business law Flashcards
1
Q
Precedent
A
a controlling rule example or behavior.
2
Q
Stare decisis
A
the doctrine of a court following the precedent of an earlier court
3
Q
Judicial review
A
the power of the supreme court to consider whether a law lines up with the constitution
4
Q
Agency
A
a contract between a principal and an agent where a principal authorizes the agent to act on their behalf
5
Q
due diligence
A
reasonable steps taken by an employer to ensure that applicants are eligible to be hired
6
Q
Arbitration
A
a process for resolving collective bargaining impasses by which and arbitrator (3rd party) chooses a solution to the dispute
7
Q
FCA`
A
False Claims Act
enacted in 1863
this federal law imposes liability entities that defraud governmental programs
8
Q
20-factor Analysis
A
A guide adopted by the Internal Revenue Service for determining if a worker should be classified as an independent contractor.
9
Q
ADEA
A
Age Discrimination in Employment Act
1967
40+
10
Q
Common Law
A
Principles developed over centuries as a result of legal decisions made by judges in individual cases.
11
Q
Common Law Agency
A
A test that classifies a worker as an employee if the employer maintains the right to control the method of work performed.
12
Q
Constructive Discharge
A
Resignation of an employee because an employer allows working conditions that are no longer tolerable for any reasonable employee.
13
Q
Contract
A
A legally binding agreement between two parties.
14
Q
Covenant of Good Faith
A
A presumption that each party in a contract will deal with each other in good faith and fairness.
15
Q
Covered Employer
A
An employer that is engaged in a commerce industry and employs 15 or more employees.
16
Q
Covered Employment Agency
A
An agency that regularly procures employees for at least one covered employer; subject to employment law regulation.
17
Q
Dual Purpose Mission
A
Occurs when an employee conducts personal and work business at the same time; subjecting the employer to liability for the employee’s actions
18
Q
Economic Realities Test
A
A test that classifies a worker as an employee if the employee is substantially economically dependent on an employer.
19
Q
Employee
A
One who performs services under the direction and control of another.
20
Q
Employer
A
One who employs the services of others in exchange for wages.
21
Q
Employment-at-will Doctrine
A
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.
22
Q
Frolic and Detour
A
An employee’s physical departure from the job in order to further his or her own interests and not the employer’s.
23
Q
Going and Coming Rule
A
A legal principle that removes an employer’s liability from employees’ actions going to and from their place of employment.
24
Q
IRCA
A
Immigration Reform and Control Act
1952
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
25
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.
26
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.
27
Independent Contractor
A worker who is not subject to wage, discrimination, tax, or liability laws.
28
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.
29
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.
30
Intentional Interference with a Contract
An employee’s claim that a third party pressures the employer to terminate an employee without cause.
31
Joint Employer
Two entities, not engaged in an integrated enterprise, that each exert control over an employee.
32
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.
33
Judicial Review
The power of the Supreme Court to consider whether a law complies with the Constitution.
34
Law
A binding set of rules for human behavior established by legitimate authority.
35
NLRA
National Labor Relations Act
| 1938
36
Precedent
A controlling rule, example, or guide established by a judge that provides a framework for other judges to follow in later cases
37
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.
38
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.
39
Retaliatory Discharge
Termination of an employee as punishment for engaging in a protected activity.
40
Scope of Employment
Employee conduct that is reasonably relative to a job description.
41
Stare Decisis
(Latin for “let the decision stand”) the doctrine of a court following the precedent of an earlier court
42
Statute of Frauds
A doctrine that requires certain contracts to be in writing.
43
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.
44
Tort
A civil wrong which causes someone harm.
45
U.S Constitution
Established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens.
46
USERRA
Uniformed Services Employment and Reemployment Rights Act
47
Vicarious Liability
A form of secondary liability that comes from the doctrine of respondeat superior – “let the master answer for the servant”.
48
Adverse Job Action
A negative job action that results from an employee’s lawful actions.
49
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.
50
Back Pay
Monetary compensation for a plaintiff’s lost earnings.
51
Bona Fide Occupational Qualification (BFOQ)
A reasonable employment qualification that an employer is allowed to consider when making decisions about hiring and retaining employees.
52
Business Necessity
A legitimate business purpose that justifies an employment decision as effective and necessary.
53
Civil Rights Act of 1964
Enacted in 1964, it prohibits race discrimination in employment.
54
Comparative Evidence
Evidence of discrimination that is found by comparing two similarly situated employees who were treated differently because of a class characteristic.
55
Compensatory Damages
Monetary compensation necessary to replace a plaintiff’s losses.
56
Complaint
A formal allegation against a party .
57
Direct Evidence
Real, clear evidence of discrimination that requires no inference or consideration to prove its existence.
58
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.
59
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.
60
Equal Employment Opportunity Commission (EEOC)
The federal agency that enforces federal anti-discrimination laws and oversees all federal equal opportunity in employment regulations.
61
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.
62
Front Pay
Monetary compensation in lieu of reinstatement.
63
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.”
64
Injunctive Relief
A court order that prohibits a defendant from certain actions.
