Employment Law Flashcards
To which employers is the Title VII of the Civil Rights Act of 1964 (EEOC) applied to
under federal law, if employer has 15 ore more employees on payroll each working day of at least 20 weeks in current or preceding calendar year
state law threshold may be less
What are the requirements of Title VII of Civil Rights Act of 1964 ?
Enforced by EEOC
Forbids discrimination against any worker or job applicant on the basis of citizenship status, disability, race, color, religion, sex, national origin, age, marital status, veteran status
What are the 10 factors that are prohibited from discrimination by employers in the Civil Rights Act of 1964?
1) citizenship status
2) disability
3) race
4) color
5) religion
6) sex
7) national origin
8) age
9) marital status
10) veteran status
What are the exemptions to the Civil Rights Act of 1964?
It is NOT unlawful for for an employer to:
pay different wages or provide terms or priveleges of employment if decisions are based on a bona fide merit, seniority or other system designed to measure quantity or quality of work
take religion, sex, national origin (NOT RACE) into account making employment decisions when these factors are legitimate
base employment decisions on the results of professionally validated ability tests that are not designed, intended or used to descriminate
pregnancy discrimination act amendment is another exception
What is the pregnancy discrimination act amendment?
pregnant woman and related conditions must be treated the same as other applicants and employees on the basis of her ability or inability to work
treated same as other causes under health insurance, fringe benefits, leaves of absence and return to work rights
cannot refuse to hire, discharge or promote a woman because she is pregnant might become pregnant or had an abortion
cannot require pregnant worker to take a leave at arbritraliy determined point in pregnancy
official EEOC notice must be POSTED
What is the Civil Rights Act of 1991?
enacted to amend parts of Title VII Civil Rights Act of 1964
restore and strengthen civil rights laws that ban discrimination in employment and for other purposes
applies changes that allow certain actions such as trial by jury and provides for damages in cases where there is intentional employment discrimination
expanded the the sex discrimination protections to GENDER IDENTITY
prohibits discrimination based on race, color, sex, religion, national origin, age, disability, AND GENETIC INFORMATION
also prohibits REPRISAL for protected activity
The Civil Rights Act of 1991 made amendments to section 1981 of the Reconstruction Era Civil Rights act of 1866. What are they?
Everyone in US has same right to make and enforce contracts, to sue, be parties, give evidence and full and equal benefit of all laws and proceedings
Since employment is a CONTRACTUAL relationship, law applies to private employers
The law has been construed by courts to protect the contract relationship of employment of a worker and to cover bias against all ethnic minorities
Race, color, national origin, citizenship and ethnicity discrimination claims can be brought under section 1981
NO POSTING REQUIREMENT
What is the Age Discrimination in Employment Act? (ADEA)
Prohibits employers from discriminating against workers or applicants who are 40 years of age or older
enforced by EEOC
official ADEA notice must be POSTED
What is the Age Discrimination Act of 1975?
Along with Executive Order NO 11,141 broadly prohibits all age discrimination
What is the Americans with Disabilities Act (ADA) 1990?
prohibits laboratories with 15 or more employees from discriminating against qualified individual with a diasbility BECAUSE OF HIS OR HER DISABILITY
ADA requires labs to provide reasonable accomodations to assist disabled individuals in performing essential functions of their jobs
What is a disability under ADA?
physical or mental impairment that substantially limits one or more major life activities
OR
has a record of such impairment
OR
is judged to have such an impairment
What does physical or mental impairment mean according to ADA?
physiological disorder, cosmetic disfigurement, anatomical loss affecting one ore more of the following: neurological, musculoskeletal, special sense organs, respiratory, speech, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic, skin and endocrine
OR
mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities
What are major life activities according to ADA?
basic functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breaching, learning and working
How does ADA define substantially limits?
unable to perform a major life activity that average person in general population can
OR
compared to general population is significantly restricted as to the condition, manner or duration the individual can perform major life activity
What are other factors to consider in assessing whether an individual is substantially limited in major life activity?
nature and severity of impairment
duration or expected duration
AND
actual or expected permanent or long term impact of or resulting from impairment
Does the identity or name of the impairment determine whether a person is disabled?
NO, the effect the impairment has on the life of individual NOT the identity
disability for one person may be just inconvenience for another
What are examples of specific conditions and disabilities protected by the ADA?
include AIDS, HIV, epilepsy, paralysis, cerebral palsy, muscular dystrophy, MS, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities and identifiable stress disorders
Are minor or temporary disabilities considered disabilities under ADA?
