Employing fewer than 10 employees so the ADEA does not apply Which employer action is a

possible employer defense to a claim asserted under the federal Age Discrimination in
Employment Act (ADEA)?

Integrated enterprise Two corporations have combined their management and operations into a
single place with 30 total employees. Which type of business relationship is formed that now
requires both companies to comply with federal employment law?

Does the employee meet the eligibility requirements? An employee claimed the need for
special treatment based on Title VII of the Civil Rights Act of 1964. What is the first question a
human resources professional should ask to determine if this law applies to the employee?

Economic realities test Which test is used to distinguish an independent contractor from an
employee?

Pervasive conduct
Unwelcome conduct Which two types of conduct make a company liable for race-based
harassment?

Yes. Because the agency is a government entity, the employees are protected from drug searches
unless there is reasonable suspicion that they are engaged in drug use. A government agency
wants to drug test its employees, but it is concerned about legal ramifications of possible privacy
concerns regarding its testing. To address these concerns, the firm conducts pre-employment
drug screening and random drug testing of employees each quarter. Should the firm be
concerned about legal challenges to its policy?

Medical records Which type of information is covered by the Fair Credit Reporting Act?

An individual HR employee who fails to check a new worker's eligibility to work in the United
States may face civil liability. Which penalty is imposed by the Immigration Reform and Control
Act?

Layoffs due to a severe unforeseen loss of capital A manufacturing firm with 370 employees
plans to close one of its plants and lay off 56 employees. To facilitate the plant closure and allow
its employees time to seek other employment, the firm gives the employees 40 days' notice of the
impending closure. Because of financial troubles, the firm is not providing severance packages.
Which circumstance allows the firm to take these actions without violating the Worker
Adjustment Retraining Notification (WARN) Act?

Judicial authority
Executive authority
Rule-making authority Which three types of statutory authority does the National Labor
Relations Board (NLRB) have?
Provide the NLRB with contact information of workers eligible to vote in the election What
are the employer's responsibilities after the National Labor Relations Board (NLRB) has
authorized a union election?

The union may call a strike.

The employer may lock out the union workers.
Either party may resume discussions with the other. Which three outcomes are legally possible if
parties cannot resolve one or more mandatory issues during collective bargaining negotiations
and reach a deadlock?

The Federal Mediation and Conciliation Service must be notified. After good faith negotiations,
an employer and a labor union cannot resolve an issue and have reached an impasse. What does
the National Labor Relations Act (NLRA) require in this situation?

requiring workers to work more than eight hours per day or more than forty hours per week. This
is not so. The FLSA does require that overtime be paid, and that it is earned on a weekly, not
daily, basis. There is a misconception that the FLSA prevents employers from

continual training requirement

Under this requirement, employers are required to provide training to workers on a periodic basis
and whenever an employee is hired or transferred to a new job assignment.The ______________
is the most frequently violated OSHA regulation.

Contributory negligence-the worker's errant conduct that contributes to the injury

Assumption of the risk-the worker knew and accepted the risk of potential injury; and
Fellow servant rule-another employee, not the employer, caused the injury.
Additionally, there were no national safety standards for the workplace, so work safety
regulations and remedies to injured workers were uneven. In common law, an injured employee
could make a tort claim against an employer for negligence if the employer's breach of the duty
to provide a safe workplace caused the worker's injury. However, three employer defenses
severely limit the relief an injured worker could obtain. These are:

The plant shutdown or layoffs are due to a natural disaster

The firm experiences a severe and unforeseen loss of capital
When the company is faltering and giving notice would prevent obtaining capital to continue
operations The WARN allows for an employer to escape the notice requirements if:

100 employees to provide detailed written advance notification of plant closings and mass
layoffs to affected employees, union bargaining units, and state and local government officials at
least 60 days prior to the closing. Employers are prohibited from plant closings or mass layoffs
until the end of the 60-day notice period. WARN requires employers with over

the negative referral provided by the former employer was in response to an employee's claims
of discrimination or acts of whistleblowing. The U.S. Supreme Court held that the term
"employees" as used in the retaliation section of Title VII extends to former employees. In a
retaliation referral claim, a former employee must show that
were inadequate.1 According to a survey done by Salary.com, some 90 percent of employee
performance appraisals

- case involving disparate treatment discrimination arising out of performance appraisals actually
involving a lack of appraisals.
- a woman lawyer in a prestigious New York City law firm was able to show that over a twelve-
year period she received, after repeated requests, only one performance appraisal before she was
terminated, while during the same time period two younger male counterparts each received nine
appraisals. Moreover, the sole appraisal Esterquest received did not include a plan for
remediation of her performance deficiencies or a path to promotion, which was included in other
employee's evaluations. Under these circumstances she was able to show age and gender
discrimination. Esterquest v. Booz, Allen & Hamilton

Citizenship for specific federal jobs and public policy functions

English proficiency to the standard necessary to carry out essential business operations The
IRCA prohibits employers from discriminating in employment on the basis of nation of origin or
citizenship, with some exceptions. Unlike Title VII, the IRCA does allow an employer to
discriminate in favor of a citizen over a legal alien when both are equally qualified. There are
two bona fide occupational qualifications which come into play under IRCA:

- the Supreme Court has provided some leeway in using race and gender in employment
decisions without invoking reverse discrimination. For example, in voluntary affirmative action
plans, private employers may lawfully use race and gender in employment decisions where there
has been a historical "manifest imbalance" in the workplace when that effort is limited in
duration and scope and when it is not a quota system United Steelworkers v. Weber, 443
U.S. 193 (1979); Johnson v. Santa Clara County Transportation Agency 480 U.S. 616 (1987)

- reverse discrimination suit

- the Supreme Court upheld Michigan's voter-approved Proposal 2, which made unlawful any
discrimination or preferential treatment based upon a class characteristic in public education,
government contracting, and public employment. This had the specific effect of undoing
Michigan's university admissions rubrics, which allowed for consideration of race and gender in
evaluating college applications. The general effect of this was to put into question whether other
university applications systems nationwide, which allow for preferences, are valid Schuette v.
Coalition to Defend Affirmative Action, __ U.S. __(2014)

- candidates for firefighting positions in New Haven, which was seeking to promote the hiring of
non-white firefighters, were required to complete a validated qualification test. When the test
revealed that non-white applicants did not perform as well as white candidates, the city threw out
the test as a qualifying mechanism and started the hiring process anew.
- The Supreme Court held that New Haven had violated Title VII because the test was valid and
the decision not to use it was "race-conscious." Ricci v. DeStefano, 557 U.S. 557 (2009)

- a white medical school applicant challenged the University of California at Davis' policy of
setting aside 16% of admission spots for "disadvantaged" minority applicants who could also
compete in the standard applicant pool. Mr. Bakke was qualified to be admitted, and he argued
that the strict 16% standard was an impermissible quota and unfair.
- While not dismissing the principles of AA, the Supreme Court agreed that the AA method used
by the university was unlawful, as it gave an unwarranted advantage to minority applicants.
Regents of the University of California v. Bakke (Bakke)

is not permissible. Rigid quotas or reserving positions for a specific protected class of
individuals who are less qualified

cancel a contract or debar a contractor from participating in bidding for future contracts.
Additionally, the DOL may ask the attorney general to seek equitable relief to enforce orders,
seek that the Department of Justice pursue criminal penalties where fraud is involved, publish the
names of offending contractors, and/or recommend to the EEOC that judicial proceedings be
commenced under Title VII. Sometimes a contractor will run afoul of federal anti-
discrimination statutes or Executive Order 11246. The Department of Labor may

- in 1964 the New York State Commission for Human Rights had determined the sheet metal
workers' union had systematically excluded African-Americans from the union and from
obtaining apprenticeships.
- After 18 years of not complying with court orders to stop discrimination, the Supreme Court
affirmed a lower court order, entered in 1975, imposing an AA plan remedy upon the union
which required a fund be set up, and other action taken, to assist in reaching the goal of 29
percent non-white membership in the union. The duty to comply with imposed AA plans
evaporates once the problem has been addressed. Local 28, Sheet Metal Workers v. EEOC

regulation of AA. The OFCCP conducts extensive research on worker demographics and creates,
implements, and enforces a myriad of regulations related to implementing the goals of AA.
The Office of Federal Contract Compliance Programs (OFCCP), within the Department
of Labor, oversees the

federal contracts entered into after 1 December, 2003, and worth more than $100,000 require
contractors and subcontractors to undertake AA for specified categories of veterans, which
includes a priority referral requirement for employment openings. This legislation also requires
employers to report on the number of current employees who are veterans. The Vietnam Era
Veteran Readjustment Assistance Act of 1974 carries the same purpose for veteran workers.
Amendments to the act require that

fifty or more employees and contracts valued at $50,000 or more must take "affirmative action to
employ qualified individuals with disabilities." The Rehabilitation Act of 1973 prohibits
federal government contractors from discriminating on the basis of disability. This act requires
that contractors, including subcontractors, with

any federal contract for services with a value over $10,000 must include anondiscrimination
clause with which the contractor must comply. Executive Order 11246 requires that
In 1969, President Nixon authorized the implementation of the Philadelphia Plan, which, for the
first time, required contractors to establish specific goals and timetables for correcting
imbalances in employment practices. The creation of preferences and goals has led to the forty-
year-old debate over whether AA is simply a way to establish unlawful quotas for race, ethnicity,
or gender. Philadelphia Plan

In 1965, President Johnson issued Executive Order 11246, which required that contractors and
their subcontractors doing business with the federal government must have a nondiscrimination
clause in contracts and abide by its terms. The Order requires government contractors to "take
affirmative action" toward prospective minority employees in all aspects of hiring and
employment. Executive Order 11246

On March 6, 1961, Kennedy signed Executive Order 10925, which mandated that managers of
federally-funded projects "take affirmative action" to eliminate bias in employment practices.
This changed the effort to eliminate employment discrimination from the passive to the active.
Executive Order 10925

On 25 June, 1941, President Franklin D. Roosevelt issued Executive Order 8802, which declared
that full participation in national defense programs by all U.S. citizens, regardless of race, creed,
color, or national origin was federal government policy. Executive Order 8802

expensive, disruptive, wide-ranging in significance, or require an alteration of the fundamental

structure of a business operation. Accommodations that present an undue hardship are those
that are

he or she will not be considered disabled. For example, twin pilots who suffered from vision
problems, which were fully corrected by prescription lenses, were not considered disabled for
ADAAA purposes. In contrast, for example, a person with a seizure disorder who is taking
medication and is therefore seizure free is still a covered employee under the ADA. This
mitigating circumstance—the medication—does not disqualify him. It further provides that
impairments that last only a short period of time qualify for protection under the ADAAA for the
duration of the disability. In other words, the disability may be temporary. This is an express
repudiation of court cases holding that a disability must be permanent for ADA protection to
apply. ADAAA clarifies that if a person can be made substantially whole through corrective
devices

passed the ADA Amendments Act. In response to several United States Supreme Court cases
that narrowly construed the definition of disability, in 2008 Congress

one who, with or without an accommodation, possesses the skills, talents, education, and other
abilities necessary to carry out the essential functions of the job. a qualified individual is

it makes the decision not to hire the disabled person based on the disability or a reluctance to
accommodate the disability. Under the ADA, if an employer is considering two qualified
applicants for a job, one of whom is disabled, the employer will violate the ADA if
- Defined the scope of "record of impairment" and "regarded as disabled" criteria of the
Rehabilitation Act
- The Nassau school board fired a teacher who had recently recovered from a documented third
bout of tuberculosis, for fear that the disease would return and pose a risk to school children.
- The Supreme Court held that the teacher was protected under the Act because "[a]llowing
discrimination based on the contagious effects of a physical impairment would be inconsistent
with the basic purpose of § 504, which is to ensure that handicapped individuals are not denied
jobs or other benefits because of the prejudiced attitudes or the ignorance of others." School
Board of Nassau v. Arline 1987

entitled to the same legal remedies as a legal worker, including back pay and reinstatement.
The EEOC takes the position that illegal immigrants are

is discriminatory. Submitting only a certain nation of origin group to eVerify but not U.S.
citizens also violates Title VII. Requesting specific documents from aliens to establish
work eligibility, but allowing U.S. citizens to choose which documents will support the right to
work

established the "political function doctrine" Sugarman v. Dougall, 413 U.S. 634 (1973)

there is no discriminatory purpose or effect. Nevertheless, the English-only rule must be justified
by "business necessity." Some examples of this include the need to communicate effectively with
coworkers, supervisors, and customers, to address safety requirements, and to protect employees
in emergency situations. Consequently, English-only rules need to be narrowly drafted to meet
the specific business need. Title VII allows for English-only rules under certain circumstances
where

Most federal civil service positions require U.S. citizenship for public policy reasons. Indeed, the
Supreme Court in Sugarman v. Dougall, 413 U.S. 634 (1973), established the "political function
doctrine," which holds that Title VII is not violated when citizenship is a requirement for non-
elected governmental positions when those positions require formulation, execution, or review of
public policy issues. In other words, legal aliens may be excluded from consideration for such
positions. Finally, the Immigration Reform and Control Act prohibits employment discrimination
on the basis of citizenship in firms with four or more employees. political function doctrine

$100,000 in business with the federal government to ensure a drug-free workplace through
education and enforcement of drug-free policies. The federal Drug Free Workplace Act of
1988 requires federal contractors doing more than ________________

Intercepting by electronic means any employee wire, oral, or electronic communications

Accessing, without permission, stored electronic communications The Electronic
Communications Privacy Act (ECPA) prohibits employers from purposefully:

$100,000 require contractors and subcontractors to undertake AA for specified categories of

veterans, which include a priority referral requirement for employment openings. Amendments
to The Vietnam Era Veteran Readjustment Assistance Act of 1974 require that federal contracts
entered into after 1 December 2003, and worth more than _________________

the employer's efforts, the cost of accommodation in terms of wages and administration, the type
of job involved, and the size of the employer. When looking at whether an accommodation
is a hardship, courts look to

Substantially younger In age discrimination cases, it is important to note that a favored younger
employee may be over 40 years old. The key is that the favored employee must be
______________ than the complaining employee, not that the favored employee is outside the
protected class.

