus an additional $5 per hour for the hours over 40. Her total pay due is $550.

C) Ashley is nonexempt, and must be paid her regular hourly rate for all hours worked, plus an additional half-time premium for all hours over 40 within a 7-day workweek. Ashley is due $10 per hour for all 50 hours, plus an additional $5 per hour for the hours over 40. Her total pay due is $550.

Select the three major tests used to determine an individual's status as either an employee or an independent contractor. A) Substantial evidence test. B) Common law nuisance test. C) Economic realities test. D) Burden-shifting test. E) Fundamental fairness test. F) McDonnell Douglas framework. G) IRS 20-factor test. H) Control test

C) Economic realities test. G) IRS 20-factor test. H) Control test

To win a claim of employment discrimination, an employee must carry the burden of proving her allegations by what degree of proof? A) Complete certainty. B) Clear and convincing evidence. C) Preponderance of the evidence. D) Beyond a reasonable doubt.

C) Preponderance of the evidence.

A motion for summary judgment is used to accomplish what during a lawsuit? A) To request an award of damages. B) To seek discovery from other witnesses and to see any documents they have. C) To request that the court throw out the lawsuit before it reaches a jury. D) To seek reinstatement and back pay.

C) To request that the court throw out the lawsuit before it reaches a jury.

Which of the following is NOT permitted under the Age Discrimination in Employment Act? Select only one. A) Discriminating on the basis of age where age is a bona fide occupational qualification. B) Requiring mandatory retirement for high level executives with certain pensions. C) Favoring older workers over younger ones. D) Favoring younger workers over older ones.

D) Favoring younger workers over older ones.

The workforce of Yulantra Energy is unionized. The union leaders discover that Yulantra Energy's nuclear power reactors leak an extremely dangerous amount of radiation - far above the levels established as safe for workers by the Nuclear Regulatory Commission. After failed negotiation with Yulantra, the union leaders decide to implement a strike. Workers strike for four weeks, during which time Yulantra brings in replacement workers, who cross the picket line and keep the plant operating, despite striking union workers attempting to block their paths and yelling threats at them. Finally, after four weeks, Yulantra (under pressure from the Nuclear Regulatory Commission) gives in and makes a deal with the union to end the strike and install protective encapsulation to prevent further radiation leaks and to bring the radiation levels to within federally-mandated standards. However, when the union workers who walked the picket line try to re-enter the plant, Yulantra managers refuse. The union workers file a grievance with the National Labor Relations Board. What is likely to happen? Select the best answer. A) The union workers who worked the picket lines are not entitled to be reinstated. America is an at-will country, and Yulantra could justifiably articulate a legitimate, nondiscriminatory reason for failing to rehire them - i.e., they took action contrary to the company's legitimate interests and cost the company a lot of money. B) The union workers are not entitled to be reinstated because they were replaced during the course of the strike, and it would be unreasonable to require that the newly hired workers be laid off due to no fault of their own. C) The NLRB will rule in favor of the workers because they were conducting a permissible strike under the National Labor Relations Act and because they were protesting an unfair labor practice, they are entitled to reinstatement. D) The NLRB will side with Yulantra because the striking union workers engaged in serious misconduct on the picket line, and therefore forfeited their right to reinstatement, even though they were otherwise entitled to be reinstated as unfair labor practice strikers.

D) The NLRB will side with Yulantra because the striking union workers engaged in serious misconduct on the picket line, and therefore forfeited their right to reinstatement, even though they were otherwise entitled to be reinstated as unfair labor practice strikers

After you file your EEOC charge against the law firm where you were assigned to the "mommy track," the hiring partner comes into your office and confronts you. He doesn't understand why you would do this to someone who was just "trying to help." He says that he wants to prove to you that he has always been your number one fan. He asks you to eat dinner with him that night. Reluctantly, you agree. He gets really drunk at dinner and ends up asking you to kiss him goodnight, in blatant violation of the firm's well-disseminated anti-harassment policy on which both of you have been trained. When you tell him no, he gives you one more chance and warns you that your job depends on it. When you again refuse, he fires you on the spot. You go back to the EEOC to add this to your charge of discrimination. Do you prevail on your new sexual harassment claim? A) No. Because the law firm had a sexual harassment policy and you did not first complain to your employer, the law firm will have a Faragher affirmative defense available. B) No. While this behavior was inappropriate, it does not meet the "severe or pervasive" standard.He only tried to kiss you, and it only happened twice. C) No. Because this episode happened on your own time and not on law firm property, the law firm is not responsible. D) Yes. This is quid pro quo harassment by a supervisor followed by tangible employment action (i.e., a termination). There are no defenses to this sort of harassment; because of the tangible employment action that followed the harassment, the law firm is strictly liable for its supervisor's actions.

D) Yes. This is quid pro quo harassment by a supervisor followed by tangible employment action (i.e., a termination). There are no defenses to this sort of harassment; because of the tangible employment action that followed the harassment, the law firm is strictly liable for its supervisor's actions.

Exempt employees (FLSA) are...

