Chapter 18: Employment Law

Question 1

employment at will doctrine

Answer 1

employee can be discharged at any time for any reason-employer need not show cause or any good reason

Question 2

when does the employment at will doctrine not apply?

Answer 2

if an employment contract for a definite term exists or the contract establishes the manner in which the employee may be terminated

Question 3

what conditions are commonly discussed in a written employment contract?

Answer 3

• termination by employer for cause
• termination by employee for cause
• employee quits w/o cause (and is in breach of contract)
• employer terminates employee w/o cause (breach)
• death of employee
• disability of employee

Question 4

exceptions to right to terminate an employee “at will”

Answer 4

• federal and state statutes regarding labor law and anti-discrimination laws
• contract theories
• public policy (whistleblower)
• tort theories (fraud)

Question 5

typical state worker’s comp. statute characteristics

Answer 5

• admin. procedure allows employees to receive compensation for injuries that occur on the job (no court action necessary)
• based on doctrine of strict liability of employer if injuries are on the job related
• employers are required by law to buy insurance to cover worker’s claims, pay into a state-managed fund or be self-insured
• amounts recoverable are established by statute
• this is the only remedy for the employee

Question 6

what amounts are recoverable?

Answer 6

• hospital and medical benefits
• disability benefits
• recovery for certain type of injury
• death benefits to dependents

Question 7

employer defenses to worker’s compensation claim

Answer 7

• employee really an independent contract and not covered by statute
• injury not employment related
• employee engaged in horseplay
• in WI if resulting from intoxication the compensation and death benefits are reduced by 15% but not exceeding $15,000

Question 8

occupational safety and health act

Answer 8

• OSHA
• 1970
• intended to promote safety in the work place-virtually all private employers are w/in scope of the act
• act imposes record keeping and reporting requirements on employers and requires them to post notices in the work place informing employees of their rights

Question 9

administered by occupational safety and health act

Answer 9

does not preempt state regulation (but state law must be at least as stringent as federal law)-OSHA must approve state places

Question 10

what safety standards does OSHA establish?

Answer 10

• general duty: to keep work enviro hazard free

- specific duties: very details

Question 11

compliance with OSHA enforcement and penalties

Answer 11

• OSHA empowered to conduct inspections
• OSHA issues citations which require the employer to abate or correct the situation w/in 6 mo. -employer can contest citation
• various civil and criminal penalties can be imposed on employers

Question 12

employer defense to OSHA

Answer 12

• compliance w/ the rule is not feasible

- employee misconduct caused violation of the rule

Question 13

can an employer discharge an employee who exercises their rights under OSHA?

Answer 13

no! even if employee was an at will employee, this would be regarded as an unlawful retaliatory dismissal

Question 14

equal opportunity in employment-discrimination in the work place

Answer 14

1. were you discriminated against w/ regard to a term, condition, or privilege of employment?
2. pretext-employers do not overtly or expressly discriminate

Question 15

what must the employee show to prove discrimination occurred

Answer 15

• employee was a member of a protected class and the decision was made adverse to the employee
• employee must make a prima facie showing that discrimination occurred

Question 16

whats prima facie is made who does the burden shift to?

Answer 16

the employer; they must articulate a legitimate, non-discriminatory basis for the decision

Question 17

after employer justifies the action who does the burden shift to?

Answer 17

back to the employee; they must prove that alleged legitimate, non-discriminatory basis is in fact, pre-textural

Question 18

equal employment opportunity commission

Answer 18

• federal agency responsible for enforcing most federal anti-discrimination laws
• 5 members appointed by president
• empowered to conduct investigations, interpret statutes, bring suit to enforce the law, and issue guidelines and regulations concerning enforcement policy

Question 19

WI counterpart of Equal employment opportunity commission

Answer 19

Department of Workforce Development-Equal Rights Division

Question 20

WI fair employment act

Answer 20

expands protected classes and coverages-prohibits discrimination on the basis of age, race, creed, color, handicap, marital status, sex, national origin, ancestry, arrest record, conviction record, membering in the national guard or other military forces, or for the use or non use of lawful products off the employer’s premises during non-work hours

Question 21

madison equal opportunity ordinance

Answer 21

same as Wisconsin + source of income, less than honorable discharge, physical appearance, sexual orientation, political beliefs or the fact that the person is a student

Question 22

equal pay act

Answer 22

• can’t discriminate btw employees on the basis of sex by paying wages at a rate less than the rate at which he pays wages to employees of the opposite sex
• scope of coverage extends to nearly all employers (but federal workers are exempt)
• extends to jobs that require skills or equal effort and are performed under similar working conditions

Question 23

statutory criteria that justify or permit differential in wages

Answer 23

• bona fide seniority based system
• bona fide merit based system
• quantity or quality of product
• any other factor other than sex