Nominal
From the text, "The EEOC reports that 30 percent of accommodations cost nothing, while almost
20 percent cost the employer under $50, and 50 percent involve expenses of $500 or less. Even
for the smallest employer, these expenses are nominal." The EEOC reports that the majority
of accommodations made by employers are:

over $10,000 Federal government and federal contractors doing _________ in business have to
take affirmative action to hire qualified disabled persons.

Difficulty walking or climbing stairs

Over 30 million Americans have a difficult time walking or climbing stairs. According to
the U.S. Census Bureau, the largest claim for disability comes from:

At least one
The ADAAA provides that a disability need not limit all major life activities, merely one. How
many life activities must an impairment limit to be considered a disability?

Particularly simple and straightforward : not require extensive analysis The ADAAA requires
that the determination of whether an employee has a disability be ___________ and
_____________.

15
From the text, "Under the ADA, it became illegal for any firm with 25 (now 15) or more
employees to discriminate in employment against a qualified person with a disability." Under
the Americans with Disabilities Act, it is illegal for a company with ____ or more employees to
discriminate in employment against qualified persons with disabilities.

11
From the text, "The Privacy Act has carved out 11 exceptions to this policy that provide for a
common sense approach to revealing information which is necessary for the functioning of
government, in response to a court order, or for national security." The Privacy Act has carved
out ___ exceptions to its policy which provide for a common sense approach to revealing
information which is necessary for the functioning of government, in response to a court order,
or for national security.
Collection : dissemination The intrusion upon seclusion tort deals with the _____________ of
information about an individual, rather than the _____________ of that information, and can
involve a physical or electronic invasion.

A consumer report
(Section 1681 of FCRA) Any written, oral, or other communication of any information by a
consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit
capacity, character, general reputation, personal characteristics, or mode of living which is used,
or expected to be used, or collected in whole, or in part, for the purpose of serving as a factor in
establishing the consumer's eligibility for... employment purposes... is known as:

A workforce reduction at a single employment site during a 30-day period which is not caused
by a plant closing. It involves workforce reductions of at least 50 full-time employees, when they
comprise at least 33% of full-time employees, or the reduction of at least 500 employees. What
is a "mass layoff"?

suffer termination, layoffs longer than six months, or a 50 percent reduction in work hours.
Under WARN, affected employees are those who

100+
From the text, "WARN requires employers with over 100 employees to provide detailed written
advance notification of plant closings and mass layoffs to affected employees, union bargaining
units, and state and local government officials at least 60 days prior to the closing." The
WARN requires employers with ________ employees to provide detailed written advance
notification of plant closings and mass layoffs to affected employees.

the burden is on the former employer to affirmatively prove that the statement or information
was truthful. Truth is an absolute defense to defamation claims, but

4+
From the text, "The IRCA rendered it unlawful for an employer employing four or more workers
to knowingly hire or retain an undocumented worker." Under the IRCA, it is illegal to hire
or retain undocumented workers if you employ how many workers?

Low-paying
We know race discrimination continues based on data showing that some races earn less money
than others. This data cannot simply be explained by cultural factors. The problem of
continued race discrimination is evident by reference to the labor market itself, with persons of
color being much more likely to work in __________ jobs than whites.

Department of Justice
The Department of Justice pursued litigation for discrimination claims until 1972. During its first
few years, the EEOC lacked enforcement authority and had power only to investigate
discrimination and then refer meritorious claims to the _________________ to pursue through
litigation.
The subject class characteristic is reasonably necessary to the normal operation of that particular
business or enterprise.What is a bona fide occupational qualification?

McDonnell Douglas, Corp. v. Green

This case involved Mr. Green's activist activies against the defense contractor.
_______________is the foundational case that establishes the notion of pretextual
discrimination.

Civil Rights Act of 1991 Congress passed the ________________ to codify the concept of
disparate impact discrimination as articulated in Griggs v. Duke Power.

tort claims
A tort is a wrongul act which infringes on the rights of another. If an employer engages in
wrongful behavior towards an employee, the employee may have a civil claim against the
employer. Employees may claim wrongful termination through _________ or constructive
discharge.

44
As stated in the text, at least 44 states recognize this exception. How many states recognize
the public policy exception?

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

It is viewed after, not during, transit

From the text, "Searching email is not prohibited by the EPCA because it is viewed after, not
during, transit. Because email is a permanent record and is discoverable in court, employers have
a strong interest in protecting themselves from errant emails. The general rule is that when the
employer is providing the computer and email service, it is free to read employee email messages
pursuant to a business purpose." Why is searching emails not prohibited by the EPCA?

Biannual scheduled drug tests

From the text, "In 1991, Congress passed the Omnibus Transportation Employee Testing Act
(Omnibus Act), which authorizes and regulates drug testing of employees in the airline, railroad,
trucking, and public transportation sectors. The Omnibus Act requires pre-hire testing and post-
hire random drug screens and sets procedures for ensuring drug test accuracy, chain of custody
rules, and employee discipline procedures." Which of the following is not a requirement of the
Omnibus Transportation Employee Testing Act (Omnibus Act)?

State law
From the text, "For private employees, drug testing is governed primarily by state law, with most
states allowing for pre-employment testing and requiring post-accident testing of employees."
What governs drug testing of private employees?
$100,000
The federal Drug Free Workplace Act of 1988 requires federal contractors doing more than
$100,000 in business with the federal government to ensure a drug-free workplace through
education and enforcement of drug-free policies. The federal Drug Free Workplace Act of
1988 requires federal contractors doing more than _____________ in business with the federal
government to ensure a drug-free workplace through education and enforcement of drug-free
policies.

Tort
From the text, "The common law definition of a tort is the commission of a civil wrong which
causes someone to suffer loss or harm resulting in legal liability. Invasion by an employer into
the private affairs of an employee may be the tort of invasion of privacy." Invasion by an
employer into the private affairs of an employee may be the ______ of invasion of privacy.

The release of private information by federal agencies about public employees

From the text, "Federal employers must ... comply with the provisions of the Privacy Act of
1974, which governs the release of private information by federal agencies about public
employees." What does the Federal Privacy Act of 1974 govern?

The former employer

The former employer has the burden to affirmatively prove the statement or information was
truthful. The complaining former employee is not required to prove the statement was false.
To whom falls the burden to determine if an employer referral was truthful or not?

Federal contract of over $100,000 and work performed in the United States within the last 120
days
From the text, "A covered contractor is one who has an agreement to do certain type of work for
the federal government valued at more than $100,000 for work that is performed in the United
States and within a period of at least 120 days." By 2009, the Department of Homeland
Security started requiring covered contractors to enroll in E-Verify. What defines a covered
contractor?

Eight
From the text, "The regulations require the employee to contact the appropriate federal agency
within an eight-day window from the time of notice." If E-Verify gives a tentative
nonconfirmation response, how many days does the employee have to contact the appropriate
federal agency?

Three : one
From the text, "IRCA requires employers to retain the Form I-9 in a file, separate from the
standard personnel file, for a period of three years after hire or one year after termination,
whichever is longer." IRCA requires employers retain the Form I-9 in a file, separate from the
standard personnel file, for a period of ________ year(s) after hire, or ________ year(s) after
termination, whichever is longer.
a valid passport, a border crossing identification card, a permanent resident card (green card), or
a reentry permit. Under the INA a documented alien possesses the proper identification for
admission into the U.S. That documentation includes

ERISA
From the text, "The Health Insurance Portability and Accountability Act was passed in 1996 as
an amendment to ERISA for the purpose of establishing standards in the health industry for the
gathering, processing, retention, and disclosure of private health information." The Health
Insurance Portability and Accountability Act was passed in 1996 as an amendment to which act?

90
From the text, "The employer provides this information to an employee within ninety days of the
beginning of coverage in a document called a summary plan document (SPD)." Under ERISA,
how many days from the beginning of benefits coverage does an employer have to provide a
summary document plan to the employee?

50+
From the text, "The FMLA governs leave for employees due to parental and medical necessity,
and applies to all government employers and private employers with fifty or more employees."
The Family Medical and Leave Act (FMLA) applies to all government and private
employers with how many employees?

only about 20 percent of the workforce. Affirmative action applies to

1) the position exists to perform the function; 2) there is a limited number of workers among
whom the function may be distributed; and 3) the task is highly specialized." A job function
may be considered essential for any of several reasons, including:

Seek external government funding

From the text, "Congress intended that an employer seek external government funding, apply for
tax incentives, and see if the disabled employee could bear some of the accommodation costs
before claiming undue hardship." What did Congress intend employers to do before claiming
undue hardship?

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

Four or more employees

The IRCA rendered it unlawful for an employer employing four or more workers to knowingly
hire or retain an undocumented worker. The Immigration Reform and Control Act prohibits
employment discrimination on the basis of citizenship in firms with:

Race : religion Nation of origin employment discrimination is often linked to ________ and
____________ discrimination because those factors are closely associated with a specific
country or ethnic group and often the same set of facts support the varied claims.
American life or law
Kennedy stated: "Next week I will ask the Congress of the United States to act, to make a
commitment it has not fully made in this century to the proposition that race has no place in
American life or law."John F. Kennedy made the proposition to Congress that race had no place
in:

The ultimate ideas about life, purpose, and death

Under Title VII, beliefs become religious beliefs when they are based on the ultimate ideas about
life, purpose, and death. For Title VII purposes, religious beliefs cover:

the EEOC looks at:

The frequency of the action
The severity of the unwelcome conduct
The physical or threatening nature of the harassment
The impact on the victim's performance Severity and Pervasiveness of Unwelcome Conduct

In the race and color context, virtually all race-based conduct may be eventually considered
unwelcome. This includes joking or playful banter, even where the victim is a participant,
because such conduct can quickly turn a workplace in a hostile work environment. Moreover,
while an occasional joke may be taken lightly, over time such banter can have a fatiguing effect
upon the employee to whom it is directed. The best policy is to strictly prohibit workplace race
or color joking. Unwelcome Conduct

The conduct must be unwelcome; and

The conduct must be sufficiently severe or pervasive to alter the terms and conditions of
employment in the mind of the victim and from the perspective of a reasonable person in the
victim's position. There are two requirements to trigger liability for race-based harassment:

bias against Muslims. EEOC statistics show that, annually, 20 percent of employee complaints of
religious discrimination involve

- age and seniority are "analytically distinct" from each other in the ADEA context.
- a paper company's decision to terminate an employee because his pension was about to "vest"
did not violate the ADEA. That is, the decision was made due to years of service and "vesting,"
not due to the employee's age.
- the Supreme Court noted that the ADEA was designed to eliminate practices based upon the
negative and unsupported age stereotypes of reduced performance and competence and that the
paper company's decision was not motivated by these considerations.
* Notwithstanding the Hazen case, and because of the high correlation between salary and age,
federal courts are not unified regarding the issue of whether RIF plans based solely on salary
constitutes disparate impact under the ADEA. Supreme Court in Hazen Paper Co. v.
Biggins, 507 U.S. 604

- Virtually every federal court hearing age discrimination claims has ignored the EEOC
regulation and concluded that the ADEA's protections do not provide a cause of action to
younger workers within the protected class who complained that older workers were treated
more favorably.
- The United States Supreme Court held that employers may always favor the old over the
young, even with both candidates being 40 years of age and older. Justice Souter wrote that "the
enemy of 40 is 30 not 50." The idea was that without this rule, all retirement and seniority plans
would be rendered null. General Dynamics Land Systems, Inc v. Cline

- When a supervisor has engaged in sexual harassment, the employer may, nevertheless, raise an
affirmative defense.
- The Supreme Court held that an employer may avoid liability for supervisor harassment by
proving affirmatively that: 1) the employer exercised reasonable care to prevent and correct the
harassment - through training and policy enforcement; and 2) the plaintiff unreasonably failed to
take advantage of the preventative or corrective opportunities that the employer provided.
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton,
524 U.S. 775 (1998)
This is often called the Ellerth/Faragher affirmative defense.

- The seminal case for hostile environment sexual harassment

- Vinson claimed Taylor, a bank vice president, had coerced her into having repeated sexual
relations with him. Vinson claimed Taylor also touched her in public, exposed himself to her,
and forcibly raped her multiple times. Vinson could not show the sexual relations resulted in any
tangible job action.
- The U.S. Supreme Court held, for the first time, that Title VII prohibits sexual harassment
which creates a hostile, intimidating work environment, even if the harassment does not cause a
direct financial injury.Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986)
(Meritor)

may still exist under the theory that the raise is designed to induce the employee to accept the
sexual advance. If after a rejected sexual advance an employee receives an unanticipated
favorable job outcome, like an unscheduled raise, a claim of quid pro quo sexual harassment

- An important area of gender discrimination is the stereotyping of how a male or how a female
should act.
- a highly qualified female employee, Hopkins, was entitled to relief under Title VII for being
denied promotion at a prestigious accountancy firm because she did not conform to traditional
views of how a woman should act at work. Price Waterhouse v. Hopkins

- The foundational case that established the notion of pretextual discrimination

- Green, an African-American mechanic at McDonnell Douglas in St. Louis, was laid off
following a downturn in firm business. Green believed his discharge was racially motivated and
became involved in several illegal worker demonstrations against the company. Later,
McDonnell Douglass advertised for job openings for mechanics and Green applied. He was
rejected on the basis of his involvement in illegal activity against the firm. Green sued under
Title VII, arguing the real reason for his job application rejection was his race and involvement
in civil rights matters.
- The U.S. Supreme Court ultimately heard the matter and developed the prima facie case for
determining if a proffered employer's reason for an adverse hire decision was merely pretext.
The U.S. Supreme court remanded the matter to the lower court to conduct a hearing under the
prima facie standards it established. McDonnell Douglas, Corp. v. Green.

