Employment Law Flashcards
Employment at Will
Fire or hire at any point, take jobs or quit, can fire for any reason or no reason at all as long as it’s not discrimintation
Employee
Subject to greater control by employer, agent of employer, taxes, workers comp.
Independent Contractor
Hired to perform a particular task, no direct employer control, own schedule and supplies
Employee vs. Independent Contractor Factors
Who controls method of performance?
Degree of skill involved?
Payment type?
Who supplies tools?
Right to refuse a job?
Work for anyone else?
Length of employment?
Part of the principal’s primary business?
Employment Relationship
Agent agrees to act for the principal, principal bound by agent’s actions
Express Authority
Power you’ve been specifically given
Implied Authority
Reasonably necessary to complete express authority job
Apparent Authority
Employer causes 3rd party to reasonably think the employee has the authority (placing employee behind counter)
Agent’s Duties
Performance, notification (share info), loyalty (act on principal’s best interest), obedience, accounting
Principal’s Duties
Compensation (timely), reimbursement and indemnification (business covers liability incurred by employee), cooperation, safe working conditions and compliance
Doctrine of Respondent Superior
Employer is liable for employee actions when employee is acting within scope of job
What is employer liable for?
Agreements made within the scope of the employee’s authority, tort committed by employee (within job scope), crimes if done on employer’s behalf
Exceptions to Employment at Will Doctrine
Contract, Federal Law, State Law, public policy (common law)
An employer’s violation of employment results in a …
Wrongful discharge lawsuit
Title VII of the Civil Rights Act of 1964
Prohibits job discrimination on the basis of race, color, national origin, religion, and gender
Sexual harassment protection
Applies to all stages of employment
Disparate Treatment
Overt discriminatory act
Disparate Impact
Neutral on face but negative impact on protected classes
Who are discriminatory complaints filed to?
Equal employment opportunity commission, not court
Parts of discriminatory complaint
Member of protected class, applied and was qualified, was rejected, employer continued to seek applicants or filled position with a non-protected class applicant
Quid Pro Quo Sexual Harassment
Sexual favors for work rewards
Hostile Environment Harassment
Alters the work environment significantly (jokes, advances)
Damages are lost wages, lost benefits, etc
What size companies do the civil rights act apply to?
15+ employees
Family Medical Leave Act (FMLA)
Leave for significant family/medical reasons, for full-time employees, unpaid, 12 weeks of leave within a 12 month period, employers of 50+ employees
Age Discrimination in Employment Act (ADEA)
Protects individuals 40+ years, applies to hiring, promoting, and termination
Unemployment Insurance
Protects ability to collect unemployment if requirements are met, gives you time to find new job, if fired for misconduct can’t collect
American with Disabilities Act (ADA)
Protects otherwise qualified individuals with a disability, reasonable accommodations for essential functions of the job, Employer doesn’t suffer undue hardship to accomodate
ADAAA
Determines disability status on uncorrected condition
What is a disability?
Substantially limits a major life activity (glasses not included)
Prima Facie Case (TEST)
Using ADA
1) Employee has disability
2) Reasonable Accomodation?
What is the reasonable accomodation part of Prima Facie?
Employee must have informed employer of disability and requested accomodation
Accomodation is available and would have been effective and did not impose undue hardship on employer
Employer failed to provide the reasonable accomodation
Disability in Prima Facie Case
Major life impairment
negaitive job action based on disability
qualified and able to perform essential functions of job
Fair Labor Standards Act (1938)
Minimum standards for employers who engage in interstate commerce, child labor, max. hours, min. wage, exempt vs. non-exempt, whistleblower protections
Retirement and Income Security
Social security act and employment retirement income security act
Social Security Act
Retirement, survivors, disability and hospital insurance
Paid into from federal insurance contributions act (FICA)
Employment Retirement Income Security Act (ERISA)
Regulates private pension and health insurance, our contributions to retirement can be pulled out at any point, 5 year max wait for employer contributions
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Mandates the employer allows you to keep insurance for a period after termination, employee must pay cost
Occupational Safety and Health Act (OSHA)
Workplace safety standards, requires employer to keep records of all work-related injuries, training standards, whistleblower protections
Workers Compensation
Compensation for employees injured on the job, standized compensation rate, strict employer liability
Employer Defenses to Employment Law
Defend on the facts, business necessity, training, Bona Fide Occupational Qualification, seniority systems
Bona Fide Occupational Qualification
Trait essential to job
Seniority Systems
Promotions, benefits distributed according to a fair seniority system