Question 24

remedies to unequal and unlawful pay

Answer 24

• private cause of action against employer

- employee can recover back pay and wages increased

Question 25

Title 7

Answer 25

-intended to eliminate job discrimination based on race, color, religion, sex or national origin

Question 26

scope of coverage of title 7

Answer 26

• employers with 15+ employees for 20 weeks in the current or preceding year
• all employment agencies
• labor unions w. 15+ members or that operate a hiring hall
• state and local Govs and their agencies
• most federal gov employment

Question 27

disparate treatment discrimination

Answer 27

• one on one discrimination
• need to show discriminatory intent on part of employer
  ex: employer terminates employee based on his race

Question 28

disparate impact discrimination

Answer 28

a facially natural rule or requirement of employer that in fact discriminates

Question 29

sexual harassment

Answer 29

unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature, including such conduct directed by a person at another person of the same or opposite gender

Question 30

employer duties related to sexual harassment

Answer 30

has duty to take prompt, appropriate action to deal w/ harassment which the employer knew or should’ve known occurred

Question 31

quid pro quo harassment

Answer 31

• this for that

- employer conduct that conditions job benefits for sex

Question 32

hostile enviro harassment

Answer 32

an employee who is subjected to a hostile intimidating or offensive work enviro which is so severe or pervasive that it alters the conditions of his/her employment

Question 33

employer defenses to sexual harassment claim

Answer 33

• claim is false
• conduct not unwelcome
• employee suffered no tangible negative employment action (in quid pro quo cases only)
• the conduct was not severe or pervasive (in hostile enviro cases only)

Question 34

enforcement of sexual harassment claim

Answer 34

complaint must be filed w the EEOC which is then given opportunity to sue employer on the complaintants behalf or issues right to sue letter for complainant to sue employer themself

Question 35

remedies to victims of sexual harassment

Answer 35

up to 2 years back pay, reasonable attorney’s fees, compensatory damages, reinstatement, granting seniority and injunctive relif

Question 36

defenses to title 7 claim

Answer 36

• bona fide merit based decision making based on an employee achieving defined goals
• bona fide seniority system to promote tenure on the job
• bona fid occupational qualification (never applicable to race or color disc.)
• any other legitimate business reason

Question 37

age discrimination employment act

Answer 37

• 1967

- prohibits age disc. in all employment decisions

Question 38

scope of coverage for age discrimination employment act

Answer 38

• non-federal employers with at least 20 non-seasonal employees
• labor unions with 25+ members
• employment agencies
• state/local gov employees

Question 39

enforcement of age discrimination employment act

Answer 39

• administered by EEOC
• actions generally brought by EEOC, but private plaintiffs can also sue under ADEA but must first file a complain w./ the appropriate state agency and the EEOC

Question 40

remedies for the age discrimination employment act

Answer 40

unpaid back wages, attorney’s fees, and equitable relief including hiring, reinstatement, and promotion

Question 41

defenses to the age discrimination employment act

Answer 41

• a bona fide occupational qualification
• bona fide seniority system
• bona fide employee benefit plan (linked to age)
• other legit business reason

Question 42

Americans w/ disabilities act

Answer 42

(1990-amended in 2008)

• imposes significant obligations on employers/providers of public transportation, telecommunications and public accommodations to accommodate ind.s w/ disabilities
• prohibits employment related discrimination

Question 43

scope of the Americans w/ disabilities act

Answer 43

employers with 15+ employees

Question 44

qualified individual w/ disability

Answer 44

a person who with or without reasonable accommodation can perform the essential functions of the job

Question 45

disable person

Answer 45

someone who has:

• a physical or mental impairment that substantially limits one or more of his or her major life activities
• a record of such impairment
• is regarded as having such impairment

Question 46

what does title 1 of the Americans w/ disabilities act do?

Answer 46

limits the employer’s ability to inquire into or test for an applicant’s disabilities-forbids an employer from asking a job applicant about the existence, nature, and severity of a disability

Question 47

what the employee must prove to show the Americans w/ disabilities act was not followed

Answer 47

• employee is a qualified individual w/ disability
• employer knew of employee’s disability
• the employee could perform the essential functions of the job w/ some accommodation
• the employer failed to reasonably accommodate the disability

Question 48

enforcement of the Americans w/ disabilities act

Answer 48

administered by the EEOC following the procedural framework of title 7 actions

Question 49

remedies for the Americans w/ disabilities act

Answer 49

injunction, hiring or reinstatement (with or without back pay) and payment of attorney’s fees

Question 50

employer defenses against being accused of breaking Americans w/ disabilities act

Answer 50

• accommodations would cause undue hardship (significant difficulty or expense)
• applicant cannot satisfy a test, standard, or selection criteria that is job-related and cannot be accommodated
• applicant would pose a direct threat to the health or safety of others in the work place
• food handlers defense (does not apply to HIV)
• religious entity preference rights