Mgt 4523 Final

Title VII of the Civil Rights Act

1. Application - to employers who have 15 or more employees for 20 or more calendar weeks who are engaged in interstate commerce. In current or preceding calendar year. 2. Coverage- Race, color, gender, religion, national origin (note not age or disability) (private/public employees, US employees working for american companies abroad and Non US citizens working in US are covered)

Employers' Defenses to Age Discrimination claims Come back

1. BFOQ 2. Mandatory Retirement 3. Reasonable factor other than age (must be job-related) 4. Economic Concerns - Defense based on benefit plans and seniority systems - "Same actor" defenses - Defenses based on waivers under the Older Workers Benefit Protection Act of 1990

Tipped employees

2.13/hr - Have to make more than 30 a month in tips. - Employer must make up the difference if the tips do not equal the usual minimum wage

Minimum Wage

7.25/ Hour -If the covered employee is an apprentice, learner or disabled worker, then under certain circumstances, they may receive less than the minimum wage if the employer obtains a certificate issued by the Department of Labor's wage and hour administrator.

Employers' Defenses to Age Discrimination claims - Mandatory Retirement

A small number of high‑level employees with substantial executive authority can be subjected to compulsory retirement at age 70. This exception is a very narrow one and does not allow for compulsory retirement policies for mid‑level managers - Persons in selected occupations in which age is a bona fide occupational qualification, such as police and firefighters, have been subject to mandatory retirement

Eligible employees may utilize FMLA for:

1. For the birth and care of the new born child of the employee 2. For the placement with the employee of a son or daughter for adoption or foster care 3. To care for an immediate family member (spouse*, child, or parent) with a serious health condition. 4.To take medial leave when the employee is unable to work because of a serious health condition 5.take up to 12 weeks of FMLA leave "because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee" is on or has been called to active duty in the Armed Forces in support of a "contingency operation" (generally a war or similar combat operation.) - National Defense Authorization Act (* Note the Obergefell v. Hodges decision regarding same sex marriage - every state has to allow the same sex marriage to care for them in serious health conditions)

Employer Defenses to Disparate Treatment Lawsuit

1. Legitimate, nondiscriminatory defense (after plaintiff establishes case, there is a rebuttable presumption of discrimination that the employer can overcome to justify the employer's actions.) 2. BFOQ - - available only for disparate treatment cases involving gender, religion, and national origin - not race or color or disparate impact cases. 3. Business necessity - only good as a defense in a disparate impact case

The ADA defines "disability" as

"(a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of having such impairment; (c) or being regarded as having such an impairment."

The OWBPA (older workers benefit protection act) codifies the EEOC's

"equal cost principal," requiring that firms provide benefits to older workers which are at least equal to those provided to younger workers, unless the cost of their provision to older workers greatly exceeds the cost of provision to younger workers.

Employees under 20

$4.25/hr for first ninety days of employment. After that they must be paid regular minimum wage

Reconstruction Civil Rights Acts - Section 1985

(Ku Klux Klan Act) addresses conspiracies to interfere with or deprive the civil rights of others.

The key to whether an act constitutes sexual harassment is if the behavior is unwelcome and based on sex (gender). Theories upon which an action for sexual harassment may be brought:

- "quid pro quo" - "hostile environment" sexual harassment.

Recognize Gender- Plus discrimination

- - hiring women but maybe not those who are married or who have preschool-aged children. - Do not allow Customer or employee preference to factor in the decision in hiring or not hiring women.

Louisiana Pregnancy Discrimination Law

- Applies to employers that have more than 25 employees - No minimum time employed - Six weeks job-protected leave for a normal pregnancy - Up to 4 months job-protected leave if there are complications in the pregnancy evidence by a physician's statement

Covered Disabilities include

- Hearing, vision, or speech impairment - Paralysis - Learning disability -- Impairments that are episodic or in remission if, when active, it would limit a "major life activity."

Two types of FLSA coverage - Enterprise Coverage - For the following businesses the 500,000 minimum does not apply

- Hospitals institutions primarily engaged in the care of the sick, aged, mentally ill or disabled who reside on the premises - schools for children who are mentally or physically disabled or gifted - preschools, elementary and secondary schools and institutions of higher education - federal, state and local government agencies.

Discrimination - Race

- Illegal under Title VII and state law. For state law to apply, require that the employer have at least 20 employees for 20 or more calendar weeks. (15 in 20 weeks = Federal law) - The law intended in response to discrimination against blacks, though applies equally to any race. Remember the case of a black man not allowed to have a beard. Because of PFB (pseudofolliculitus barbae) such an employer's policy might have a disparate impact upon black males.