65
Intelligence Tests
Standardized assessments designed to assess human ability to learn or understand or to deal with new or trying situations.
66
Pattern and Practice
When an employer’s policies have the effect of discrimination for no legitimate business necessity.
67
Pretext
A false excuse used by an employer to cover up for discrimination.
68
Prima Facie
(Latin for “at first sight”) Evidence based on the first impression.
69
Punitive Damages
Monetary damages designed to punish an employer who acted maliciously or recklessly.
70
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.
71
Reinstatement
A remedy in which a former employee returns to his or her job.
72
Remedies
A desired action resulting from a successful lawsuit.
73
Retaliation Claim
A complaint filed by an employee who feels he or she was discriminated against in violation of the law.
74
Anti-female Animus
An environment of animosity toward women.
75
Comparable Worth Theory
The notion that men and women should receive equal pay when they perform work that requires comparable skills and responsibilities.
76
Equal Pay Act (EPA)
Passed in 1963, it requires nearly all employers to pay men and women equally for the same work.
77
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.
78
Gender Discrimination
The stereotyping of how a male or how a female should act.
79
Gender Plus Discrimination
Discrimination that results when an employer classifies employees on the basis of gender, plus another characteristic.
80
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).
81
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.
82
Sexual Harassment
Harassment directed at an employee because of his or her gender.
83
Supervisor
A managing employee who has power to take tangible employment actions against an employee.
84
Tangible Job Action
An employment outcome arising out of sexual harassment.
85
Unwelcome Conduct
Conduct that is not solicited by an employee and that a reasonable person would regard as offensive.
86
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.
87
Age Discrimination
Treating an applicant or employee less favorably because of his or her age.
88
Age Discrimination in Employment Act (ADEA)
Enacted in 1967, it protects employees who are 40 years of age and older.
89
Older Workers Benefit Protection Act (OWBPA)
Enacted in 1990, it allows employers to offer retirement incentives to older workers.
90
Reasonable Factor Other Than Age (RFOA)
An employer defense to a disparate impact claim that age was not a factor in an employment action.
91
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.
92
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.
93
Reasonable Accommodation
A reasonable change to the work environment that allows a religious individual to perform job functions.
94
Case Law
The law as laid down in the decisions of the courts (distinct from statutes or other sources of law).
95
Civil Law
Laws that deal with the rights of people rather than with crimes.
96
Color
Skin pigmentation characteristic of race, especially other than White.
97
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.
98
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.
99
Ethnicity
Traits, background, allegiance, or association.
100
Illegal Immigrants
A foreigner who has entered the country unlawfully.
101
National Origin
Location of birth.
102
National Origin Discrimination Harassment
Harassment that includes offensive comments about an employee’s national origin.
103
Race
A local geographic or global human population distinguished as a distinct group by genetically-transmitted physical characteristics.
104
Racial Animus
A type of race discrimination in which an employer obviously excludes an applicant from a job opportunity on the basis of race.
105
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.
106
Steering Assignment
A type of race discrimination in which an employer makes job assignments to employees based on race.
107
Title VII of the Civil Rights Act of 1964
Protects all races from discrimination.
108
ADA Amendments Act
Passed in 2008, it amends the ADA by adding new protections for employees with disabilities.
109
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.
110
Disability
A physical or mental condition that hinders an employee’s movement or activities.
111
Essential Functions
The skills, talents, and education necessary to carry out a job.
112
Impairment
Any loss or abnormality of a person’s physical or mental state.
113
Independent Living Movement
A movement of people with disabilities working toward self-motivation, self-respect, mainstreaming in society, and equal opportunity.
114
Major Life Activity
A daily activity that an average person can perform with little or no difficulty.
115
Reasonable Accommodation
A reasonable change to the work environment that allows an individual with a disability to perform job functions.
116
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.
117
Undue Hardship
An accommodation to the work environment that places a significant burden or expense on the employer.
118
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.
119
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."
120
Consent Decree
An agreement between two parties to resolve a dispute.
121
Executive Order 11246
Issued in 1965, it requires that government contractors take affirmative action toward prospective minority employees in all aspects of employment.
122
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.
123
Judicial Affirmative Action
A court-ordered affirmative action plan.
124
Organizational Display
An organizational chart that includes demographics data for all positions.
125
Placement Goal
A reasonably attainable objective to achieve equal employment opportunity.
126
Quota
An official limit on the number or amount of people or things that are allowed.
127
Reasonable Action
Sensible action taken to remedy an injustice or imbalance.
128
Reasonable Rationale
A sensible justification for an affirmative action.
129
Reasonable Self-analysis
A review of what a contractor’s workforce looks like.
130
Reverse Discrimination
Discrimination that occurs when an employer, acting under an affirmative action plan, favors one race or gender in an employment decision.
131
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.
132
Vietnam Era Veteran Readjustment Assistance Act
Passed in 1974, it requires contractors to take affirmative action toward veterans.
133
Voluntary Affirmative Action Plan
A plan put into place by an employer whose self-analysis reveals effects of past discriminatory action.
134
Workforce Analysis
A review of jobs, ranked by title and compensation.
