Exam 1 Rules Flashcards
Judicial Standard of Review
- Rational Basis Test
- Intermediate Scrutiny
- Strict Scrutiny
Rational Basis Test
rationally related, legitimate (economic, education, age)
Intermediate Scrutiny
substantially related, important (sex, gender)
Strict Scrutiny
narrowly tailored, compelling (color, religion, state alienage, privacy/same-sex marriage)
Equal Protection Clause
Compares individuals who are similarly situated and one belongs to a protected class
Due Process Clause
notice and hearing
Employee
agent under ER’s control
Independent Contractor
performs tasks according to their own methods
EE vs IC Analysis
- Control
- Documentation
- Relationship
- Payment Basis/Method
- Payroll Deductions
- Benefits
- Equipment/Training
- Opportunity for Profit/Loss
Restrictive Covenants
Non-compete
Non-solicitation
No-hire
Forum Selection Clause
Non-disclosure
Non-Compete Agreement (NCA)
EE not to take certain types of jobs or enter into competition with the ER (within a specified region and time period)
NCA Limitations
- must have a legitimate business interest
- must be reasonable in scope (industry, geographic) and duration (and not contrary to public interest)
Non-Solicitation Agreement (NSA)
EE not to take customers, suppliers, or colleagues from ER
No-Hire Agreement
2+ companies agree not to hire-away each other’s EEs
Forum Selection Clause (FSC)
predetermines the location/court where any legal proceedings related to employment must be initiated
Non-Disclosure Agreement (NDA)
confidentiality agreement
Doctrine of Inevitable Disclosure
protects ERs in absence of NDAs
Retaliation Case
- Protected Activity (EE)
- Adverse Action (ER)
- Causation (EE)
Promissory Estoppel Case
- ER promise
- EE reasonably relied upon promise
- EE suffers detriment
Discrimination Case
- Qualified
- Adverse Action
- Protected Class
Qualified
two similarly situated individuals who are equally qualified
Hostile Environment Case
- Unwelcome behavior
- Related to protected characteristics
- Creates hostile environment (severe or pervasive behavior)
Disparate Treatment
treating similarly situated EEs/applicants differently bc of a protected characteristic (intentional, overt, “facially” discriminatory)
Disparate Treatment Case
- Claim
- LNDR Defense
- Pretext
- BFOQ Defense
Legitimate, Nondiscriminatory Reason (LNDR)
Safety, Productivity, Supervision, Efficiency
Pretext
LNDR based on evidence that hides true intentions and motivation
Bona Fide Occupational Qualification (BFOQ)
permissible discrimination if integral to the “very essence” of business (never on race)
Disparate Impact
discriminatory effect of a facially neutral policy on a protected class
Disparate Impact Case
- Claim
- Business Necessity Defense
- Alternate Policy
Affirmative Action
Proactive steps to attain (not maintain) qualified statutorily mandated groups who are underrepresented in the workplace
What Affirmative Action is NOT
- require ERs to hire a less qualified person
- quotas
- grant preferential treatment