NO
Are physical characteristics like left handedness, predispositions to disease, personality traits, prison record, environmental, cultural or economic disadvantages covered by ADA?
NO
Are sexual behaviors like homo, bi, trans, pedo, transex, exhibitionism, voyeurism, compulsive gambling, klepto, payro, gender identity disorders, psychoactive substane abuse disorders and use of illegal drugs covered by ADA?
NO
Is pregnancy covered by the ADA?
NO pregnancy is not considered a disability under ADA
According to ADA, who are qualified individuals with disabilities?
an individual with a disability who satisfies the requisite SKILL, EXPERIENCE, EDUCATION and other job-related requirements of the employment position
with or without reasonable accommodation can perform the essential functions of the position
What are examples of specific conditions provided protection under ADA?
work-qualified HIV
former drug users rehabilitated or supervised rehab programs
alcoholics otherwise qualified unless pose safety threat
In Which aspects of employer functions are they prohibited from discrimination against qualified individuals with disabilities on the basis of such disabilities?
job application including recruitment, interviewing and testing
hiring, layoff, recall, termination
evaluation or promotion
leave, compensation or other fringe benefits
job training
any other terms or conditions of employment
What are examples of discriminatory practices under ADA?
failure to make reasonable accommodations unless undue HARDSHIP would result
denial of employment opportunities if based on individuals need for accommodation
application of qualification standards, tests, selection criteria or eligibility criteria unless they are business necessity or job related
denial of an equal opportunity or benefit to qualified individual based on a known relationship with disabled individual
limiting, segregating, classifying individual in way that adversely affects opportunities, or status based on existence of disability
using standards, criteria or administration methods that have effect of discrimination on basis of disability or perpetuate discrimination of others who are subject to common administrative control
using employment tests, medial examinations, that reveal impaired sensory, manual or speaking skills of disabled
participating in contractual or other relationships that subject applicants/employees to discrimination otherwise forbidden by ADA
Under ADA are employers allowed to ask pre-employment questions to assess the ability of an individual with disability to perform job-related functions?
YES
prohibits inquiries or medical exams designed to determine the existence, nature and extent of an applicant’s disability
What kinds of questions or inquiries are prohibited by ADA during interview?
Can ask about ability to perform job related functions
Can’t ask about medical examinations or disability specifically
inappropriate questions:
Impairments, health, phsychiatric history, drug/alcohol, how disability occurred, previous work attendance related to disability, family history of illness,
whether applicant has any disability or medical condition that will prevent person from performing the job
Can employer ask if applicant has disability or medical condition that will prevent person from performing job?
NO can only ask questions to assess ability to perform job related functions
Does ADA require employers to post notices about the law’s provisions?
YES must post in a conspicuous place notices
Who is responsible for enforcement of ADA?
ADA establishes overlapping responsibilities in both EEOC and DOJ for employment by state and local governments
federal enforcement will be coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities
For private and governmental employers already covered by nondiscrimination and affirmative action requirements under Rehabilitation Act of 1973, EEOC, DOJ and Department of Labor will coordinate enforcement under ADA and Rehabilitation Act
What constitutes reasonable accommodations to known disability of an otherwise qualified individual?
modifications to facilities to make readily accessible
Job restructuring
modifying work schedules
reassigning to vacant positions
acquiring or modifying equipment or devices
adjusting or modifying exams, training materials, policies
providing interpreters or readers
What is considered undue hardship exemption from reasonable accommodations by employer under ADA?
determined by nature and cost of accommodation, size and type of the facility, financial resources of the employer, nature of the employer’s operation including composition, structure and functions of workforce
Who is the Equal Pay Act of 1963 (EPA) applied to?
amendment to Fair Labor Standards Act (FLSA)
applies to employers with 2 or more employees AND having sales volume exceeding 500,000 engaged in interstate commerce
What is prohibited by the EPA of 1963?
prohibits employers from paying workers of one sex less than the rate paid to opposite sex for work on jobs that require equal skill, effort and responsibility
AND
are performed under similar working conditions
EXCEPT
where pay is based on seniority, merit system, a piece work rate or differential based on any factor besides SEX
Who enforces EPA?
EEOC
What is he Fair Labor Standards Act FLSA ?
minimum wage of 7.25 and wage rate of 1.5 times employees regular rate for each hour in excess of 40 hours in a work week , 80 in 14 days in hospitals
EXEMPT from overtime are outside salespersons, professional, executive and administrative personnel paid more than 35,568 per year
Who are exempt from FLSA ?
