Final Exam (Chapters 37-39) Flashcards

Question

Vicarious Liability

Answer 1

Imposing liability for the fault of another. This situation arises both when an employer's employee or a principal's agent commits the wrong. The rules of law governing the ___ ____ of the principal and the employers are the same.

Answer 2

Historically, the act for which liability would be imposed under the doctrine of respondeat superior was a negligent act committed within the scope of employment.

Answer 3

Under the common law, a master was not liable for an intentional tort committed by a servant. The modern law holds that an employer is liable for intentional tort committed by an employee for the purpose of further the employer's business..

Answer 4

Modern decisions hold the employer liable for fraudulent acts or misrepresentations. The rule is commonly applied to a principal-agent relationship. To illustrate, when an agent makes fraudulent statements in selling stock, the principal is liable for the buyer's loss. In states that follow the common law rule of no liability for intentional torts, the principal is not liable for the agent's fraud when the principal did not authorize or know the agent's fraud.

Answer 5

The employer may be liable because of the employee's violation of a government regulation. These regulations are most common in the areas of business and protection of the environment. In such cases, the employer may be held liable for the penalty imposed by the government. In some cases, the breach of the regulation will impose liability on the employer in favor of a third person who is injured as a consequence of the violation.

Answer 6

The mere fact that a tort or crime is committed by an employee does not necessarily impose vicarious liability on the employer. It must also be shown that the individual was acting within the scope of authority if an agent or in the course of employment if an employee. If an employee was not acting within the scope of the employment, there is no vicarious liability.

Answer 7

This act declares that the United States shall be liable vicariously whenever a federal employee driving motor vehicle in the course of employment causes harm under such circumstances that a private employer would be liable. Contrary to the general rule, the statute exempts the employee driver from liability.

Answer 8

In addition to a complaint against the employer based on the doctrine of respondeat superior, a lawsuit may often raise a second theory, that of negligent hiring or retention of an employee. -Unlike the respondeat superior theory (by which the employer may be vicariously liable for the tort of an employee) the negligent hiring theory is based on the negligence of the employer in the hiring process.

Answer 9

An employee commits an intentional tort, almost invariably outside the scope of employment, against a customer or the general public, and the employer knew or should have known that the employee was incompetent, violent, dangerous or criminal.

Answer 10

An employee may be liable on a theory of negligent hiring when it is shown that the employer knew, or in the exercise of ordinary care should have known, that the job applicant would create an undue risk of harm to others in carrying out job responsibilities. It must also be known that the employer could've reasonably foreseen injury to the third party. Simply, An employer who knows of an employee's preemployment drinking problems and violent behavior may be liable to customers assaulted by that employee.

Answer 11

By having each prospective employee fill out an employment application form and then checking into the applicant's work experience, background, character and qualifications. -This would be evidence of DUE CARE IN HIRING.

Answer 12

Filling out an application form and conducting a personal interview would be satisfactory for hiring an outside maintenance person. (But a full background inquiry would be necessary for hiring a security guard). However, such inquiry does not bar respondeat superior liability.

Answer 13

The hiring of an individual with a criminal record does not by itself establish the tort of negligent hiring. An employer who knows that an applicant has a criminal record has a duty to investigate to determine whether the nature of the conviction in relationship to the job to be performed creates unacceptable risk to the third persons.

Answer 14

Courts assign this on a basis similar to that of negligent hiring. That is, the employer knew, or should have known, that the employee would create an underground risk of harm to others in carrying out job responsibilities. A hospital is liable for this when it continues the staff privileges of a physician that it knew or should have known had sexually assaulted a female patient in the past.

Answer 15

A separate theory of liability in addition to the doctrine of respondeat superior is that of ___ _____ and _____ that holds the principal directly liable for its negligence in regard to training and supervision of its employees and agents.