The seminal case establishing the concept of disparate impact

- black workers were overtly limited to low-paying labor jobs, while higher-paying positions
were reserved for white persons
- U.S. Supreme Court found that, while no evidence existed that the imposition of the test
mandates were intended to be discriminatory, Duke Power had nevertheless failed to establish
that the tests were meaningfully connected to job performance.
- Congress passed the Civil Rights Act of 1991 to codify the concept of disparate impact
discrimination as articulated in Griggs v. Duke Power. Griggs v. Duke Power, 401 U.S. 424
(1971)

The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially
equal work in the same establishment from sex-based wage discrimination;
The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who
are 40 years of age or older;
The Americans with Disabilities Act of 1990 (ADA) (Title I and Title V), and its 2008
Amendments (ADAAA), which prohibit disability discrimination in the private sector;
The Rehabilitation Act of 1973 (Sections 501 and 505), which prohibit discrimination against
qualified individuals with disabilities who work in the federal government;
The Civil Rights Act of 1991, which allows for compensatory and punitive damages for
violations of Title VII; and
The Uniformed Services Employment and Re-employment Rights Act (USERRA), which
protects military personnel from employment discrimination. The EEOC conducts
enforcement litigation for several federal statutes in addition to Title VII of the Civil Rights Act
of 1964. These laws include:

employers' businesses operated in proximity to Native American reservations from preferring

Indians over others for jobs, nor does it prevent religious organizations or associations from
conducting their affairs. Title VII does not prevent

clearly employees but also those who "are susceptible to the kind of unlawful practices that Title
VII was intended to remedy," such as independent contractors. It includes U.S. citizens
employed by U.S. firms abroad, non-U.S. citizens employed in the U.S., and illegal aliens
working in the U.S. Title VII's application to employees includes those who are

federal, state and local government employers and employment agencies and labor unions.
Title VII also applies to

a year after a firm reaches the critical mass of 15 employers, even if the number of employees in
the next year falls below the minimum. The application of Title VII continues for
fifteen or more employees for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year Title VII covers employers who have

the landmark United States Supreme Court case which found a fundamental right to marry is
guaranteed to same-sex couples by the Fourteenth Amendment Obergefell v. Hodges, 576
U.S. ___ (2015)

Sherman Anti-Trust Act

From the text, "The Clayton Act prohibited the elimination of unions and expressly removed
union organizing efforts from the "anti-combination" language of The Sherman Anti-Trust Act."
The Clayton Act prohibited the elimination of unions and expressly removed union
organizing efforts from the "anti-combination" language in which act?

False
If, after a rejected sexual advance, an employee receives an unanticipated favorable job outcome,
like an unscheduled raise, a claim of quid pro quo sexual harassment may still lie under the
theory that the raise is designed to induce the employee to accept the sexual advance or overlook
an inappropriate advance. An aggressive sexual advance is made by a male boss to a female
subordinate and rejected. Later the female employee receives a raise. There is no colorable claim
of quid pro quo sexual harassment because the "victim" did not suffer a tangible job action.
True/False

Gender harassment
Sexual harassment does not necessarily involve sexual motive, sexual behavior, or requests for
sexual favors. Which of the following is always involved in a case of sexual harassment?

Sex
He did so in an attempt to defeat the legislation, as there existed a strong anti-women animus
among unions and supporters of the legislation who did not want women included in the
protections offered by Title VII. Before the final passage of the Civil Rights Act of 1964,
Virginia Democrat, Senator Howard W. Smith, inserted into the language of the legislation
defining the class of persons protected under the anti-discrimination provisions of Title VII the
word:

At-will doctrine
From the text, "In the private employer arena, an employee would have to look to public policy
exceptions and to the at will doctrine to determine if a case for retaliatory discharge is available
when an employee is terminated for engaging in speech the employer does not sanction." In the
private employer arena, an employee would have to look to the public policy exceptions and to
the _____________to determine if a case for retaliatory discharge is available.

Class
Title VII, as well as other federal anti-discrimination statutes, protects persons from retaliation in
the workplace for exercising rights under its provisions. Unlike disparate treatment based upon a
class characteristic, retaliation involves adverse job action based upon an employee's lawful
actions. For example, an employee cannot be subject to any negative job action for making a
claim of disparate treatment discrimination under Title VII. Ironically, claimants may not have a
sufficient case to make a showing that discrimination occurred, but might be able to sustain a
retaliation claim for raising the discrimination challenge in the first place, if the negative job
action is severe enough. Unlike disparate treatment based upon __________ characteristics,
retaliation involves adverse job action based upon an employee's lawful actions.

Griggs v. Duke Power

The seminal case establishing the concept of disparate impact is Griggs v. Duke Power, 401 U.S.
424 (1971). The seminal case establishing the concept of disparate impact is:

Pattern and practice discrimination

Pattern and practice discrimination is characterized by the types of imbalances and
discrimination exemplified in this situation. An employer may claim that 50 percent of
employees are non-white minorities or women. However, if the minority employees or women
are concentrated in low paying positions, and all the white employees hold high paying
managerial positions, this would be best described as:

One year
The application of Title VII continues for a year after a firm reaches the critical mass of 15
employers, even if the number of employees in the next year falls below the minimum How
long does the application Title VII continue after a firm has reached a critical mass of 15
employees?

20-factor Analysis A guide adopted by the Internal Revenue Service for determining if a
worker should be classified as an independent contractor.

ADA Amendments Act Passed in 2008, it amends the ADA by adding new protections for
employees with disabilities.

ADEA Age Discrimination in Employment Act

ADEA Waivers A statement from a retiring employee that he or she will not make a
personal ADEA claim against the employer in exchange for retirement incentives.

Abuse of Discretion An employer's failure to consider important and relevant facts; acting in an
arbitrary or capricious manner.

Adverse Job Action A negative job action that results from an employee's lawful actions.

Affirmative Action (AA) Any action taken by an employer to overcome discriminatory

effects of past or current practices that create barriers to equal employment opportunity.

Affirmative Action Plan "Plan that analyzes a workforce to determine whether protected
classes are underutilized in different job groups and describes how an organization will address
any underutilization that exists."
Age Discrimination Treating an applicant or employee less favorably because of his or her age.

Age Discrimination in Employment Act (ADEA) Enacted in 1967, it protects employees who
are 40 years of age and older.

Agency A contract relationship between a principal and an agent whereby the principal
authorizes the agent to work on his or her behalf and with power to bind the principal.

Americans with Disabilities Act (ADA) Employers with 15 or more employees are
prohibited from discriminating against people with disabilities. In general, the employment
provisions of the ADA require equal opportunity in selecting, testing, and hiring qualified
applicants with disabilities; job accommodation for applicants and workers with disabilities
when such accommodations would not impose "undue hardship;" and equal opportunity in
promotion and benefits.

Anti-female Animus An environment of animosity toward women.

Appropriation of Image or Likeness A type of tort in which an employer uses the name, image,
or likeness of an employee for commercial purposes in a way that is not described in the job
description.

Arbitration A procedure for resolving collective bargaining impasses by which an arbitrator

(third party) choose a solution to the dispute.

Assumption of the Risk An employer defense that states an employee knows and accepts
the risk of potential injury in a certain position.

BFOQ (Bona Fide Occupational Qualification) Job requirement that an employee be a particular
religion, sex, or national origin that is reasonably necessary to business operations. For instance,
it is assumed that an opening for a Baptist minister at a local Baptist church would be filled by a
minister who is actually a person who celebrates the Baptist religion and not, say, the Episcopal
religion.

Back Pay Monetary compensation for a plaintiff's lost earnings.

Bona Fide Occupational Qualification (BFOQ) A reasonable employment qualification that

an employer is allowed to consider when making decisions about hiring and retaining employees.

Business Necessity A legitimate business purpose that justifies an employment decision as

effective and necessary.

Case Law The law as laid down in the decisions of the courts (distinct from statutes or other
sources of law).

Civil Law Laws that deal with the rights of people rather than with crimes.
Civil Rights Act of 1964 Enacted in 1964, it prohibits race discrimination in employment.

Clayton Act Enacted in 1914, it prohibits the elimination of unions.

Closed Union Shop An illegal requirement that an employee be a union member.

Collective Bargaining The negotiation process between unions and employers.

Color Skin pigmentation characteristic of race, especially other than white.

Common Law Principles developed over centuries as a result of legal decisions made by judges
in individual cases.

Common Law Agency A test that classifies a worker as an employee if the employer
maintains the right to control the method of work performed.

Common Law Criminal Conspiracy A combination of two or more individuals planning to

accomplish an unlawful purpose.

Community of Interests A community of people who align themselves with a common

interest.

Comparable Worth Theory The notion that men and women should receive equal pay when
they perform work that requires comparable skills and responsibilities.

Comparative Evidence Evidence of discrimination that is found by comparing two

similarly situated employees who were treated differently because of a class characteristic.

Compensatory Damages Monetary compensation necessary to replace a plaintiff's losses.

Compensatory Time An option for public employers to allow time off for employees instead of
payment.

Complaint A formal allegation against a party .

Compliance Requirement A mandate that all employers comply with all safety and health
requirements issued by the Department of Labor.

Concerted Activity Any effort by employees to join together to seek improvement in working
conditions.

Conciliation Process where a third party acts as an intermediary between the parties to a labor
dispute, helping them to reach a settlement.

Conglomerate A highly diversified firm that has multiple businesses with no relationships.
Consent Decree An agreement between two parties to resolve a dispute.

Consolidated Omnibus Budget Reconciliation Act (COBRA) Enacted in 1986, it allows an

employee to extend company health care benefits for up to eighteen months after he or she leaves
a job.

Constructive Discharge Resignation of an employee because an employer allows working

conditions that are no longer tolerable for any reasonable employee.

Consumer Reporting Agency (CRA) An entity that collects and provides information about
persons for use in credit and/or employment evaluation.

Continual Training Requirement A mandate that all employers provide training to workers
on a periodic basis and whenever an employee is hired or assigned to a new job.

Continuous Leave A type of leave in which an employee is absent from work for a
continuous length of time.

Contract A legally binding agreement between two parties.

Contributory Negligence An employer defense that an employee's errant conduct

contributed to a workplace injury.

Course of Employment Any action by an employee that furthers an employer's business.

Covenant of Good Faith A presumption that each party in a contract will deal with each
other in good faith and fairness.

Covered Employer An employer that is engaged in a commerce industry and employs fifteen
or more employees.

Covered Employment Agency An agency that regularly procures employees for at least
one covered employer; subject to employment law regulation.

Customer Discriminatory Preference An unacceptable pretext of discrimination in which an

employer uses race as the basis for a business decision in order to please customers.

Defamation Communicating false statements that harm a person's reputation.

Defined Benefit Pension Plan A type of pension plan that provides a fixed amount payment upon
retirement.

Defined Contribution Pension Plan A type of pension plan in which an employer sets aside a
certain amount each year for the employee, to be distributed upon retirement.
Direct Evidence Real, clear evidence of discrimination that requires no inference or
consideration to prove its existence.

Disability A physical or mental condition that hinders an employee's movement or activities.

Discovery Procedures for gathering facts prior to the time of trial in order to eliminate the
element of surprise in litigation.

Disparate Impact Discrimination Discrimination in which a plaintiff claims not that the
employer intentionally discriminated, but rather the employer's procedures, policies, or practices
have the effect of creating an unnecessary obstacle to employment opportunity for a protected
class.
Washington v Davis 1976

Disparate Treatment Theory of discrimination based on different treatment given to individuals

because of their race, color, religion, sex, national origin, age or disability status.
McDonnell-Douglas v Green 1973

Drug Free Workplace Act Enacted in 1988, it requires federal contractors to enforce drug-free
policies.

Drug Testing A method of testing for an employer to prevent the use of drugs among its
employees.

Dual Purpose Mission Occurs when an employee conducts personal and work business at the
same time; subjecting the employer to liability for the employee's actions

Due Diligence Reasonable steps taken by an employer to ensure that applicants are eligible to be
hired.

E-Verify An online tool administered through the U.S. Citizenship and Immigration
Services (USCIS) and used by employers to verify the validity of documents presented by new
hires.

Economic Realities Test A test that classifies a worker as an employee if the employee is
substantially economically dependent on an employer.

Economic Strike A stoppage of work based upon a union's frustration that management will
not meet its demands for improvements in wages, hours, and benefits.

Electronic Communications Privacy Act (ECPA) Enacted in 1986, it prohibits employers from
intercepting or accessing employee communications.

Employee One who performs services under the direction and control of another.
Employee Polygraph Protection Act Enacted in 1988, it prevents employers from using
polygraph tests for recruiting or retention purposes.

Employee Retirement Income Security Act (ERISA) Enacted in 1974, it protects worker
benefits and encourages employer management of retirement funds.

Employer One who employs the services of others in exchange for wages.

Employment-at-will Doctrine The predominant rule governing employer-employee relations that

states that an employer may terminate an employee at any time, for any legal reason, without
incurring liability.

English-only A rule established by an employer that only allows English to be spoken in the
workplace; Title VII allows for this rule under certain circumstances where there is no
discriminatory purpose or effect.

Equal Employment Opportunity Commission (EEOC) The federal agency that enforces
federal anti-discrimination laws and oversees all federal equal opportunity in employment
regulations.

Equal Pay Act (EPA) Passed in 1963, it requires nearly all employers to pay men and women
equally for the same work.

Escalator Principle A provision of USERRA that requires an employer to place a returning

veteran in positions that he or she may have attained, absent the military leave.

Essential Functions The skills, talents, and education necessary to carry out a job.

Ethnicity Traits, background, allegiance, or association.

Executive Order 11246 Issued in 1965, it requires that government contractors take
affirmative action toward prospective minority employees in all aspects of employment.

Exempted Employee Employees who are fully or partially free from FLSA provisions.

Explicit Contract (Also known as "express contract") A verbal or written agreement in

which the parties state exactly what they agree to do.

Fair Credit Reporting Act Enacted in 1970, it regulates reporting agencies' collection,
correction, dissemination, and use of consumer credit information .

Fair Credit Reporting Act (FCRA) Requires employers take specific steps prior to requesting
or using a consumer report (disclosure, written permission, notice of adverse action, right to
dispute).
Fair Labor Standards Act (FLSA) Enacted in 1938, it protects workers from unfair wages,
limits abusive overtime practices, and prevents child labor.

False Claims Act (FCA) Enacted in 1863, this federal law imposes liability on entities that
defraud governmental programs.