Outside salespersons,
profesional, executive
and administrative personnel
and
paid more than 35,568 /year
What new regulations were effective January 1, 2020 for FLSA?
raised standard salary level to 35,568/year
raised highly compensated employees level from 100k to 107k
allow employers to use non discretionary bonuses and incentive payments including commissions that are paid at least annually to satisfy up to 10% of standard salary level
revising special salary levels for workers in us territories and motion picture industry
How does a person qualify for the learned professional exemption from FLSA?
employee’s primary duty must be
1)performance of work requiring advanced knowledge
2)in a field of science or learning
3) customarily acquired by prolonged course of specialized intellectual instruction
To whom is the learned professional exemption NOT applied?
occupations performed with only general knowledge acquired by academic degree in any field
knowledge acquired through apprenticeship
or with training in performance of routine mental, manual, mechanical or physical processes
occupations which most employers acquired their skill by experience rather than by advanced specialized intellectual instruction
What are examples of professions who meet learned professional exemption?
registered or certified medical technologists
nurses
dental hygenists
physician assistants
accountants (not clerks, bookkeepers others doing routine work)
chefs (not cooks performing routine mental, manual, mechanical or physical work)
paralegals with advanced specialized degrees in other professional fields and apply advanced knowledge to their duties. NOT general paralegals and assistants
athletic trainers
funeral directors/embalmers
How are occupations added to the learned professional exemption?
when advanced specialized degree has become standard requirement for a particular occupation, that occupation may have acquired characteristics of learned profesional
when accrediting and certifying organizations similar to those for current learned professional occupations, are created
these organizations may develop similar specialized curriculums and certification programs, which if become a standard requirement for a particular occupation, may indicate it is now a learned profession
How long must an employer preserve payroll records, sales and purchase records or collective bargaining agreements?
at least 3 years
How long must records on which wage computations are based be retained?
2 years
these include timecards, piece work tickets, wage rate tables, work and time schedules, records of additions to or deductions from wages
What kinds of information must be kept about each non-exempt employee?
full name, SS number, address, birth date, sex and occupation, time and day of week when work begins, hours worked each day, total hours each week, basis for wages, regular hourly pay rate, total daily/weekly straight time earnings, total overtime earnings for week, all additions or deductions, total wages each pay period, date of payment and pay period covered
What is the Employee Retirement Income Security Act (ERISA)?
Requirements for tax qualified, employer-sponsored pension and retirement plans and certain welfare plans that provide medical, accidental death, disability and unemployment benefits
Establishes Pension Benefit Guaranty Corporation which guarantees payment of covered pension programs
Enforced by Departments of Labor and Treasury
Who enforces ERISA?
Departments of Labor and Treasury
What is the consumer protection act?
Limits wages subject to garnishment and prohibits discharge of an employee for wage garnishment arising from indebtedness or child support payments
states may establish additional limits on garnishments and employer’s rights to discharge workers whose wages are garnished for debts
What is the Federal Insurance Contribution Act (FICA)
Applies to all employers
Establishes Social Security - old age, survivors and disability insurance (OASDI)
AND
hospital insurance (Medicare) tax for employers and employees
For 2020 - 7.65% for both employer and employee
6.2% social security tax on first 117k and 1.45% for medicare
Maximum SS tax is $7,254 by employer and employee
No cap on Medicare tax
What is the FICA tax rate?
7.65% for both employer and employee
6.2% SS on first 117K
1.45% for Medicare
MAXIMUM SS is 7,254 by employer and employee
NO CAP on MEDICARE TAX
What is the Federal Unemployment Tax Act (FUTA)?
6.2% tax on first 7,000 in wages
Allows up to 87.1% credit for payment to state unemployment insurance agency
PAID BY EMPLOYER
What is the National Labor Relations Act (NLRA)
Defines labor relations rights of workers and employers
prohibits unfair labor practice
specifies collective bargaining and labor dispute obligations and rights
Enforced by National Labor Relations Board (NLRB)
not for profit hospitals and nursing homes covered by 1974 amendments
8 bargaining units established: physicians, RN, all professionals except nurses, technical, business office/clerical employees, skilled maintenance, all guards, all nonprofessionals
What is the Immigration Reform and Control Act of 1986?
unlawful for employers to recruit, refer for a fee, hire or continue to employ illegal immigrants to US
Job applicants must be US citizens or authorized aliens
fines for knowingly hiring and continuing to employ unlawful employees range from 600 to more than 20,000
How was COBRA changed by American Recovery and Reinvestment Act of 2009?