Not covered disabilities include

- Impairments of short duration -Temporary impairments - Illegal drug use

FMLA Rights- Employee

- Right to 12 weeks job protected leave (not necessarily paid leave) - can be intermittent leave. - Right to same job upon return. - Right to maintain all health benefits but with 15 day written notice to employee, if employee's portion is not paid, can be dropped from plan. - Right to bonuses and any other unconditional pay increase.

To be eligible for FMLA benefits and employee must:

- Work for a covered employer - Have worked for the employer for a total of 12 months - Have worked at least 1250 hours during the previous 12 months in the past 5 years - Worked at a location where at least 50 employees are employed by the employer within 75 miles -50 or more employees must work for an employer for each working day for 20 or more weeks in the current or preceding calendar year.

Reconstruction Civil Rights Acts - Section 1983

- prohibits anyone acting under the color of state law to deprive a person of their rights

ADA- The determination of whether an individual is "otherwise qualified" should be based on the following factors:

- the nature of risk (how the disease is transmitted) - the duration of the risk (how long the carrier is infectious) - the severity of the risk (potential harm to third parties) - probabilities the disease will be transmitted and will cause varying degrees of harm.

Waiver of ADEA Rights- In order to satisfy this requirement, the waiver must meet all of the following requirements:

1. The waiver must be written in a manner calculated to be understood by an average employee; 2. The waiver must specifically refer to ADEA rights or claims (but may refer to additional acts such as Title VII or applicable state acts); 3. The waiver only affects those claims or rights which have arisen prior to the date of the waiver, i.e. the employee is not waiving any rights acquired after the date of execution;

Federal construction and service contracts minimum wage

10.10

Americans with Disabilities act

ADA applies to private employers having 15 or more employees for each working day in 20 calendar weeks in the current or previous year. - An employer may not make any employment decision on the basis of an individual's disability

What constitutes "reasonable accommodation"?

An applicant or employee is otherwise qualified for the position if, with or without reasonable accommodation, the worker can perform the essential functions of the position. - Reasonable accommodation in this context generally means the removal of unnecessary restrictions or barriers. - Reasonable accommodation is further defined as that which does not place an undue burden on the employer.

ADA Basics

An employer may not classify an applicant or employee because of her or his disability in a way that adversely affects her or his opportunities or status. 1. Employers may not impose standards or criteria which discriminate against or screen out employees or applicants on the basis of their disability, unless those criteria can be shown to be job-related and consistent with business necessity. 2. The ADA does not require that an employer hire a disabled individual who is unable to perform the essential functions of the job with or without a reasonable accommodation.

FMLA- Serious Health Condition

An illness, injury, impairment, or physical or mental condition that involves either: 1. inpatient care (e.g., overnight stay at a hospital) 2. outpatient care requiring continuing treatment by a health care provider and a period of incapacity due to a health condition lasting more than 3 consecutive days. 3. A chronic (e.g. asthma, diabetes) or permanent (e.g., Alzheimer's , a severe stroke, terminal cancer) health condition requiring intermittent care from a health care provider.

Two types of FLSA coverage - Individual Coverage

An individual is covered if the individual employee's job involves interstate commerce directly. (such as an over-the-road truck driver traveling from state to state) or moving or preparing goods for interstate commerce, including phoning and using the mail, then the individual is covered.

ADA - Specific Regulatory Requirements:

As long as the applicant or employee is otherwise qualified for the position, with or without a reasonable accommodation, the Acts prohibit any adverse employment decision that is made solely on the basis of the disability. An employee may be able to claim discrimination on the basis of his or her disability if he/she can prove that: 1. that he/she is disabled; 2. that he/she is otherwise qualified_ for the position; 3. if an accommodation is required, that the accommodation is reasonable ; and 4. that he/she suffered an adverse employment decision, such as a termination or demotion.

Employment at will

Can be fired or quit at any time without reasoning. State exceptions: - Discrimination - Being called to Military Service - Being called to jury duty - Political Opinions or Voting - Giving testimony in an LDOL investigation - Exercising right of Association - Wage Garnishment - Filing a Workers Comp Claim - Filing an Unemployment Compensation - Claim - Whistle-Blowing Federal Exceptions: - ADEA - FLSA - NLRA - OSHA - Title VII - ADA

Under the ADAAA, "Major life activities" include:

Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing - Under the ADAAA, "Major life activities" also includes the operation of certain "major bodily function"

Sub Minimum wage

Employees include, for instance, student-learners (vocational education students), full-time students in retail or service establishments, agriculture, or institutions of higher education, employees whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury, for the work to be performed.