Executive Administrative Professional

Mandatory retirement ages are ___

Illegal except for high-level employees with substantial executive authority

ADEA BFOQ

Must establish that the age limit is reasonably necessary for business. 1.All or substantially all individuals over a that age are unable to perform job function. 2.Some people over that age possess a dis-qualifying trait that cannot be ascertained except by age.

Types of covered FMLA leave

New child Serious health condition Qualifying Exigency Leave Injured service member

Prohibits age discrimination in providing benefits to employees. •Can't provide older workers benefits that are less than those provided to younger workers— •Unless cost greatly exceeds cost to younger workers.

OWBPA

disabled individual" means any otherwise qualified person "who (1) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment."

Rehabilitation act

Employers can lower amount of benefits it offers employees so long as lower benefits—

•Comply with ERISA and •Are made across the board.

Administrative employee duties test

To qualify for the administrative exemption, the employee's primary duty must both— §Be the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer's customers. §Include the exercise of discretion and independent judgment for matters of significance.

Creative professional duties test

To qualify for this exemption, a creative professional employee's primary duty must involve work requiring— invention, imagination, originality, in a recognized field of artistic or creative endeavor.

Reasonable accommodationsare decided on ___basis.

case-by-case

Negotiations and agreements between management and labor about wages, hours, and other terms and conditions of employment. §Term for the contract that is reached between the employer and the union about workplace issues.

collective bargaining

OWBPA ___employers to base benefits on cost differences associated with age.

permits

§Strikers of any type who engage in ___ in the course of a strike may be refused reinstatement to their former jobs.

serious misconduct

•Except for asking whether the applicant can perform job-related functions, a covered entity__ conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

shall not

Unreasonable accommodations may include

§Changing a primary job responsibility or eliminating an essential function of the position. §Lowering production standards. §Providing paid leave beyond that which the employer provides to similarly situated employees. §Providing personal use items the employee needs to accomplish daily activities both on and off the job, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices. §Excusing a violation of uniformly applied conduct rule that is job related and consistent with business necessity (for example, rules about violence, stealing, or destruction of property). §Bumping other employees or creating a position. §Promoting the employee. §Helping the employee become qualified for a vacant position. §Reassigning the employee in way that may violate a seniority system, unless there are special circumstances or exceptions. §Excusing past misconduct (before the employee requested an accommodation), even if it is the result of the employee's disability. §Changing an employee's supervisor.

Mental health conditionsare generally serious if they—

§Continue over extended period. §Require periodic doctor visits. §Interfere with employee's ability to perform regular daily activities.

Executive employee duties test

§Have as their primary duty the management of either— •The enterprise in which the employee is employed. •A customarily recognized department or subdivision of the enterprise. §Customarily and regularly direct the work of two or moreother full-time employees (or the equivalent). §Have the authority to hire or fire other employees or provide recommendations on the hiring, firing, advancement, promotion, or other change in the employment status of other employees that is given weight.

Examples of workers not subject to FLSA

§Independent contractors. §Volunteers. §Interns. §Trainees.

3 categories of reasonable accommodation

§Job application process that enable a qualified applicant with a disability to be considered for the job. §Work environment or to the way the job is customarily performed that enable a qualified individual with a disability to perform the job's essential functions. §Employment conditions so that disabled employee can enjoy benefits and privileges of employment equal to those of similarly situated employees without disabilities.

Reasonable accommodation may include:

§Making existing facilities used by employees readily accessible to and usable by individuals with disabilities. §Job restructuring. §Part-time or modified work schedules. §Reassignment to a vacant position that is equivalent in pay and status, or as close to equivalent as possible, if the employee is qualified for that position. §Acquisition or modification of equipment or devices. §Appropriate adjustment or modifications of examinations, training materials, or policies. §Providing qualified readers or interpreters. §Permitting the use of accrued paid leave. §Providing unpaid leave. §Modifying a workplace policy (including policies relating to no-fault attendance, internal transfers, and telecommuting). §Altering supervisory methods, such as the method of communicating assignments. §Providing equal access to information communicated in the workplace. §Providing equal opportunity to participate in employer-sponsored training. §Other similar accommodations.

FLSA non exempt employee rights

§Must be paid minimum wage of at least $7.25 an hour. §Must be paid overtime for any hours over 40. §Overtime calculated at 1.5 time regular pay rate.

To be classified as exempt from FLSAminimum wage and overtime requirements, employee's job duties and compensation must satisfy both—

§Salary basis test. §Duties test.

Salary test requirements

§Satisfies a minimum threshold. •The employee must receive a predetermined amount at least equal to $684 a week, paid on a salary or fee basis. §Is paid on a "salary or fee basis." •The predetermined amount cannot be subject to reduction because of the quality or quantity of the employee's work. •The employer cannot take any improper deductions from the predetermined amount.

Learned professional duties test

§To qualify for the learned professional exemption, the employee's— •Primary duty must be the performance of work requiring advanced knowledge. •Advanced knowledge must be in a field of science or learning. •Advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. §Generally, the employee must have an education beyond a bachelor's degree to do the job.

§Federal government contractors are required to provide ___number of paid sick days:

•7 work days or 56 hours.