Effective March 1 2009
Require employee to pay 35% of premium and employer must pay 65%
COBRA payment for individuals is tax deductible if AGI <125K
What is Consolidated Omnibus Reconciliation Act (COBRA)?
20 or more employees who provide health insurance required to offer workers continued health insurance coverage including dental and vision for 18 or 36 months depending on qualifying events
Exception: gross misconduct
Divorced, surviving or medicare ineligible spouses of such workers and dependent children entitled to extend coverage to 36 months
Employers may charge up to 102% of premium
Employee have 60 days after qualifying event to accept
IF LESS THAN 20 EMPLOYEES INVESTIGATE STATE LAWS for obligation
What are the main components of Health Insurance Portability and Accountability Act (HIPAA)?
Employers offering health care benefits must take into account requirements of HIPAA regarding health plan design, administration and communication
HIPAA guarantees availability and portability of health coverage WITHOUT regard to health related factors and pre-existing conditions
Employer sponsored group health plans CANNOT deny an employee access because of health related factors affecting employee or dependents
Health factors that CANNOT be used to determine eligibility: health status, medical condition, physical mental illness, claims experience, receipt of health care, medical history, genetic information, disability status and evidence of insurability
What was original intent of HIPAA?
Help continuation of health insurance coverage when individual left job
However, now it is considered more about privacy protection than original intent because of that provision
What is Worker Adjustment and Retraining Notification Act (WARN)?
Requires 60 days notice if single site of employment or facility within single employment site is temporarily or permanently shut down and 50 or more full time employees suffer an employment loss during any 30 day period as a result
covers employers with 100 or more full time and part time employees who work combined total of at least 4000 hours per week excluding overtime
Employment loss = loss of work for more than 6 months, termination or reduction of more than 50% in work hours that will last for 6 months or more
EXCLUDES NATURAL DISASTERS or UNFORSEEABLE BUSINESS CIRCUMSTANCES
What is the Employee Polygraph Protection act of 1988 (EPPA)?
Restricts use of lie detection tests in workplace - polygraphs, voice stress analyzers and similar devices
federal, state and local governments are EXCLUDED
Federal government contractors engaged in national security intelligence functions also EXCLUDED
What exemptions are provided by EPPA where polygraph (but no other lie detector test) may be administered in the private sector?
To employees reasonable suspected of involvement in workplace incident resulting in economic loss to employer and had access to property that is under investigation
prospective employees of armored car, security alarm, security guard firms who protect facilities, materials, operations affecting health/safety, national security or currency and other like instruments
prospective employees of pharmaceutical and other firms authorized to manufacture, distribute or dispense controlled substances who will have direct access AND current
POSTER REQUIRED
What is the Rehabilitation Act of 1973?
prohibits FEDERAL CONTRACTORS from discriminating against otherwise qualified people with disabilities
requires FEDERAL CONTRACTORS to take AFFIRMATIVE ACTION to employ individuals with disabilities
also provides jointly financed government-employer agreement to expand opportunities for disabled people
What is the Vietnam Era Veterans’ Readjustment Assistance Act of 1974?
People who served in military during Vietnam War and certain disabled veterans must be hired and promoted
Applies to all FEDERAL CONTACTORS, SUBCONTRACTORS that have federal contract
EEOC notice must be posted
What is the Uniformed Services Employment and Reemployment Rights Act of 1994?
Prohibits discrimination by employers against individuals for any membership in a uniformed service and provides employees who leave their jobs for military service certain reemployment rights
Entitles military service personnel to return to their civilian employment with the seniority, status and pay they would have attained
Employer NOT required to reemploy individual if employment to military service was for BRIEF, NON-RECURRENT period and no expectation of indefinite employment
Law REPLACED Veterans’ Reemployment Rights Act
What is the Consumer Credit Reporting Reform Act of 1996?
Revises Fair Credit Reporting Act (FCRA)
Employers need to make sure individuals credit history is job-related consideration
Must notify and obtain permission from applicants before requesting consumer reports
DOES NOT need reauthorization to repeat on individual later
What is the Personal Responsibility and Work Opportunity Reconciliation Act of 1996?
Federal law mandates that all state child support programs must require employers to report new hires to state directory within 20 days of hire date
must include: employee name, address, SS number and employer name, address and federal employer identification #
What is the purpose of Patient Protection and Affordable Care Act of 2010?