Disparate Impact

Employer has a policy that is neutral on its face, but it has a negative impact upon someone who belongs to a Title VII protected class. Statistical rule of thumb is that the protected employee must fare at least 80% as well as the majority under the employer's policy. Defense to Disparate Impact Case? - Business Necessity Defense

Religious Discrimination

Employers may not discriminate in employment based on religion - either its practices or beliefs. - Employer must reasonably accommodate the employee's religious practices conflict unless to do so would create an undue hardship upon the employer

Pay Day

Failure to establish law is 1st and 16th. All employee who work for oil and gas, mining, public service corporations, manufactures. Must be paid every two weeks or twice a moth.

Requests for reasonable accommodation and employers response process

First, the disabled employee must provide notice to the employer of the disability and resulting limitations, if any. Once the request has been made, the employee has the responsibility to work with the employer to determine the most appropriate accommodation. -Once the request has been made, the employee has the responsibility to work with the employer to determine the most appropriate accommodation. - Failure of the employee to cooperate can preclude a claim under the ADA.

Discrimination - Racial Harassment

For an employer to be liable must show: 1. Harassment was unwelcome - based on race 2. So severe and pervasive that it altered the conditions of employment 3. Created an abusive environment 4. There is a basis for imposing liability.

Wages Payable Law - Vacation

For final paycheck purposes, earned vacation is a "wage". If earned in accordance with a policy established by the employer, vacation time must be paid and cannot be forfeited Use it or lose it?-have two weeks of vacation have to use it by the end of the year or they are gone. Are a valid policy

WAIVER OF ADEA RIGHTS

In connection with employee waivers of their rights to file discrimination actions under the ADEA, the OWBPA requires that every waiver must be "knowing and voluntary" to be valid.

Hostile Environment Sexual Harassment

In order to sustain a finding of hostile environment sexual harassment, it has generally been required that: - the harassment be unwelcome by plaintiff - the harassment be based on gender - the harassment be sufficiently severe or pervasive to - create an abusive working environment - the harassment affected a term, condition or privilege of employment, and - the employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action

Quid Pro Quo Sexual Harassment

In quid pro quo sexual harassment the employee is required to engage in sexual activity in exchange for workplace entitlements or benefits.

FMLA purpose

Intended "to balance the demands of the workplace with the needs of families." 1. Allows eligible employees to take up to 12 weeks of job-protected leave within a 12 month period for certain family or medical reasons. 2. 26 weeks to provide care for covered service-members with covered conditions 3. 12 month period generally measured forward from the first date an employee takes FMLA leave. (Starting FMLA eligibility based on when the FMLA event occurred Ex: suppose an FMLA event happens on January 27th, 2016 that is the first day of their year)

Employers' Defenses to Age Discrimination claims - Economic Concerns

It is likely to be more expensive under certain circumstances to maintain older workers than younger; so cutting the numbers of older workers may reduce costs in some firms. -A termination allegedly based on economic factors may constitute impermissible discrimination, however, when the economic reasons proffered serve merely to obscure the fact that age was the true determinant.

Title VII of the Civil Rights Act- Filing Claims

La. Commn on Human Rights (706 agency) - within 300 days of discriminatory event. Absent that, go to EEOC. If no reasonable cause is found by investigatory agency than the complainant gets a right to sue letter to bring to court within 90 days of receiving the letter. If reasonable cause is found, than parties can meet to conciliate the matter. Failing that it is brought to court and the court reviews it de novo. - if no 706 agency file within 180 days

ADA- What is a Major LIFE Activity?

May include basic elements of living such as breathing, walking, seeing, caring for oneself and working. -To be considered a disability, an impairment must prevent or severely restrict the individual from doing activities that are of central importance to one's daily life. An impairment need only limit ONE major life activity to be considered a disability.

Employees can be exempt or non-exempt -To be exempt from overtime pay, the white collar professional:

Must be salaried - at least $455/week or $23,660 a year to 50,440 (970/week) - manage two or more employees, have hiring, firing and promotion authority or significant input, or if they have advance degrees or similar training and work in a specialized field of the operations, finance and auditing areas of a business...essentially the executive employee would have to have some independence in decision-making for the business.