False Light A type of tort in which an employer publishes statements about an employee that
are untrue and hurt the employee's reputation.

Family and Medical Leave Act (FMLA) Enacted in 1993, this federal law governs leave for
employees due to parental and medical necessity.

Federal Anti-trust Law A law that prevents anti-competitive behavior within local
commerce.

Federal Injunction A legal remedy that allows a court to order individuals to refrain from
harmful acts.

Federal Mediation and Conciliation Service (FMCS) Established by Taft-Hartley, an

agency to help management and laborers settle labor contract disputes.

Federal Whistleblower Statute Enacted in 1982, it protects contractor employees from

employment discrimination or retaliation for reporting company violations of the law.

Fellow Servant Rule An employer defense that another employee, not the employer, caused a
workplace injury.

Fiduciaries An entity that acts as a guardian or caretaker.

First Written Warning Second step in a disciplinary process, which advises an employee that
work behavior must change, lays out steps that have already been taken to advise the employee
of the deficit, and describes steps that need to be taken to improve performance and remain
employed.

Four-fifths Rule The simplest and most common way of estimating adverse impact by
ruling a screening device as discriminatory if its selection rates of a protected class are less than
80% of the majority.

Free Riders An employee who does not belong to a union, but benefits from union
representation.

Frolic and Detour An employee's physical departure from the job in order to further his or
her own interests and not the employer's.

Front Pay Monetary compensation in lieu of reinstatement.

Gender Discrimination The stereotyping of how a male or how a female should act.

Gender Plus Discrimination Discrimination that results when an employer classifies employees
on the basis of gender, plus another characteristic.

General Duty Clause (under OSHA) Requires employers to provide their employees with a safe
and hazard-free place of employment.

Going and Coming Rule A legal principle that removes an employer's liability from
employees' actions going to and from their place of employment.

Good Faith A concept that requires a mutual obligation of both parties to participate actively
in negotiations by demonstrating intent to resolve a dispute.

Health Insurance Portability and Accountability Act Enacted in 1996, it establishes standards in
the health industry for gathering, processing, retaining, and disclosing private health information.

Hostile Work Environment As defined by the Equal Employment Opportunity Commission

(EEOC), a work environment in which an individual or individuals are subjected to a pattern of
harassment "when submission to or rejection of this conduct explicitly or implicitly affects an
individual's employment, unreasonably interferes with an individual's work performance, or
creates an intimidating, hostile, or offensive work environment."

"Hot Cargo" Agreements A voluntary agreement in which a neutral employer agrees to cease
doing business with another employer who deals directly with the firm in question.

I-9 A form enacted under the IRCA that documents employee identity and right to work in
the U.S. (specifies acceptable documents).

IRCA - Immigration Reform & Control Act (1986) Immigration Reform and Control Act

Illegal Bargaining Subject A bargaining subject that cannot legally be implemented into a
collective bargaining agreement.

Illegal Immigrants A foreigner who has entered the country unlawfully.

Immigration Reform and Control Act of 1986 (IRCA) Enacted in 1986, it prohibits
employers from knowingly hiring undocumented workers and requires them to verify eligible
workers within three business days of hiring.

Immigration and Nationality Act of 1952 (INA) Enacted in 1952, it centralizes and organizes
U.S. immigration law.

Impairment Any loss or abnormality of a person's physical or mental state.

Impasse A deadlock reached by two bargaining parties whereby an issue cannot be
resolved.

Implied Contract A legally binding agreement which is created, not through formal contract
negotiation and documentation, but by the actions of the employer and the employee.

Implied Covenant of Good Faith and Fair Dealing A presumption that each party in a contract
will deal with each other in good faith and fairness.

Independent Contractor A worker who is not subject to wage, discrimination, tax, or

liability laws.

Independent Living Movement A movement of people with disabilities working toward

self-motivation, self-respect, mainstreaming in society, and equal opportunity.

Injunctive Relief A court order that prohibits a defendant from certain actions.

Integrated Enterprise A business environment in which operations of two or more employers are
so intertwined that they can be considered as a single employer for purposes of federal statutory
coverage and liability.

Intelligence Tests Standardized assessments designed to assess human ability to learn or

understand or to deal with new or trying situations.

Intentional Infliction of Emotional Distress An employee's claim that an employer terminated

an employee in an intentionally reckless or outrageous manner that caused serious emotional and
psychological damage.

Intentional Interference with a Contract An employee's claim that a third party pressures the
employer to terminate an employee without cause.

Intermittent Leave A type of leave in which an employee is intermittently absent from work.

Intrusion Upon Seclusion A type of tort in which an employer intrudes upon an employee's
private information.

Job Group Analysis A tool that groups jobs within an organization by responsibilities and
potential and then analyzes characteristics of each employee in the job group.

Joint Employer Two entities, not engaged in an integrated enterprise, that each exert
control over an employee.

Joint Ownership Right of ownership shared by two or more owners such that on the death
of an owner his or her right passes on to surviving owner(s), the last survivor becoming the full
owner.
Judicial Affirmative Action A court-ordered affirmative action plan.

Judicial Review The power of the Supreme Court to consider whether a law complies with
the Constitution.

Labor Management Relations Act of 1947 Enacted in 1947, it curbs union overreaching by
protecting employee rights and prohibiting wildcat strikes.

Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) Enacted in 1959, it

creates a union member "bill of rights" in order to empower union members and reduce union
corruption.

Law A binding set of rules for human behavior established by legitimate authority.

Lock Out An employer's temporary work stoppage initiated during a labor dispute.

Major Life Activity A daily activity that an average person can perform with little or no
difficulty.

Mandatory Bargaining Subject A required bargaining subject that involves wages, benefits,
hours, and layoff procedures.

Mass Layoff A workforce reduction at a single employment site during a 30-day period which
is not caused by a plant closing.

Mediation A procedure for resolving collective bargaining impasses by a mediator (third

party with no formal authority) who acts as a facilitator and go-between in the negotiations.

Medical Testing A method of testing for an employer to discover information about its
employee's impairments or health.

NLRA National Labor Relations Act

National Labor Relations Act (NLRA) Enacted in 1935, it establishes workers' rights to
form unions, collectively bargain, and strike.

National Labor Relations Board A federal administrative agency that administers the
provisions of the NLRA.

National Origin Location of birth.

National Origin Discrimination Harassment Harassment that includes offensive comments about
an employee's national origin.

Negligent Hiring A claim in which the employer knew or should have known about an
employee's history of violence or untrustworthiness.
Negligent Referral A claim in which an employer has provided an untrue reference that omits
information about an employee's dangerous and/or criminal behavior.

Negligent Retention A claim that arises when an employer fails to terminate an employee when
it is apparent that he or she poses a danger to others.

Norris-LaGuardia Act Enacted in 1932, it governs the interplay between unions and businesses.

Occupational Safety and Health Act (OSHA) Enacted in 1970, it governs safety in all
businesses and created the Department of Labor and the Occupational Safety and Health
Administration.

Official Bargaining Unit A group of workers represented by a union in collective

bargaining.

Older Workers Benefit Protection Act (OWBPA) Enacted in 1990, it allows employers to
offer retirement incentives to older workers.

Omnibus Transportation Employee Testing Act (Omnibus Act) Enacted in 1991, it authorizes
and regulates the drug testing of employees in the airline, railroad, trucking, and public
transportation sectors.

Opportunity Wage An exception to the minimum wage law that applies to employees under
twenty years old.

Organizational Display An organizational chart that includes demographics data for all
positions.

Pattern and Practice When an employer's policies have the effect of discrimination for no
legitimate business necessity.

Permissive Bargaining Subject A bargaining subject that either party may bring to the
table, but over which the other party is not required to bargain.

Placement Goal A reasonably attainable objective to achieve equal employment

opportunity.

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

Polygraph Testing A method of testing for an employer to measure an employee's heart,

respiratory, and skin reactions while he or she is asked a serious of questions in order to
determine if he or she is lying.
Pre-adverse Action A statement issued to an applicant from an employer that discloses
negative information found and information about his or her rights.

Precedent A controlling rule, example, or guide established by a judge that provides a

framework for other judges to follow in later cases

Pregnancy Discrimination Act (PDA) This Act recognizes pregnancy as a temporary

disability and prohibits applicants from being discriminated against in the recruitment process
because of pregnancy, childbirth, or related medical conditions (Amendment to Title VII).

Pretext A false excuse used by an employer to cover up for discrimination.

Prima Facie (Latin for "at first sight") Evidence based on the first impression.

Privacy The right of an individual to be left alone.

Privacy Act Enacted in 1973, it governs the release of private information about public
employees to federal agencies.

Progressive Discipline Performance management tool designed to modify employee

behavior by using a set of increasingly severe discipline steps, with consequences, that hold the
employee responsible.

Public Disclosure of Private Facts A type of tort in which an employer negligently or

intentionally discloses an employee's private information.

Public-policy Exception A rule of exception to the employment at-will doctrine that states
that an employer cannot terminate an employee for reasons that violate public policy.

Punitive Damages Monetary damages designed to punish an employer who acted maliciously
or recklessly.

Qualifying Event An event that entitles an employee to twelve weeks unpaid leave.

Quid Pro Quo (Latin for "this for that") The notion that an employer seeks sexual favors in
exchange for some positive employment outcome for an employee.

Quota An official limit on the number or amount of people or things that are allowed.

Race A local geographic or global human population distinguished as a distinct group by

genetically-transmitted physical characteristics.

Racial AnimusA type of race discrimination in which an employer obviously excludes an

applicant from a job opportunity on the basis of race.
Reasonable Accommodation A reasonable change to the work environment that allows an
individual with a disability to perform job functions.

Reasonable Action Sensible action taken to remedy an injustice or imbalance.

Reasonable Factor Other Than Age (RFOA) An employer defense to a disparate impact claim
that age was not a factor in an employment action.

Reasonable Person Test Hypothetical person in society who exercises average care, skill,
and judgment in conduct and who serves as a comparative standard for determining liability.

Reasonable Rationale A sensible justification for an affirmative action.

Reasonable Self-analysis A review of what a contractor's workforce looks like.

Rebuttal The action of contradicting or opposing by formal legal argument, plea, or

countervailing proof. In this step the plaintiff responds to the employer during an EEOC
discrimination claim hearing.

Reduction in Force (RIF) Occurs when a business eliminates one or more positions as part of
a strategic business plan to realign operations or reduce cost.

Rehabilitation Act of 1973 This federal law prohibits discrimination on the basis of disability.
The Act also authorizes state grants for rehabilitation services to disabled persons.

Reinstatement A remedy in which a former employee returns to his or her job.

Remedies A desired action resulting from a successful lawsuit.

Retaliation Claim A complaint filed by an employee who feels he or she was discriminated
against in violation of the law.

Retaliatory Discharge Termination of an employee as punishment for engaging in a protected

activity.

Reverse Discrimination Discrimination that occurs when an employer, acting under an

affirmative action plan, favors one race or gender in an employment decision.

Right-to-work Laws Laws that give employees the option to not join a union.

Same Actor Defense A defense used by the same employer who hires and then fires an over-39
employee to show that age was not a motivating factor in termination.

Scope of EmploymentEmployee conduct that is reasonably relative to a job description.

Secondary Boycotts A group's refusal to deal with a business that is not directly involved in the
dispute.

Serious Health Condition An incapacitating illness, injury, or impairment that requires

overnight care or continuing treatment from a health care provider.

Sexual Harassment Harassment directed at an employee because of his or her gender.

Sherman Anti-Trust Act Enacted in 1890, it prevents businesses from combining together to
restrain trade and seeking monopoly business power.

Stare Decisis (Latin for "let the decision stand") the doctrine of a court following the precedent
of an earlier court

Statute of Frauds A doctrine that requires certain contracts to be in writing.

Steering Assignments A type of race discrimination in which an employer hires a minority and
assigns him or her to a less-desirable position.

Strike A work stoppage by mass refusal of employees to work.

Summary Plan Document (SPD) A document issued from an employer to an employee that
contains information about an employee's benefits.

Supervisor A managing employee who has power to take tangible employment actions
against an employee.

Supremacy Clause Article VI, Paragraph 2 of the Constitution is commonly referred to as the
Supremacy Clause. It establishes that the federal constitution, and federal law generally, take
precedence over state laws, and even state constitutions.

Tangible Job Action An employment outcome arising out of sexual harassment.

Title VII of the Civil Rights Act of 1964 Protects all races from discrimination.

Tort A civil wrong which causes someone harm.

U.S Constitution Established America's national government and fundamental laws, and
guaranteed certain basic rights for its citizens.

USERRA Uniformed Services Employment and Reemployment Rights Act

Underutilization A discrepancy between the number of women and minorities in a

particular position and the number of qualified women and minorities in the constituent market.
Undue Hardship An accommodation to the work environment that places a significant
burden or expense on the employer.

Unfair Labor Practice (ULP) Action by an employer or a union that restrains or coerces
employees from exercising their rights to organize and bargain collectively or to refrain from
doing so.

Unfair Labor Practices Strike A stoppage of work in order to pressure management to follow the
law.

Uniformed Services Employment and Reemployment Rights Act (USERRA) Enacted in

1994, it prevents any employer from discriminating against someone who is or has been in
military service.

Union Shops A bargaining clause that allows a condition that all employees must join the union
once hired.

Unions An organization that represents workers in bargaining with employers.

Unwelcome Conduct Conduct that is not solicited by an employee and that a reasonable person
would regard as offensive.

Vesting The conveying of an employee's rights to benefits or contributions after a certain

amount of time.

Vicarious Liability A form of secondary liability that comes from the doctrine of respondeat
superior - "let the master answer for the servant".

Vietnam Era Veteran Readjustment Assistance Act Passed in 1974, it requires contractors to
take affirmative action toward veterans.

Voluntary Affirmative Action Plan A plan put into place by an employer whose self-analysis
reveals effects of past discriminatory action.

Whistleblower Individual who reports real or perceived wrongs committed by the employer.

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

The many factors which come into play in discrimination cases

Most often it is difficult to parse out of employer actions a single reason for a claimed adverse
job action due to age. In age discrimination, what is the meaning of a mixed motive?
Twenty
While some regulations apply to employers with only 15 employees, "the ADEA applies to
public and private employers and unions with more than 20 employees." The ADEA applies to
public and private employers and unions with more than _______ employees.