135
Defamation
Communicating false statements that harm a person’s reputation.
136
Due Diligence
Reasonable steps taken by an employer to ensure that applicants are eligible to be hired.
137
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.
138
Explicit Contract
(Also known as "express contract") A verbal or written agreement in which the parties state exactly what they agree to do.
139
I-9
A form enacted under the IRCA that documents employee identity and right to work in the U.S. (specifies acceptable documents).
140
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.
141
Immigration and Nationality Act of 1952 (INA)
Enacted in 1952, it centralizes and organizes U.S. immigration law.
142
Mass Layoff
A workforce reduction at a single employment site during a 30-day period which is not caused by a plant closing.
143
Negligent Hiring
A claim in which the employer knew or should have known about an employee’s history of violence or untrustworthiness.
144
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.
145
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.
146
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.
147
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.
148
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.
149
Consumer Reporting Agency (CRA)
An entity that collects and provides information about persons for use in credit and/or employment evaluation.
150
Drug Free Workplace Act
`
Enacted in 1988, it requires federal contractors to enforce drug-free policies.
151
Drug Testing
A method of testing for an employer to prevent the use of drugs among its employees.
152
Electronic Communications Privacy Act (ECPA)
Enacted in 1986, it prohibits employers from intercepting or accessing employee communications.
153
Employee Polygraph Protection Act
Enacted in 1988, it prevents employers from using polygraph tests for recruiting or retention purposes.
154
Fair Credit Reporting Act
Enacted in 1970, it regulates reporting agencies’ collection, correction, dissemination, and use of consumer credit information .
155
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).
156
False Light
A type of tort in which an employer publishes statements about an employee that are untrue and hurt the employee’s reputation.
157
Intrusion Upon Seclusion
A type of tort in which an employer intrudes upon an employee’s private information.
158
Medical Testing
A method of testing for an employer to discover information about its employee’s impairments or health.
159
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.
160
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.
161
Pre-adverse Action
A statement issued to an applicant from an employer that discloses negative information found and information about his or her rights.
162
Privacy
The right of an individual to be left alone.
163
Privacy Act
Enacted in 1973, it governs the release of private information about public employees to federal agencies.
164
Public Disclosure of Private Facts
A type of tort in which an employer negligently or intentionally discloses an employee’s private information.
165
"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.
166
Clayton Act
Enacted in 1914, it prohibits the elimination of unions.
167
Closed Union Shop
An illegal requirement that an employee be a union member.
168
Collective Bargaining
The negotiation process between unions and employers.
169
Common Law Criminal Conspiracy
A combination of two or more individuals planning to accomplish an unlawful purpose.
170
Community of Interests
A community of people who align themselves with a common interest.
171
Concerted Activity
Any effort by employees to join together to seek improvement in working conditions.
172
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.
173
Federal Anti-trust Law
A law that prevents anti-competitive behavior within local commerce.
174
Federal Injunction
A legal remedy that allows a court to order individuals to refrain from harmful acts.
175
Federal Mediation and Conciliation Service (FMCS)
Established by Taft-Hartley, an agency to help management and laborers settle labor contract disputes.
176
Free Riders
An employee who does not belong to a union, but benefits from union representation.
177
Good Faith
A concept that requires a mutual obligation of both parties to participate actively in negotiations by demonstrating intent to resolve a dispute.
178
Illegal Bargaining Subject
A bargaining subject that cannot legally be implemented into a collective bargaining agreement.
179
Impasse
A deadlock reached by two bargaining parties whereby an issue cannot be resolved.
180
Labor Management Relations Act of 1947
Enacted in 1947, it curbs union overreaching by protecting employee rights and prohibiting wildcat strikes.
181
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.
182
Lock Out
An employer’s temporary work stoppage initiated during a labor dispute.
183
Mandatory Bargaining Subject
A required bargaining subject that involves wages, benefits, hours, and layoff procedures.
184
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.
185
National Labor Relations Act (NLRA)
Enacted in 1935, it establishes workers’ rights to form unions, collectively bargain, and strike.
186
National Labor Relations Board
A federal administrative agency that administers the provisions of the NLRA.
187
Norris-LaGuardia Act
Enacted in 1932, it governs the interplay between unions and businesses.
188
Official Bargaining Unit
A group of workers represented by a union in collective bargaining.
189
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.
190
Right-to-work Laws
Laws that give employees the option to not join a union.
191
Secondary Boycotts
A group’s refusal to deal with a business that is not directly involved in the dispute.
192
Sherman Anti-Trust Act
Enacted in 1890, it prevents businesses from combining together to restrain trade and seeking monopoly business power.
193
Strike
A work stoppage by mass refusal of employees to work.
194
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.
195
Unfair Labor Practices Strike
A stoppage of work in order to pressure management to follow the law.
196
Union Shops
A bargaining clause that allows a condition that all employees must join the union once hired.
197
Unions
An organization that represents workers in bargaining with employers.
198
Wildcat Strike
A strike by a portion of workers that is not authorized by the union.
199
Yellow Dog Contract
A document whereby an employee agrees not to organize or join a union.