R.S. 9:1515

OUTLINES WHAT AN EMPLOYER CAN DO IN PAYING THE FINAL PAYCHECK TO AN EMPLOYEE WHO HAS DIED - If there is a surviving spouse, an employer can pay a surviving spouse all wages due to that deceased employee - Must not have been a divorce or have had a divorce proceeding begun

Exceptions from both the wage and overtime provisions of FLSA

Outside salespeople, executive, administrative, and professional employees, including teachers and academic administrative employees in elementary and secondary schools - Employees of certain individually owned and operated small retail or service establishments not part of a covered enterprise. - Employees of certain seasonal amusement or recreational establishments, messengers, full-time students, employees of certain small newspapers, switchboard operators of small telephone companies, sailors employed on foreign vessels, employees engaged in fishing operations

FMLA applies if the employer has over 50 employees while ADA applies if the employer has

Over 15 employees

R.S. 9:1515 - If divorced or if no surviving spouse employer can

Pay any major child of the deceased employee - Payment can be made without opening a succession, having a court order or even a judgment or paying any inheritance taxes - Employer must forward an affidavit stating the name of the deceased, the amount paid, the name of the recipient, and a copy of the release document substantiating the release to the secretary of the Department of Revenue within ten calendar days of the release of the funds

R.S. 23:635

Prohibits an employer from penalizing an employee or deducting any sum of money as a fine or penalty from an employee's wages Exception: - If the employee damages property in the possession belonging to the employer or in the possession of the employer. - Deduction be no more than out-of-pocket cost to employer

Employers' Defenses to Age Discrimination claims - BFOQ

Proof includes: - the essence of the business requires the exclusion of the members of a protected class - all or substantially all of the members of that class are unable to perform adequately in the position in question, and - The age limit is reasonably necessary (there is a reasonable necessity - not whether it is reasonable) to the essence of the employer's business; and either -- All or substantially all of the individuals over that age are unable to perform the job's requirements adequately; or -- Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.

Wages Payable Law

Requires that employers pay employees who have separated from employment all "wages" within a specified time period. - Involuntarily Separated - sooner of 15 days or next regular pay day (if you decide to let them go you have to pay them by pay day) - Voluntary Separation - sooner of 15 days or next regular pay day for pay period in which separation occurred. (If the employee chooses to leave the day before pay day, the employer can decide to either pay them the next day or next pay period)

Number one claim filed with eeoc

Retaliation - race - gender (sex) - disability - age

FMLA Rights- Employers

Right to require medical certification - Can require status reports (no more than every 30 days generally) - Fitness for duty certificates. - Employer does not have to allow an employee back to work after FMLA on light duty. CAN require full release. - Can require 30-day advance notice of FMLA leave from employee if practicable and if leave was foreseeable - Right to second or third opinion. - Right to refuse return to key employee (top paid 10%)

Serious Health Condition

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive days combined... - with medical treatment including at least two in-person visits to a health care provider for treatment within a 30-day period, unless extenuating circumstances exist... - or one in-person visit and a regimen of continuing treatment, incapacity due to pregnancy, or incapacity due to a chronic condition. - Other medical conditions may also meet the definition of continuing treatment. - The in-person treatment must occur within 7 days of the first day of incapacity.

Know the distinction between Title VII and the ADEA

The ADEA is more lenient to employers who make adverse employment decisions. The ADEA allows an employer to rebut a prima facie case of age discrimination by identifying any "reasonable factors other than age" which motivated the decision.

Requirements to waive ADEA Rights Continued

The employee must be given a period of 21 days in which to consider signing a waiver, and an additional seven days in which to revoke the signature. Note that where a waiver is offered in exchange for an early retirement plan as opposed to some other consideration, the individual must have 45 days in which to consider signing the agreement; - If the waiver is executed in connection with an exit incentive (early retirement) or other employment termination program, the employer must inform the employee in writing of the exact terms and inclusions of the program.

Establishing an age discrimination case

The employee must establish the following four elements in order to persuade the court that she or he even has a claim for age discrimination: a. The employee is in the protected class; b. The employee was terminated or demoted; c. The employee was doing his job well enough to meet her or his employer's legitimate expectations; and d. others not in the protected class were treated more favorably

Pregnancy Discrimination of 1978

The employer can't: 1. Refuse to hire pregnant applicants; 2. Terminate an employee upon discovering the employee's pregnancy 3. Not provide benefits to pregnant employees on an equal basis with short-term disabilities of other employees; 4. Refuse to allow a pregnant employee to continue to work even though the employee wishes to do so and is physically able to do so. 5. refuse to provide the employee with lighter duty if needed, when such accommodations are made for employees with other short-term disabilities 6. eliminate the pregnant employee by moving her to a new job title with the same pay, and then eliminate the position in a job restructuring or reduction-in-force 7.Negatively evaluate an employee when the basis for the evaluation is the employer's own refusal or hesitation to assign equal work because the employee is pregnant and the employer feels the need to "lighten" the employee's load, though the employee has not made such a request.