13
A few states, just 13, recognize the third at-will doctrine exception known as the implied
covenant of good faith and fair dealing. How many states accept the at-will doctrine of
implied covenant of good faith and fair dealing?

That a contract which cannot be performed within a year of its creation must be in writingWhat
is required by the statute of frauds?

Termination only for cause

Poor employee performance or misconduct
Economic exigencies Way that unions attempt to lessen the blow of at-will doctrine

False
Here, DeVille has 18 employees for employment law purposes. DeVille Corp. has 13 regular
employees and 5 employees assigned by a temporary agency, who are jointly employed by
Deville and a temporary agency. Here, DeVille has 13 employees for employment law purposes.
True/False

Contract and Agency The legal construction of employment has its roots in the traditional
master/servant relationship under the common law. The legal principles surrounding that
relationship grew into modern ________________ law.

Montana Wrongful Discharge From Employment Act

Montana Wrongful Discharge From Employment Act of 1987 prohibits termination for other
than good cause once an employee has successfully passed a probationary period and allows for
an employee to seek arbitration for a termination dispute. _____________ prohibits
termination for other than good cause once an employee has successfully passed a probationary
period and allows for an employee to seek arbitration for a termination dispute.

retaliatory discharge
Retaliatory discharge refers to an employer terminating an employee for anything other than a
work-performance related reason. The term most commonly refers to an employee being
terminated for reporting the employer's wrongful conduct. If an employee is terminated for
claiming minimum wage or overtime compensation, engaging in union activities, opposing
unlawful discriminatory practices, filing for workers' compensation, or "whistleblowing," the
employer may face liability for a

1) represents the employees of an employer; or 2) has a certain amount more members; or 3)

maintains a hiring hall which procures employees for at least one covered employer; or 4) is
engaged in an industry affecting commerce. A labor organization is subject to federal
employment law statutes, as if it were an employer, if it 1) represents the employees of an
employer; or 2) has a certain amount more members; or 3) maintains a hiring hall which procures
employees for at least one covered employer; or 4) is engaged in an industry affecting
commerce.

Contract
An Agency agreement is a contract because it gives parties duties and privileges to with respect
to each other which can be enforced. Agency is a(n) __________ relationship (a legally binding
agreement) between a principal and an agent whereby the principal, expressly or implicitly,
authorizes the agent to work on his or her behalf and with the power to bind the principal.

imperiled national health or safety. President Bush employed this provision in 2002 when he shut
down an 11-day West Coast port workers strike which was costing the nation's economy $1
billion a day. Under Taft-Hartley the executive branch of the federal government was
empowered to obtain legal strikebreaking injunctions in the courts if an impending or current
strike

permissible if the political contribution was germane to collective bargaining activity, was
justified to protect "labor peace" and prevent free riders, and did not unduly burden free speech.
A question that Taft-Hartley did not answer, but was addressed by the Supreme Court in
1991, was to what extent union service fees could be used for political purposes. The court
concluded such expenses by the union were

- In assessing both cases, the NLRB found Butler's policy restricting social networking by
employees unlawful because it could be construed to prohibit "concerted activity." The lesson for
the human resource professional is to craft social media policies so they may not discourage
social media posts about the conditions of employment Butler Medical Transport LLC and
Michael Rice and William Lewis Norvell, Case Nos. 5-CA-97810, 5-CA-94981 and 5-CA-97854
(Sept. 4, 2013)

A worker engaged in concerted activity

The employer was aware of the concerted activity
The employer demonstrated hostility to the concerted activity
That hostility led to a denial of an employment benefit to the worker.
Additionally, and very importantly, the NLRA authorizes union election oversight by the NLRB.
The prima facie case elements, which the NLRB must establish to show a worker
suffered employer discrimination for concerted activity are as follows:

Formally established the legitimacy of unions and labor organizing efforts

Articulated that employment to a worker was more significant than the worker to the firm
Established a public policy recognizing that collective bargaining was the only way workers
could effect meaningful change in the conditions of their employment
Curtailed the use of federal courts to intervene or issue injunctions in labor disputes
Declared yellow dog contracts to be against public policy and rendered them unenforceable in
any United States court Norris-LaGuardia was the first significant comprehensive labor
statute governing the interplay between unions and business. It is important because it:
against union organizing efforts. In 1908, the Supreme Court held that workers organizing into
unions was a combination designed to restrain trade and, therefore, violated the Sherman Anti-
Trust Act. The Sherman Anti-Trust Act, which was designed to curtail business abuses, was
used

passing the Norris-LaGuardia Act in 1932. Also known as the Federal Anti-Injunctive Act,
Norris-LaGuardia was the first significant comprehensive labor statute governing the interplay
between unions and business. Congress, recognizing that the Clayton Act had been largely
ineffective and that court federal rulings illustrated a continuing hostility to labor organizing
efforts, sought a remedy by

prohibited the elimination of unions and expressly removed union organizing efforts from the
"anti-combination" language of the Sherman Anti-Trust Act. An unintended consequence of this
exemption from anti-monopoly laws was that union officials were able to forcibly drive out
independent or alternative employee bargaining groups. This began the consolidation of union
power and subsequent union abuses. In 1914, Congress passed the Clayton Act, which

Medical records or payments

Residential or tenant history
Check writing history
Employment history
Insurance claims The type of information covered by the FCRA includes:

There was an unauthorized employer intrusion or prying into his or her seclusion
The employer intrusion was highly offensive to a reasonable person
The matter intruded upon was private
The intrusion caused anguish and suffering In order to establish a claim of intrusion upon
seclusion at work, an employee must show that:

Intrusion upon seclusion

Public disclosure of private facts
Placement in false light
Appropriation of image or likeness There are four separate torts under the invasion-of-privacy
umbrella:

- Dr. Ortega was a physician and director of training at a federal government medical facility.
Officials became concerned with the integrity of Dr. Ortega's administration of the program and
allegations of sexual harassment and, while he was on leave, searched Ortega's office and desk to
inventory state property. That search produced several incriminating personal items that were
used in the dismissal case against Ortega. Ortega complained he had a reasonable expectation of
privacy to personal items in his office and the employer search was unlawful.
- The Supreme Court, without actually deciding the merits of the matter, found that such a search
may be reasonable if it is:
Justified at the start
Limited in scope in its execution
The high court eventually sent the case back to the trial court for that determination.
O'Connor v. Ortega

20 or more employees, provides that benefit coverage extends 18 months (in some cases 36)
from the date of a qualifying event. The COBRA law, which applies to firms with

Whistleblowing The action of an employee to report the wrongdoings of an employer.

Wildcat Strike A strike by a portion of workers that is not authorized by the union.

Worker Adjustment and Retraining Notification Act (WARN) Enacted in 1988, it gives
terminated workers an opportunity to search for other employment or obtain additional training.

Worker's Compensation A form of insurance that provides wage replacement and medical
benefits for employees injured while at work in exchange for relinquishment of the right to sue
the employer for negligence.

Workforce Analysis A review of jobs, ranked by title and compensation.

Workweek Any consecutive seven-day period.

Yellow Dog Contract A document whereby an employee agrees not to organize or join a union.

Authorization cards When a threshold number of workers - 30 percent of the appropriate

bargaining unit - sign authorization cards to seek union formation, they petition the NLRB to
authorize an election. 1.2

Breach of Duty Under the doctrine of negligent referral, an employer may be liable for
providing untrue reference information which omits a former employee's dangerous and/or
criminal behavior. 10.1

Due process notice and an opportunity to be heard

(part of LMRDA union member "bill of rights") 12.8

Fiduciary Duty There were also changes in the rules governing union officers, which
included the command that every union officer must act as a fiduciary in handling the assets and
affairs of the union, must disclose conflicts of interest, and may not be a convicted felon. The
LMRDA made it a federal crime to embezzle or steal union funds.

Persons or entities that manage benefits funds are fiduciaries - guardians or caretakers - and must
act with a high level of skill, due care, and prudence in that task. This requires benefit managers
to operate according to the written benefits plans, diversify benefit fund investment, monitor
investments, comply with law, avoid conflicts of interest, and properly fund pension plans.
Failure to exercise this high duty with care may result in liability and ERISA sanctions.
"Key Employee" defined by FMLA Under certain circumstances, an employer may deny job
restoration to "key employees." A "key employee" is a salaried, FMLA-eligible employee who is
among the highest paid 10 percent of all the employees employed by the employer within 75
miles of the employee's worksite.

Respondeat Superior Doctrine respondeat superior - "let the master answer for the
servant."
Under respondeat superior doctrine, an employer is only responsible for the employee action
performed within the scope of employment. 9.6

Non-exempt Employee Workers who are normally paid an hourly wage and are entitled to
earn overtime
the FLSA allows employers to exempt certain employees from its provisions either fully or
partially depending on the nature of the work position. Titles do not matter, as it is the nature of
the duties performed which determines exempt status. Employers must keep accurate job
descriptions that support the exempt status or face large fines for mischaracterization of
employees.

if a worker is an independent contractor, the employer is not subject to wage and hour laws, anti-
discrimination laws, federal employee tax withholdings, or vicarious liability law. Given these
factors, employers are often eager to classify workers as independent contractors rather than
employees. What is an independent contractor?

treatment is on purpose, impact is not intentional What is the difference between disparate
treatment and disparate impact?

National Labor Relations Act of 1935 (Wagner Act) -->Rights of unions

Labor Managemet Relations Act of 1947 (Taft-Hartley) -->Rights of management

Labor and Management Reporting and Disclosure Act (Landrum-Griffin Act) -->Rights of union
members Major National Labor Laws

Oversee union elections

Remedy unfair labor practices
Decertify Unions Primary functions of NLRB

1) Illegal to discriminate in all employment related decisions on basis of race, color, religion,
sex, or national origin.
2) Created EEOC
3) Allows for BFOQ
4) Establishes criteria for Disparate Impact/Disparate Treatment
5) Whistleblower provision/prohibits retaliation Main provisions of Title VII of the Civil
Rights Act of 1964

1) Amended Title VII

2) Prohibits employment discrimination on basis of pregnancy, childbirth, or pregnancy related
medial conditions
3) Treat pregnancy as disability (employees on leave for pregnancy related issues still accrue
seniority, vacation time, pay increases and benefits).
4) Health insurance must include pregnancy related conditions at same cost as other medical
conditions (excludes abortions)
5) Pregnancy health coverage must be independent of marital status
6) Whistleblower provision/prohibits retaliation Main provisions of Pregnancy
Discrimination Act (PDA)

1) Pay men and women equal for equal work (work, effort, skills, responsibility, and working
conditions)
2) Covers all aspects of compensation (includes benefits)
3) Pay differentials allowed for seniority (as long as the seniority system wasn't based on
discriminatory practices), merit pay systems, productivity-based systems, and any other "factor
other than sex"
4) Whistleblower provision/prohibits retaliation Main provisions of Equal Pay Act (EPA)

1) Prohibits discrimination in all employment decisions on the basis of age

2) Prohibits mandatory retirement (except for firefighters and police officers and some
executives who will make >$44k/yr. in pension benefits)
3) Differentiation may be established on "factor other than age"
4) Complaint must be filed with EEOC within 180 days of alleged violation
5) Whistleblower provision/prohibits retaliation Main provisions of Age Discrimination in
Employment Act (ADEA)

1) Waiver of claims if the waiver is knowing and voluntary AND employees receive additional
compensation for the waiver, over and above that for which they are already entitled
2) Waiver must meet following conditions: Refer to employee's rights under the ADEA, contain
an exchange of value, advice to consult an attorney, allow employees 21 days to consider, and
provide 7 days to rescind
3) If part of termination program offered to group/class of employees then it must also meet the
following conditions: allow 45 days for consideration, list the class eligible for early retirement,
explain the factors used to determine eligibility, define time limits for deciding upon early
retirement, and explain any adverse action should the employee decide to decline or accept early
retirement Main provisions of Older Workers Benefit Protection Act (OWBPA)

1) Provides for a federal minimum wage (exceptions include those under 20 years old for the
first 90 days of employment)
2) Provides for overtime at 1.5x hourly rate for all hours worked within a work week over 40 for
non-exempt employees
3) Protects from abuse of child labor (retail jobs allowed with restrictions for 14 year olds, 16
year olds can work if no interference with health, education, or well-being--standards set by state
law)
4) Tipped workers, piece rate, and per assignment (e.g., referees) must earn at least minimum
wage when wages are averaged for the work week
5) Children working for parents, children working as performers, and most farm workers exempt
6) Applies to undocumented workers (cannot knowingly hire illegals and break the law because
they are illegal)
7) Whistleblower provision/prohibits retaliation Main provisions of Main provisions of Fair
Labor Standards Act (FLSA)

1) Prohibits the hiring of illegal aliens

2) Illegal to hire and or retain an undocumented worker
3) Within 3 days employer must verify eligibility to work U.S.
4) Established the I-9 form
5) Does not require investigation, just reasonable assurance the documents are valid
6) Also prohibits discrimination in employment on basis of national origin or citizenship
7) Two BFOQs established under IRCA: a) citizenship for specific jobs and public policy
functions and b) English proficiency when necessary to carry out essential functions Main
provisions of Main provisions of Immigration Reform and Control Act

1) Prohibits discrimination based on a disability

2) Defines disability as physical or mental impairment that substantially limits one or more major
life activities
3) Includes those covered to include "record of such impairment"
4) Also includes those covered to include perceived as having such an impairment
5) If person's condition poses direct threat to safety of others, then he/she is considered not
qualified for the job
6) Prohibits pre-employment medical testing; permissible after job offer (can be contingent) if
testing appropriately assesses physical or mental standards required for job 7) Whistleblower
protection/prohibits retaliation Main provisions of Americans with Disability Act (ADA)

1) Prohibits discrimination based on a disability

2) Disability defined as physical or mental impairment that substantially inhibits one or more
major life activities
3) Federal government and federal government contracts with contracts over $10,000 take
affirmative action with regards to disabled
4) Reasonable accommodation unless undue hardship happens
5) Provides for technology accessibility (visual presentations must also have a auditory
accompaniment) Main provisions of Rehabilitation Act