Signed march 23 2010
amended by Health Care and Education Reconciliation Act signed March 31, 2010
AKA ACA or federal health care reform
provisions intended to expand access to insurance, increase consumer protections, emphasize prevention and wellness, improve quality and system performance, expand the health workforce and curb rising health care costs
What are key provisions of ACA effective jan 1, 2014?
require employers to cover their workers or pay penalties with exceptions for small employers
provide tax credits to certain small businesses that cover specified costs of health insurance for their employees beginning in 2010
require individuals to have insurance with some exceptions such as financial hardship or religious belief
What are the employee number thresholds for coverage under ACA?
Employers with more than 200 must automatically enroll new full time employees in coverage
Does federal law grant employees right to inspect their personnel files?
NO, many status provide these rights
about 1/2 of states have laws giving employees right to access and copy their personnel files
What are the two recognized forms of sexual harrasment under Civil Rights Act of 1964?
quid pro quo sexual harassment
hostile environment sexual harassment
Does Title VII of the Civil Rights Act refer to sexual harassment?
No
prohibits employment discrimination based on sex
What are the prohibitions around sexual harassment according to guidelines issued by Equal Employment Opportunity Commission?
any unwelcome sexual advances, requests for sexual favors, other verbal or physical conduct of sexual nature is sexual harassment when:
submission is term or condition of employment
basis for employment decisions
conduct has purpose or effect of unreasonably interfering with work performance or creating intimidating, hostile or offensive working environnent
Does sexual harassment law have posting requirement?
NO posting requirement
Sexual harassment policies must be in writing and distributed to all employees
Can sexual advances outside the workplace be considered harassment?
YES
Which 15 Federal Laws must be Posted?
1) ADA
2) ADEA
3) Civil Rights Act of 1964 (Title VII) (EEOC)
4) Civil Rights Act of 1991
5) Civil Rights Act (Reconstruction era, Section 1981)
6) COBRA
7) Consumer Credit Protection Act
8) Employee Polygraph Protection Act
9) Equal Pay Act
10) Fair Labor Standards Act (FLSA)
11) FMLA
12) FICA
13) HIPAA
14) Service Contract Act
15) OSHA
How many employees required to trigger coverage for Americans With Disabilities Act?
15
How many employees required to trigger coverage for Age Discrimination in Employment Act?
How many employees required to trigger coverage for
How many employees required to trigger coverage for Civil Rights Act of 1964 (Title VII) EEOC?
15
How many employees required to trigger coverage for Civil Rights Act of 1991?
1 or more
How many employees required to trigger coverage for Civil Rights Act (Reconstruction Era, Section 1981)
1 or more
How many employees required to trigger coverage for Consolidated Omnibus Budget Reconciliation Act (COBRA)?
20
How many employees required to trigger coverage for Consumer Credit Protection Act?
1 or more
How many employees required to trigger coverage for Employee Polygraph Protection Act?
1 or more
How many employees required to trigger coverage for Employee Retirement Income Security Act?
1 or more
How many employees required to trigger coverage for Equal Pay Act?`
1 or more
How many employees required to trigger coverage for Fair Labor Standards Act?
1 or more
How many employees required to trigger coverage for Family and Medical Leave Act?
50 or more within 75 miles of work site
How many employees required to trigger coverage for Federal Insurance Contributions Act?
1 or more
How many employees required to trigger coverage for Federal Unemployment Tax Act?
25
How many employees required to trigger coverage for HIPAA?
1 or more
How many employees required to trigger coverage for Immigration Reform and Control Act?
1 or more
How many employees required to trigger coverage for National Labor Relations Act?
All except employers of agricultural and domestic workers, individuals employed by a parent or spouse, independent contractors, supervisors and employees covered by Railway Labor Act
How many employees required to trigger coverage for Patient Protection and Affordable Care Act of 2010?
50 or more
How many employees required to trigger coverage for Rehabilitation Act?
All federal contractors and subcontractors with 50 or more employees and contract of 50k or more
How many employees required to trigger coverage for Service Contract Act?
All contractors providing services to a federal agency- contracts in excess of 2500
How many employees required to trigger coverage for Uniformed Services Employment and Reemployment Rights Act?
1 or more
How many employees required to trigger coverage for Occupational Safety and Health Act?
1 or more
How many employees required to trigger coverage for Worker Adjustment and Retraining Notification Act?
Employers with 100 or more employees