Employers' Defenses to Age Discrimination claims - Reasonable Factor other than age

The employer must show that the adverse action was taken as a result of "reasonable factors other than age." - This allows employers to discriminate against protected persons for reasons which may have an adverse effect on older workers, such as dexterity or strength. - The factor must be job related if the distinction has a disparate impact on employees over forty.

ADA level of risk?

The standard for balancing the risk of harm to others against the employer's duties under the Acts is whether the employer can show that there is a direct threat to the health and safety of the potential employee or others.

WHAT ARE THE ESSENTIAL FUNCTIONS OF A JOB?

The term "essential" refers to those tasks which are fundamental, and not marginal or unnecessary, to fulfillment of the position objectives -Employers may not include in their job descriptions responsibilities which are incidental to the actual job, or duties which are not generally performed by someone in this position.

Requirements to waive ADEA Rights

The waiver of rights of claims may only be offered in exchange for some consideration in addition to anything to which the individual is already entitled (this usually involves inclusion in early retirement program); - The employee must be advised in writing to consult with an attorney prior to execution of the waiver (this does not mean that the employee must consult with an attorney, but must merely be advised of the suggestion.);

BFOQ available for religious employers.

Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer's particular normal business operations. - Title VII specifically permits educational institutions to employ those of a particular religion of they are owned in whole or substantial part by a particular religion.

What is an undue burden?

Undue hardship is not limited to financial difficulty but may also include any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. "the definition of undue hardship in the ADA is intended to convey a significant, as opposed to a de minimis or insignificant, obligation on the part of employers." -An employer does not have a responsibility to make a job convenient for an employee; however an employer does have a responsibility to reasonably accommodate an individual with a disability.

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

An employees religious beliefs must be *come back to and also check quiz*

accommodated if the belief is closely held and if the belief takes the place of religion in the employee's life. - No exception of undue hardship as it applies to religious beliefs.

Two types of FLSA coverage - Enterprise Coverage

all employees of a business will be covered if the business is engaged in interstate commerce and the business has an annual income of at least $500,000.

Discrimination based on ones color is

also prohibited. (light colored blacks may be discriminated against by other blacks.)

Reasonable accommodation need not be the

best possible solution, but must be sufficient to meet the needs of the individual with the disability. -The employer need not create a new job, nor modify a full time position in order to create a part time position, or modify the essential functions of the job. -Disabled employees are entitled to reassignment if they are qualified to fill vacant positions, even if he or she can no longer perform the essential functions of her or his own position.

Age Discrimination in Employment Act

cannot discriminate based on age - at least 40 . No longer have an upper end.

Age Discrimination - OWBPA (older workers benefit protection act)

concerns the legality and enforceability of early retirement incentive programs (called "exit incentive programs" in the Act), and of waivers of rights under the ADEA, and prohibits age discrimination in the provision of employee benefits.

What is undue hardship?

consider the nature of the employer's workplace, type of job needing accommodation, cost of accommodation, willingness of others to assist in accommodation, possibility of transfer of employee, what's done in similar situation, # of employees available for accommodation, and burden of accommodation upon union.

FLSA - Employee status

focus is on whether the alleged employee is economically dependent upon the business to which he or she renders his or her services or is in business for herself or himself. Five factors are analyzed: (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investment of the employer and alleged employee; (3) the degree to which the workers' opportunity for profit and loss is determined by the alleged employer (4) the skill and initiative needed for performing the job; and (5) the permanency of the relationship.

Disparate treatment

is treating the employee, who is a member of a protected class, differently from someone not in the protected class. For instance a person in a protected class applies for a job, is qualified for the job that has an opening, despite qualification, is rejected, position is still open

Gender discrimination - Equal Pay Act

must pay equal wages unless differences in pay because of seniority, a merit system, system that measures earnings by quantity or quality of production or any other differential based on any factor other than sex.

Reconstruction Civil Rights Acts - 42 USC 1981

prohibits purely private discrimination in contracts, including employment contracts

For sexual harassment to be actionable, it must be sufficiently

severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Severe and pervasive is not an isolated occurrence (which is not serious enough to warrant undue concern.)

An employer may not

terminate or refuse to hire an employee with a disability who is "otherwise qualified" to perform the essential requirements of his or her position.