1) 60 days advance notice for plant closings and mass layoffs

2) Requires multiple notices if reduction in workforces is done in a series of layoffs within a 90-
day period; i.e., can't avoid notice by performing multiple smaller-scale layoffs
3) Doesn't apply for a) natural disaster, b) severe and unforeseen loss of capital, and c) company
is failing and giving notice would prevent obtaining capital that would allow it to continue
operations Main provisions of WARN Act

1) All employers must comply with all DOL safety and health requirements (compliance
requirement)
2) Employers must provide a workplace free of recognized hazards likely to cause death or
serious harm (general duty clause)
3) Allows for spot workplace inspections, imposes fines for rules violations, and ensures that
continual training is taking place
4) Whistleblower provision/prohibits retaliation Main provisions of Occupational Safety and
Health Act (OSHA)

1) 12 weeks unpaid leave if 1250 hours worked in the 12 months preceding leave for birth,
adoption, or placement of new foster child AND/OR serious health condition of the employee,
employee's spouse, son, daughter or parent
2) Amended to allow 26 weeks for qualifying family members of a veteran seriously injured in
line of duty
3) Employer allowed to create policy for requesting FMLA and follow with proper disciplinary
procedure if not followed
4) Upon return from leave, employee entitled to same or substantially the same position held
prior to leave
5) Does not cover bereavement or protect against layoffs or termination for cause Main
provisions of Family Medical Leave Act (FMLA)

1) Employers must provide correct information about benefits, deliver promised benefits,
provide a review for disputes, manage employee funds with light level of care, abstain from
interference of employee benefit rights, specify premiums and copays, and identify the
administrator and any factors that may impact benefits=Summary Plan Document
2) Summary Plan Document within 90 days of employment 3) Establishes minimum standards
and requirements that the pension plan must meet Main provisions of Employee Retirement
Income Security Act (ERISA)

1) Benefit coverage extends 18 months after qualifying event--an event that causes an employee
to lose group health coverage; e.g., termination, reduction in hours (special causes can increase
coverage period)
2) Employee/former employee is responsible for premium plus a small administration fee (up to
2% of the premium)
3) Employers must notify existing employees of their rights under COBRA
4) Exiting employee has 60 days to exercise COBRA rights Main provisions of The Consolidated
Omnibus Budget Reconciliation Act (COBRA)

1) Cannot release private medical data without the permission of the individual covered
2) Companies may develop organization-wide privacy policies and procedures and inform all
employees of them
3) Electronic, physical, and other methods must be implement to protect the security of health
recordsMain provisions of The Health Insurance Portability and Accountability Act (HIPAA)

1) Employee must provide written explanation of how wrongdoing involved the

mismanagement, waste, or abuse of public funds, or posed a danger to safety and health of public
2) Protects whistleblower from retaliation Main provisions of Whistleblower Protection Act
1) Protects against discrimination based on military service
2) Military employees can leave jobs to perform military service
3) Service employees entitled to reinstatement and employment benefits if they
a) gave employer notice of service,
b) absence is less than five years, and
c) submitted application for re-employment within designated time period
4) Employers not required to reinstate if
a) employer's circumstances have changed and re-employment would be unreasonable,
b) re-employment would cause undue hardship, and/or
c) initial employment was brief or nonrecurring Main provisions of Uniformed Services
Employment and Re-Employment Rights Act (USERRA)

1) Prohibits unreasonable governmental searches into the private affairs of employees

2) Often at issue is the definition of personal space and what would be a reasonable expectation
3) Drug testing--considered a governmental search so employer must have reasonable suspicion
employee is engaged in illegal drug use Main provisions of Fourth Amendment to the
Constitution of the United States

1) Governs release of private information about public employees

2) Employees have access to personnel files, a method to correct erroneous information in the
file, and power to prevent release of information in the file
3) Duty on employer to ensure privacy and accuracyMain provisions of Privacy Act of 1974

1) Maintain drug-free workplaces

2) Provide education and enforcement of drug-free policies
3) No provision for drug-testing Main provisions of Drug Free Workplace Act

1) Prevents employers from using polygraph tests for employment recruiting and retention
purposes
2) Allowed if employee is suspected to be involved in a situation that caused the business harm
or money
3) Can't use to investigate drug use, for theft among co-workers, accidents, or routine shortages
in inventory or cash drawers Main provisions of Employee Polygraph Protection Act

1) Relates to medical records or payments, residential or tenant history, check writing history,
employment history, and insurance claims
2) Must have written consent from applicant or employee; if applicant refuses, employer does
not have to hire him/her
3) If info leads to adverse decision, employer must furnish the employee/applicant with negative
information and rights under the law
4) Employee/applicant has chance to correct any erroneous info Main provisions of Fair
Credit Reporting Act (FCA)

1) Established legitimacy of unions and organizing efforts

2) Relevance of employment to worker > worker to firm
3) Collective bargaining was the only way workers could affect meaningful change in the
conditions of their employment
4) Curtailed the use of federal courts to intervene or issue injunctions in labor disputes
5) Yellow dog contracts against public policy and made them unenforceable Main
provisions of The Norris-LaGuardia Act

1) Allowed workers to form unions

2) Permitted collective bargaining
3) Allowed workers to strike Main provisions of National Labor Relations Act (NLRA) aka
Wagner Act

1) Sought to correct union over-reaching

2) Amended NLRA to protect a worker's right not to engage in concerted activity
3) Outlined unfair labor practices for unions
4) Prohibited wildcat strikes, solidarity or political strikes, secondary boycotts, secondary and
mass picketing, monetary donations by unions to federal political campaigns, and closed shops
5) Allowed executive branch of federal government to "strike break" if the strike interfered with
national health or safety Main provisions of Labor Management Relations Act (LMRA) aka
Taft-Hartley Act

1) Sought to empower union members and reduce corruption

2) Created a union member "bill of rights" >Right to attend meetings
>Right to vote in elections and on union business
>Right to vote for candidates in secret elections
>After union grievance process was exhausted, members could bring union to court and provide
for due process
3) Restraints on union practices
>Elections for officers every three years
>Candidates for office allowed access to voter rolls
>Process to address election irregularities >Annual financial reports to DOL
>Compelled to union democratic processes
>Standards for dues
>Fiduciary duty for officers, disclose conflicts of interest, and may be convicted with felony
charges (federal crime to embezzle) Main provisions of Labor Management Reporting and
Disclosure Act (LMRDA) aka Landrum-Griffin Act

Protected classes based on race, color, sex, religion, and national origin
Coverage type: ALL
Coverage size: >=15 employees Who does the Title VII of the Civil Rights Act of 1964
protect?

Those employees or candidates for employment who are pregnant or may become pregnant
Coverage type: ALL Coverage size: >=15 employees Who does the Pregnancy
Discrimination Act (PDA) protect?

Women
Coverage type: ALL Coverage size: ALL Who does the Equal Pay Act (EPA) protect?

Employees/applicants 40+ years of age

Coverage type: ALL Coverage size: >=20 employees Who does the Age Discrimination in
Employment Act (ADEA) protect?

Employees receiving special benefits upon early retirement

Coverage type: ALL Coverage size: >=20 employees Who does the Older Workers Benefit
Protection Act (OWBPA) protect?

Most--except children working for parents and some agricultural workers

Coverage type: ALL--Some small employers may be exempt, but are most likely covered by
state law Coverage size: MostWho does the Fair Labor Standards Act (FLSA) protect?

Employers, citizens, and non-citizens

Coverage type: ALL Coverage size: >=4 employees Who does the Immigration Reform and
Control Act protect?

Those employees and candidates for employment who are able to perform essential duties of the
job with reasonable accommodation
Coverage type: ALL Coverage size: >=15 employees Who does the Americans with
Disability Act (ADA) protect?

Employees and candidates for employment who are able to perform essential duties of the job
with reasonable accommodation
Coverage type: Federal or those receiving federal assistance Coverage size: ALL Who does the
Rehabilitation Act protect?

Those employees affected by a plant closing or mass layoff

Coverage type: Private Coverage size: >=100 employees Who does the WARN Act protect?

OSHA covers ALL

Coverage type: ALL Coverage size: ALL Who does the Occupational Safety and Health Act
(OSHA) protect?

ALL employees (except "key" employees)

Coverage type: Private Sector Public Sector Coverage size: >=50* ALL Who does the Family
Medical Leave Act (FMLA) protect?

All workers with a pension plan or retirement savings account

Coverage type: Private sector employers that offer plans--does not apply: tax-exempt churches,
workers' compensation plans, or foreign plans for non-resident aliens Coverage size: N/A Who
does the Employee Retirement Income Security Act (ERISA) protect?

ALL with health insurance options

Coverage type: ALL Coverage size: >=20 employees Who does the The Consolidated
Omnibus Budget Reconciliation Act (COBRA) protect?

ALL
Coverage type: ALL entities that process medical information or deliver health care services or
benefit plans Coverage size: ALL Who does the The Health Insurance Portability and
Accountability Act (HIPAA) protect?

ALL
Coverage type: Public-Federal Coverage size: ALL Who does the Whistleblower Protection Act
protect?

Employee Reservists and National Guard--non-career service military

Coverage type: ALL Coverage size: ALL Who does the Uniformed Services Employment and
Re-Employment Rights Act (USERRA) protect?

ALL
Coverage type: Public Coverage size: ALL Who does the Fourth Amendment to the
Constitution of the United States protect?

Federal Employees
Coverage type: Public-Federal Coverage size: ALL Who does the Privacy Act of 1974 protect?

ALL
Coverage type: Federal Contractors Coverage size: contracts > $100k Who does the Drug
Free Workplace Act protect?

ALL
Coverage type: Private (some national defense, security contractors, FBI, private security firms,
and pharmaceutical firms may be exempt) Coverage size: ALL Who does the Employee
Polygraph Protection Act protect?

FCRA covers ALL

Coverage type: ALL Coverage size: ALL Who does the Fair Credit Reporting Act (FCRA)
protect?

Employees who belong to a union or wish to belong to a union

Coverage type: ALL Coverage size: ALL Who does the The Norris-LaGuardia Act protect?

Employees who belong to a union or which to belong to a union

Coverage type: Private Coverage size: ALL Who does the National Labor Relations Act
(NLRA) protect?

Designed to curb union overreaching. Taft-Hartley amended the NLRA to protect a worker's
right not to engage in concerted activity and outlined the unfair labor practices in which a union
could engage. Who does the Labor Management Relations Act (LMRA) protect?
Workers and unions covered by the NLRA and Railway Labor Act
Coverage type: Private Coverage size: ALL Who does the Labor Management Reporting and
Disclosure Act protect?

Up to 2 years of back pay for lost earnings, compensatory awards, punitive damages, return to
job (or front pay if not realistic); employers may have to initiate an affirmative action plan
Enforced by: EEOC What are the remedies available for Title VII of the Civil Rights Act of
1964 violations?

PDA remedies are the Same as Title VII

Enforced by: EEOC What are the remedies available for Pregnancy Discrimination Act (PDA)
violations?

Unpaid back wages and may receive amount equal to back wages as liquidated damages (but
technically no punitive damages)
Enforced by: EEOC What are the remedies available for Equal Pay Act (EPA) violations?

Back wages and legal fees; liquidated damages if the employer acted willfully
Enforced by: EEOC What are the remedies available for Age Discrimination in Employment
Act (ADEA) violations?

Same as those under ADEA

Enforced by: EEOC What are the remedies available for Older Workers Benefit Protection Act
(OWBPA) violations?

Back wages owed and liquidated damages equal to wages owed, injunctions, willful violations
may be instituted by Department of Justice, reinstatement, and recovery of legal fees
Enforced by: Department of Labor What are the remedies available for Fair Labor Standards
Act (FLSA) violations?

Fines and/or criminal charges for employer

Enforced by: Immigration and Customs Enforcement (ICE) other agencies may get involved if
there are other issues--FBI (terrorism), DEA (drug smuggling), DOL and Dept. of State (visas)
What are the remedies available for Immigration Reform and Control Act violations?

ADA remedies are the Same as Title VII

Enforced by: EEOC What are the remedies available for Americans with Disability Act (ADA)
violations?

Injunctions, reinstatement with or without back pay and interest, attorney fees, and expert
witness fees
Enforced by: Agency's EEO counselor, but employee can also see final judicial review or final
decision by EEOC What are the remedies available for Rehabilitation Act violations?

Up to 60 days' pay for affected employees, fines

Enforced by: No specific What are the remedies available for WARN Act violations?

Fine, correction of hazard, and/or criminal penalties (imprisonment)

Enforced by: Occupational Safety and Health Administration What are the remedies
available for Occupational Safety and Health Act (OSHA) violations?

Back pay, reinstatement, front pay, accumulation of benefits, other monetary damages, liquidated
damages, attorneys' fees, cost and interest
Enforced by: Department of Labor What are the remedies available for Family Medical Leave
Act (FMLA) violations?

Money that should have been paid plus interest, clarification of future benefits
Enforced by: IRS, DOL, and Pension Benefit Guarantee Corporation (PBGC) jointly What
are the remedies available for Employee Retirement Income Security Act (ERISA) violations?

Fines, fees, and payment of medical bills that would have been covered
Enforced by: DOL & IRS jointly What are the remedies available for The Consolidated
Omnibus Budget Reconciliation Act (COBRA) violations?

Criminal and civil penalties for organizations and individuals who act willfully when sharing
private medical information could face civil liability and criminal sanctions--including prison
time
Enforced by: Office of Civil Rights in the Health and Human Services Agency What are the
remedies available for The Health Insurance Portability and Accountability Act (HIPAA)
violations?

Whistleblower may receive 15-25% of proceeds/charge

Enforced by: Office of Special Counsel What are the remedies available for Whistleblower
Protection Act violations?

Order of compliance, compensation for lost wages and benefits, and recovery of legal fees
Enforced by: Federal Secretary of Labor What are the remedies available for Uniformed
Services Employment and Re-Employment Rights Act (USERRA) violations?

Compensatory and punitive damages; any evidence obtained

Enforced by: Federal Courts What are the remedies available for Fourth Amendment to the
Constitution of the United States violations?

Civil and criminal penalties

Enforced by: Federal Courts What are the remedies available for Privacy Act of 1974
violations?

?
Enforced by: Federal Courts What are the remedies available for Drug Free Workplace Act
violations?
Fines
Enforced by: Federal Courts What are the remedies available for Employee Polygraph
Protection Act violations?

Civil penalties, individuals can sue

Enforced by:
https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf What are the
remedies available for Fair Credit Reporting Act (FCA) violations?

Injunctions, compliance, remedies related to loss Enforced by: Arbitration, federal courts What
are the remedies available for The Norris-LaGuardia Act violations?

"Make whole" or Informational requirements--NLRB does not assess penalties

Enforced by: NLRB What are the remedies available for Labor Management Relations Act
(LMRA) violations?

Injunctions, compliance, remedies related to loss

Enforced by: NLRB, DOL What are the remedies available for Labor Management Reporting
violations?

Fires an employee just prior to that employee gaining "fully vested" status - Implied Covenant of
Good Faith and Fair Dealing

Fires employee to avoid paying a large commission - Implied Covenant of Good Faith and Fair
Dealing

Fires an employee because he/she wouldn't "cook the books" - Public Policy Exception What
exception to employment-at-will does each act by an employer violate?

Fires an employee just prior to that employee gaining "fully vested" status

Fires employee to avoid paying a large commission

Fires an employee because he/she wouldn't "cook the books"

Fires an employee for missing work due to jury duty - Public Policy Exception

Fires an employee even though the discipline policy in the employee handbook wasn't followed -
Implied Contract Exception What exception to employment-at-will does each act by an
employer violate?

Fires an employee for missing work due to jury duty

Fires an employee even though the discipline policy in the employee handbook wasn't followed

Fires an employee for filing a workers' compensation claim - Public Policy Exception
Fires employee for requesting FMLA - Public Policy Exception

During a performance review, supervisor tells employee she is doing a great job and will have
her job for a long time - Implied Contract Exception What exception to employment-at-will does
each act by an employer violate?

Fires an employee for filing a workers' compensation claim

Fires employee for requesting FMLA

During a performance review, supervisor tells employee she is doing a great job and will have
her job for a long time

Fires an employee for participating in a sexual harassment investigation - Public Policy

Exception

Manager ignores sexual harassment and employee quits because of it - Constructive Discharge
What exception to employment-at-will does each act by an employer violate?

Fires an employee for participating in a sexual harassment investigation

Manager ignores sexual harassment and employee quits because of it

1 Employee believes a discriminatory act occurred

2 Employee files compliant with EEOC
3 EEOC examines employee's claim to determine whether a prima facie case exists
4 EEOC sends complaint to employer
5 Employer responds to EEOC addressing employee's assertion of events 6 EEOC decides to
pursue further with more investigation and pursuit of settlement or issuance of a "Right to Sue"
letter, which gives employee the right to seek private counsel and sue the employer Steps
of filing a discrimination complaint with the EEOC

Exists when an employer allows intolerable conditions of unfairness or mistreatment to exist at

work to such a degree that no reasonable employee would feel he or she had any other option but
to quit. Describe constructive discharge.

Could include, among other things, sexual or other harassment, failure to accommodate a
disability, or excessive pressure to retire. What is an example of constructive discharge?

This claim, which is limited in its recognition, exists when a third party, perhaps a co-worker or
client, pressures the employer to terminate an employee without cause. Describe how
intentional interference with a contract may happen.
The employer must remember when terminating employees to treat all employees exactly the
same. Disparate treatment of employees in the termination process is just as unlawful as in the
on-boarding process.
Ex: Noonan v. Staples, Inc. What is important for employers with regard to how they treat
employees during termination?

The employer must be very careful to avoid a claim that termination was motivated by
retaliation. However, if an employee deserves termination, the employee's failings have been
adequately documented, and all progressive discipline steps been unsuccessful, then the
employer is justified in terminating the employee. How can an employer protect itself against a
wrongful termination, termination based on discrimination, or retaliation claim?

1) public policy; 2) implied contract; and 3) implied covenant of good faith. Describe the
three (3) exceptions to employment at will.

- to safeguard employees' rights to organize and to determine whether to have unions as a

bargaining representative.
- to prevent and remedy unfair labor practices committed by private sector employers and
unions.
- provides the legal framework and supervision for union elections and decertification in the
private sector.
- empowered to investigate charges by employees, unions, or management of unfair labor
practices.
- has executive, legislative-ruling making, and judicial authority.
- may determine the merit of claims and adjudicate labor disputes through the use of
administrative law judges. By that authority the NLRB may compel compliance with its rulings
by appeal to the U.S. Court of Appeals. What is the National Labor Relations Board
(NLRB) and what are its main functions?

Interferes with employees as they engage in concerted activity

Dominates or assists a labor union
Discriminates against any worker because of union activity
Punishes a worker for filing charges with the NLRB
Fails to bargain collectively in good faith with the union List unfair labor practices
perpetrated by an employer.

Interferes with any employee's rights under the NLRA

Aids an employer in discriminating or interfering with union activities
Pickets unlawfully
Charges excessive dues and initiation fees to union members
Causes the employer to pay for work not performed
Refuses to bargain in good faith List unfair labor practices perpetrated by unions.

Employee Dissatisfaction
Initial Organization Meeting
Signatures
Secret Ballot Election/Card Check
Voting and Contract List the steps of the union organization process.

strikes, mediation, lockout What are some strategies for resolving labor disputes?

1 Workers gather 30% interest from current employees expressing desire to join union
2 Petition indicating 30% interest is submitted to NLRB
3 NLRB investigates to ensure it has jurisdiction, union is qualified, and no existing labor
contracts exist
4 NLRB approves
5 Election agreement between union and employer
6 NLRB conducts election
7 Majority vote of those voting determines certification What are the steps of the union
organization process?

Vote is held for no union, union #1, or union #2 What happens if there is a competing union
that has 30% interest as well?

Election is set according to NLRB rules What happens if the parties cannot agree on election
specifics?

Election results are set aside What happens if either the employer or union interfere with
employees' freedom of choice?

Wages - mandatory
Union Procedure for Ratifying Contracts - Permissive
Union Attempt to Negotiate a Closed Shop Agreement - prohibited
Hours - mandatory
Attempts to modify the union certification - Permissive Indicate whether each item listed
below is considered a mandatory, permissive, or prohibited bargaining subjects according to
NLRA.

Wages
Union Procedure for Ratifying Contracts
Union Attempt to Negotiate a Closed Shop Agreement
Hours
Attempts to modify the union certification

Corporate Social or Charitable Activities - Permissive

Discriminatory Employment Practices - Prohibited
Annual Bonuses - mandatory
Shift Premiums - mandatory
Specifying When Workers May Strike - Prohibited Indicate whether each item listed below is
considered a mandatory, permissive, or prohibited bargaining subjects according to NLRA.

Corporate Social or Charitable Activities

Discriminatory Employment Practices
Annual Bonuses
Shift Premiums
Specifying When Workers May Strike

Changes to NLRA Standards - prohibited

Pension Plans - mandatory
Strike Settlement Agreements - Permissive
Employer Controlled Pricing in Vending Machines - mandatory Indicate whether each item
listed below is considered a mandatory, permissive, or prohibited bargaining subjects according
to NLRA.

Changes to NLRA Standards

Pension Plans
Strike Settlement Agreements
Employer Controlled Pricing in Vending Machines

Workers from Local 54 at All Toys, Inc. decide to strike without getting approval of the union -
Wildcat Strike What type of strike or protest does this action represent: Workers from Local 54
at All Toys, Inc. decide to strike without getting approval of the union

The union decides to strike because it wants higher profit sharing for All Toys, Inc. workers -
Economic Strike What type of strike or protest does this action represent: The union decides
to strike because it wants higher profit sharing for All Toys, Inc. workers

During the collective bargaining process, the union and management cannot agree to terms
related to shift premiums - Impasse What type of strike or protest does this action represent:
During the collective bargaining process, the union and management cannot agree to terms
related to shift premiums

Management at All Toys, Inc. is frustrated with the union's demands and refusal to bargain;
therefore, replacement employees for the striking workers are hired - Lockout What type of
strike or protest does this action represent: Management at All Toys, Inc. is frustrated with the
union's demands and refusal to bargain; therefore, replacement employees for the striking
workers are hired

Workers at All Toys, Inc. strike because they believe management is not bargaining in good faith
- Unfair labor Practice strike What type of strike or protest does this action represent: Workers
at All Toys, Inc. strike because they believe management is not bargaining in good faith

Consumers refuse to buy products from All Toys, Inc. because they do not agree with its
business practices - Boycott What type of strike or protest does this action represent:
Consumers refuse to buy products from All Toys, Inc. because they do not agree with its
business practices
Notwithstanding the role of common law, the supreme law of the land in the U.S. is the
Constitution. Every law in the country must comply with the provisions of the Constitution, or
that law is void. The power of the Supreme Court to consider whether a law comports with the
Constitution is called Judicial Review. Describe how the U.S. Constitution affects
employment law.

U.S. law is based on the English and American common law, which consists of opinions of
judges in cases covering hundreds of years. What is common law and how does it get created?

The common law agency test

The economic realities test
The IRS 20-factor analysis List and describe the three tests used to determine independent
contractor status

Employer obligations to an employee are many and varied. On the other hand, an employer is not
vicariously liable for the torts of an independent contractor, and employer obligations are limited
to the contract terms. For example, if a worker is an independent contractor, the employer is not
subject to wage and hour laws, anti-discrimination laws, federal employee tax withholdings, or
vicarious liability law.Explain why it is important for an organization to correctly identify which
workers are "employees" versus independent contractors?

Sometimes a contingent or temporary worker, hired on an ad hoc basis from an employment

agency, may become a full-fledged employee for federal law purposes if he or she works for a
long time for an employer and performs the same work, and in the same circumstances, as a
traditional employee. When might a contingent employee (or temporary worker) hired from an
employment agency be considered an employee?

Volunteers, who are not employees, may become employees if their service results in the
conferral of benefits such as a pension, group life insurance, workers' compensation, or access to
professional certification. The test is whether the benefits constitute "significant remuneration"
rather than merely the "inconsequential incidents of an otherwise gratuitous relationship." What
action(s) may require a volunteer to be classified as an employee?

Partners, corporate officers, directors, and major shareholders are not employees. Which
members of an organization's leadership are exempt from employee status?

- The degree of interrelation between operations, such as sharing management services, payroll,
and office space.
- The degree to which the entities share management, as in having a common slate of managers,
officers, and directors.
- The degree of common control of labor relations, as in human resources administration or
personnel policy development.
- The level of shared ownership. List the factors used to determine whether two or more
firms are considered an integrated enterprise
The employment-at-will doctrine provides that an employer may terminate an employee at any
time, for any legal reason, without incurring liability. Define employment-at-will

Agency is a contract relationship (a legally binding agreement) between a principal and an agent
whereby the principal, expressly or implicitly, authorizes the agent to work on his or her behalf
and with the power to bind the principal. Describe and give examples of the following type of
employment contracts: Agency

An implied contract is a legally binding agreement which is created, not through formal contract
negotiation and documentation, but by the actions of the employer and the employee.
Describe and give examples of the following type of employment contracts: Implied
Contracts

An explicit contract is an agreement in which the parties state exactly what they agree to do.
Describe and give examples of the following type of employment contracts: Explicit
Contracts

Contracts and union collective bargaining agreements may lessen the brunt of the at-will doctrine
by providing for specific terms of employment or termination only for cause - poor employee
performance or misconduct - or economic exigencies. Describe and give examples of the
following type of employment contracts: Union Contract

E-Verify is an internet-based system operated by the federal government which allows an

employer to determine the eligibility of an employee to work in the United States using
information reported on that employee's Form I-9, Employment Eligibility Verification.
Explain employer's use of E-verify and how it ascertains worker eligibility

A qualifying event is:

Birth, adoption, or placement of a new foster child
A serious health condition of the employee, or the employee's spouse, son, daughter, or parent.
Other family obligations are not covered. The FMLA applies to both men and women. In 2010,
the leave provisions were expanded to include de facto parents of seriously ill children. What
are qualifying events for FMLA leave?

Under the FMLA provisions, an employee is entitled to twelve weeks annual unpaid leave if the
employee has worked for the firm for 1,250 hours in the twelve months prior to taking leave,
experiences a qualifying event, and provides timely notice to the employer. A 2008 amendment
allowed for a twenty-six week period of leave for qualifying family members of a veteran
seriously injured in the line of duty. What period of leave is allowed under FMLA provisions?

The employee has a burden to provide the employer with health care provider certification that a
serious health condition exists and provide timely notice to the employer Summarize the
employee's responsibility when requesting FMLA leave.
The employer may require the employee to see a company-paid physician to make an additional
assessment if it has concerns about the validity of the certification provided. What
limitations or requirements may an employer impose on employees requesting FMLA leave?

The law favors the employer in this area. Most employees do not understand that the
fundamental privacy protections implied by the Constitution apply to governmental intrusion and
not to employer action. Consequently, with sufficient notice and an articulated and legitimate
business purpose, employers may engage in a wide range of monitoring activities which
otherwise might be inimical to employee privacy. Privacy is protected in the workplace by
reference to the Constitution, federal statutes, and the common law. What are potential
limitations to employee privacy?

Drug testing law is different for public and private employees. Public employees are protected by
the Fourth Amendment against unreasonable search and seizure by the government. The
Supreme Court has held that a drug test is a governmental search.

The ADA governs the medical testing of employees, and under its provisions pre-employment
medical testing is prohibited.

The Employee Polygraph Protection Act of 1988 prevents employers from using polygraph tests
for employment recruiting and retention purposes. Describe regulations/employer concerns
pertinent to the following types of employee testing:
Drug/Alcohol Testing
Medical Testing
Polygraph Testing

- The first step is determining which federal employment statutes apply to the firm.
- The second step would be to determine if the employer does contract work for a federal or state
government.
- Third, after assessing which federal laws apply, the HR professional must look to state law.
- The final step would be to understand which common law rules apply in the state where the
business operates. How would an HR professional determine whether an employment law is
applicable to his/her employer?

In disparate impact discrimination, the plaintiff claims not that the employer intentionally
discriminated, but rather the employer's procedures, policies, or practices are "not job-related and
consistent with a business necessity" and have the effect of creating an unnecessary obstacle to
employment opportunity for a specific protected class. Disparate treatment discrimination is
directed at an individual, while disparate impact discrimination is directed at a class of persons.
Explain the difference between disparate impact (aka adverse impact) and disparate
treatment (aka adverse treatment)

Under this statistical test, any hiring criteria may be deemed discriminatory if the selection rate
of a protected class is less than 80 percent of the majority. Explain how to measure unlawful
disparate impact using the four-fifths (4/5) rule (aka the 80% rule).
1. An apparently neutral employer's procedure, policy, or practice, which has the effect of
limiting employment opportunities for a particular class.
2. That the difference in impact is substantial. Examples of neutral polices and protected classes
impacted might include:
>Height and weight restrictions - gender/national origin
>Language requirements - national origin
>Physical strength tests - gender
>Educational requirements - race; dress codes - gender/religion
>No beard policies - gender/race/national origin/religion How would an employee establish a
prima facie case for gender discrimination?

quid pro quo

hostile environment Describe the two types of sexual harassment

1) is over 40 years of age and older;

2) was qualified for the employment position;
3) was adequately performing the essential job functions; and
4) was treated less favorably than another younger employee. How would an employee
establish a claim of age discrimination under the ADEA?

The EEOC states that an "employment practice is based on an RFOA when it was reasonably
designed and administered to achieve a legitimate business purpose in light of the circumstances,
including its potential harm to older workers." Describe what is meant by a "reasonable
factor other than age"

Whether the employer has clearly defined the business purpose of the factor
Whether the factor itself is clear and applied fairly
The extent to which managers and supervisors are trained to apply the factor without engaging in
discrimination
The extent to which supervisor discretion is limited or based on subjective judgments
The extent to which older employees are impacted by the practice
The degree of harm to individuals within the protected age group What is used to determine
whether an employment practice was based on a reasonable factor other than age?

The ADEA prohibits the imposition of a mandatory retirement age. Two exceptions include:
1) firefighters and police officers; and
2) a small number of corporate executives who carry substantial discretionary authority and will
have a company pension of at least $44,000. When are employers allowed to force retirement?

RFOA, RIF, Hazen Paper Co. v. Biggins What are some applicable employer defenses to age
discrimination claims?

The employer is not required to change its shift management schedule, order other employees to
work alternate shifts, violate seniority rules to accommodate an employee, and so on. This would
constitute an undue hardship to the employer. When looking at whether an accommodation is a
hardship, courts look to the employer's efforts, the cost of accommodation in terms of wages and
administration, the type of job involved, and the size of the employer. Employees requesting an
accommodation must cooperate and may not demand a particular accommodation other than a
reasonable one offered by the employer. What is important for the employer to consider after
an employee makes a request for accommodation because of religious reasons?

Given that the request is legitimate, an employer has the duty to provide the employee with a
reasonable accommodation absent an undue hardship to the business. The level of
accommodation has been characterized by the courts as "de minimus," meaning not very much.
For example, a Seventh-Day Adventist who wishes not to work Saturdays may be given
permission to change shifts with another employee. The employer is not required to change its
shift management schedule, order other employees to work alternate shifts, violate seniority rules
to accommodate an employeeWhat is an employer's responsibility for accommodating shift
changes for those requesting days off due to religious observance?

1) the employee asks for an accommodation;

2) the employer and employee engage in an interactive discussion regarding barriers to
performance;
3) a listing of possible accommodations is examined;
4) the employer determines which accommodation is reasonable and effective; and
5) the employer implements the accommodation. List the steps in making a reasonable
accommodation under the ADA.

Affirmative Action (AA) is any action taken by an employer to overcome discriminatory effects
of past or current practices or policies that create barriers to equal employment opportunity. The
focus of AA is to assist historically disadvantaged groups in employment, which includes
women, African Americans, Asians, Pacific Islanders, disabled persons, and veterans.
Affirmative Action has its genesis in presidential action. Describe Affirmative Action

managers of federally-funded projects, contractors and their subcontractors doing business with
the federal government Who must practice Affirmative Action?

Applicable Concept:
Respondeat Superior Doctrine What concept most closely identifies with the following
situation:

Your friend, Missy at Big Box, Inc. calls you to get knowledge on Bobby Boxer an applicant she
is considering. You are hesitant to provide any information because you are worried about
repercussions, but Missy explains to you that you are protected under the law as long as you keep
your comments related to the work Bobby performed while he was employed at your
organization.

Applicable Concept:
Explicit Contract What concept most closely identifies with the following situation:

Your friend, Rashad, asks you to borrow $100 and states he will pay you back next week.
Applicable Concept:
Employee What concept most closely identifies with the following situation:

A person who works for an organization for a wage or salary.

Applicable Concept:
Common Law What concept most closely identifies with the following situation:

Roe v. Wade was decided at the Supreme Court level and thus became "law"

Applicable Concept:
Implied Contract What concept most closely identifies with the following situation:

You hire Miquel and during his offer interview, you state that the salary is $62,000 per year.
After six months, Miquel's supervisor decides he is not right for the job or organization and fires
him. Miquel believed he would be there for a year because of how his salary was quoted.

Applicable Concept:
Public Policy Exception What concept most closely identifies with the following situation:

You are the HR Generalist for Little Manufacturing Co. A big project just came in and your boss
has directed you to deny all FMLA leave requests. You explain that you can't do that because
Little Manufacturing has 75 employees and is bound by law to offer FMLA to eligible
employees with qualifying events. Your boss storms off in a huff. A week later, Saree, a full-
time supervisor in the accounting department requests FMLA due to her impending labor and
provides documentation from her doctor. You grant her the leave and then are subsequently
fired.

Applicable Concept:
Employment At Will What concept most closely identifies with the following situation:

This allows you to quit your job without repercussions and also allows the employer to fire you
at any time for any legal reason; i.e., no notice is required by either side when terminating the
employment relationship.

Applicable Concept:
Constitutional Rights What concept most closely identifies with the following situation:

No employment law can override this.

Applicable Concept:
Integrated Enterprise What concept most closely identifies with the following situation:

ABC Company and XYZ Corporation share a CEO and HR Director and both use the same
employee manual.
Applicable Concept:
IRS 20-Factor Analysis What concept most closely identifies with the following situation:

The test that bases the determination of independent contractor status on whether the worker
supplies his/her own protective equipment.

Exempt Employees Salaried employees are not necessarily

___________________________________ under the FLSA.

key employeesUnder FMLA, ______________________________ may be denied leave if that

leave will impede business operations.

workweek Under the FLSA, employers define this 7-day consecutive period as the
__________________________________.

50 Kenya may not be entitled to any additional leave if her employer has fewer than
____________________________ employees.

General Duty Clause Under OSHA's _______________________________, employers are

required to provide a workplace of known hazards.

E-verify To check an employee's eligibility to work in the United States, employers often
use __________________________.

FMLA (Family and Medical Leave Act of 1993) Juan, Kenya's husband, wants to take two
weeks off when the baby comes home. He may be entitled to leave under
_____________________.

whistleblower An employee who reports a wrong, is considered a ________________________

and is protected from retaliation under OSHA.

unpaid Under FMLA, eligible employees are entitled to 12 weeks of

__________________________ leave.

Workers' Comp If a worker files a claim under ___________________________, he/she

gives up the right to sue the employer.

Workers' Compensation Insurance This is a type of insurance, so employers often will

investigate claims and try to deny claim to keep costs down:__________________________.

WARN Act (Worker Adjustment and Retraining Notification Act) Because a tornado decimated
Blah Blah Inc.'s plant and forced it to close, the _________________________ does not apply.

privacy The interest of Uncle Sam outweighs and individual's right or the protection of the
greater good outweighs an individual's right are common phrases when we refer to
_____________________________.
I-9 Form Under IRCA, employees must be eligible to work in the United States and
requires employers to complete an ___________________________.

FMLA (depending on time worked and company size) Kenya, an Administrative Assistant,
just had a baby. She used all of her PTO time but wants to stay home a bit longer. She may be
entitled to leave because of ________________________.

negligent reference Megan has applied at Boo Corp. Boo Corp calls her previous employer
and asks about her work habits and history. Her previous employer does not divulge her
numerous accidents on the job or her three separate violent interactions with co-workers. Boo
Corp, not hearing anything negative decides to hire Megan, who then assaults and injures her
supervisor. In this example, Megan's previous employer could be liable based on
__________________________________.

Warn Act Blah Blah Inc. employs 140 employees in Michigan. On Wednesday, they all
showed up to work to find the gates padlocked and a sign that said, "Blah Blah Inc. regrets that
because of business conditions, we have been forced to relocate to Alabama. Visit our website to
continue enjoying our quality products." Blah Blah Inc. has most likely violated the
___________________________.

FLSA __________________________ defines dangerous occupations and regulates what types

of jobs workers under 16 may have.

the Fair Credit Reporting Act Because of ___________________________, employers are

permitted to investigate a prospective employee's credit history.

Exempt employees ___________________________________ may not be entitled to

overtime under FLSA.

IRCA What requires employers to perform due diligence in ensuring prospective employees are
eligible to work in the United States?

Polygraph
As long as the protocols are followedWhat type of testing would be allowed in this scenario:
A jewelry store in the mall has noticed over time small amounts of jewelry have gone missing.
The employer decides to conduct an investigation and wants to interview employees.

Drug/Alcohol
Employers can choose to administer drug/alcohol tests to employees and perspective employees
to ensure safety What type of testing would be allowed in this scenario:
A transportation company is hiring for new drivers. The company already runs a driving record
background check.

Medical/Physical
When the job requires strenuous activity What type of testing would be allowed in this
scenario:
The job of the firefighter is very physically demanding and requires lifting, running, climbing,
lifting, and long periods of strenuous activity.

Honesty Testing
Honesty/integrity tests are often used to ensure a good person-organizational fit. What type of
testing would be allowed in this scenario:
Pollyanna Co. has an ethics code of which it is extremely proud. It wants to ensure any
candidates who it interviews are also ethical and will identify with its ethics policy.

None Allowed
Employers can administer medical/physical tests but not to discriminate against employees in
terms of employment including benefits. What type of testing would be allowed in this
scenario:
Before Hullabaloo Inc. decides on medical insurance premiums for its employees, it wants to
assess the health of current employees to determine if they have pre-existing conditions or if they
are likely to develop diseases in the future.

Drug/Alcohol
There are no laws that prevent employers from administering drug/alcohol tests and they are at
the perogative of the employer to ensure a drug-free workplace. What type of testing would
be allowed in this scenario:
Phil, an employee at Ooopsie, LLC had an accident on the job. Ooopsie immediately decides to
investigate.

None allowed
While Bix Box could inspect lockers it would not be able to search purses and backpacks unless
it has reasonable suspicion and employees are notified of the possibility ahead of time. What
type of testing would be allowed in this scenario:
Big Box Super Store wants to inspect employee lockers that it provides including all of the
contents.

I can't believe they hired that kid out of college when James has 20 years experience. - ADEA

I'm not going to hire any women. - disparate treatment

If you would like a new chair because of back problems, please provide a doctor's note. -
Reasonable accommodation

If you sleep with me, I'll let you choose your next assignment. - Quid Pro Quo harassment
Match each statement with its likely applicable law or corresponding vocab word:

I can't believe they hired that kid out of college when James has 20 years experience.

I'm not going to hire any women.

If you would like a new chair because of back problems, please provide a doctor's note.

If you sleep with me, I'll let you choose your next assignment.

We have to do a credit check for anyone working in our plant. - disparate impact

Marquis got hurt and now cannot groom himself without assistance. - Disability

If I give Sasha every Saturday off because of religious reasons, Andre then has to work. - Undue
hardship

These lewd, bias jokes are inappropriate and happen too much! - Hostile environment Match
each statement with its likely applicable law or corresponding vocab word:

We have to do a credit check for anyone working in our plant.

Marquis got hurt and now cannot groom himself without assistance.

If I give Sasha every Saturday off because of religious reasons,

Andre then has to work. These lewd, bias jokes are inappopriate and happen too much!

We are going to "right" the "wrongs" of the past at Right Way, Inc. - Affirmative Action

You have to be a woman to be a ladies' washroom attendant at Fancy, Inc. - BFOQ

I'm a woman, was qualified, applied for that job, was denied, but they kept the posting up. -
Establishing a prima facie case Match each statement with its likely applicable law or
corresponding vocab word:

We are going to "right" the "wrongs" of the past at Right Way, Inc.

You have to be a woman to be a ladies' washroom attendant at Fancy, Inc.

I'm a woman, was qualified, applied for that job, was denied, but they kept the posting up.

- It represents the employees of an employer.

- Its membership exceeds a certain level.
- It maintains a hiring hall which procures employees for at least one covered employer.
- It is engaged in an industry-affecting commerce.

This broad definition brings virtually all unions under federal and state employment law rules.
A labor organization is subject to federal employment law statutes as if it were an
employer if any of the following are true of it:
Notes for users Attached is my OA score so you can tell in what areas my quizlet might be
lacking. Because people asked: time to completion was 2 days. Almost 600 cards in this one, I
know. But there's a lot of dense material in this class with specific stuff to remember (cases,
laws, etc)

Tips for passing You kinda want to at least skim the text in this one. The recorded cohorts
are vague and not that helpful, but maybe listen to them while studying. Click on Assessments in
the text and do all of the end of topic quizzes. If you get less than 85% or so on any topic, do that
all of that topic's mini quizzes. At the bottom are 2 end of class quizzes. Do the one with 70
questions. If you get over 80% or so, you should be good. If you get less, study a little more then
do the other longer one.

Also Write on your whiteboard each law and the workplaces it applies to (look in the excel
study guide, there's a tab with a table) so while you're studying you have right in front of you
Title VII, PDA, etc - 15, ADA - 20, and so on.