Answer 16

A principal is liable for the crimes of an agent committed at the principal's direction. When not authorized, however, the principal is ordinarily not liable for an agent's crime merely because it was committed while the gent was otherwise acting within the scope of the latter's authority or employment. Court's now hold an employer criminally liable when the employee has in the course of employment violated environmental protection laws, liquor sales laws, pure food laws or laws regulating prices or prohibiting false weights.

Answer 17

If work is done by an independent contractor rather than by an employee, the owner is not liable for the harm caused by the contractor to the third persons or their property. Likewise, the owner is not bound by the contracts made by the independent contractor. The owner is ordinarily not liable for harm caused to third persons by the negligence of the employees of the independent contractor.

Answer 18

In certain circumstances, such as providing security for a business, collecting bills and repossessing collateral, there is an increased risk that torts may be committed by the individuals performing such duties. The trend of the law is to refute to allow the use of an independent contractor for such work to insulate the employer.

Answer 19

In some situations, the owner appears to be doing the act in question because the existence of the independent contractor is not disclosed or apparent. This situation occurs most commonly when a franchisee does business under the name of the franchisor; when a concessionaire, such as a restaurant in a hotel, appears to be the hotel restaurant, although in fact it is operated by an independent concessionaire; or when the buyer of a business continues to run the business in the seller's name. In such cases it is generally held that the apparent owner (that is, the franchisor, the grantor of the contractor or the seller) is liable for the torts and contracts of the undisclosed independent contractor.

Answer 20

A lawsuit may be brought by a third person against the agent or the principal if each is liable. In most states and in the federal courts, the plaintiff may sue either or both in one action when both are liable. If both are sued, the plaintiff may obtain a judgment against both, although the plaintiff is allowed to collect the full amount of the judgment only once.

Answer 21

Many transactions with sales personnel do not result in a contract with the third person with whom the salesperson deals.

Answer 22

A salesperson

Answer 23

Giving an order to a salesperson often does not give rise to a contract. A soliciting agent, whose authority is limited to soliciting offers from third persons and transmitting them to the principal for acceptance or rejection. Such an agent does not have authority to make a contract that will bind the principal to the third person. The employer of the sales person is not bound by a contract until the employer accepts the order and the third persons (customer) may withdraw the offer at any time prior to acceptance. In contrast, if the person with whom the buyer deals is a contracting agent with the authority to make contracts, by definition a binding contract exists between the principal and the customer from the moment that the agent agrees with the customer. In other words, The contract arises when the agent accepts the customer's order.

Answer 24

Agent with authority to make contracts; person with whom the buyer deals.

Answer 25

The law of contracts and the law established by lawmakers, courts and administrative agencies.

Answer 26

The relationship of an employer and an employee exists when, pursuant to an express or implied agreement of the parties, one person, the employee, undertakes to perform services or to do work under the direction and control of another, the employer for compensation.

Answer 27

Master-servant relationship

Answer 28

An employee is hired to work under the control of the employer. An employee differs from an agent, who is to negotiate or makes contracts with third persons on behalf of, and under the control of, a principal. However, a person may be both an employee and an agent for a party. An employee differs from an independent contractor, who is to perform a contract independent of the control of the employer.

Answer 29

The relationship of employer and employee can be created only with the concept of both parties.

Answer 30

As in contracts generally, both parties must be assent to the terms of an employment contract. Subject to statutory restrictions, the parties are free to make a contract on any terms they wish.

Answer 31

Collective bargaining contracts govern the rights and obligations of employers and employees in many private and public areas of employment. Under collective bargaining, representatives of the employees bargain with a single employer or a group of employers for an agreement on wages, hours, and working conditions. The agreement worked out by the representatives of the employees, usually officials, is generally subject to a ratification vote by the employees.

Answer 32

1. Identification of the work belonging exclusively to designated classes of employees 2. Wage and benefits clauses 3. Promotion and layoff clauses, which are generally tied to part to seniority 4. A management's rights clause 5. A grievance procedure

Answer 33

It provides the means by which persons claiming the the contract was violated or that they were disciplined or discharged without just cause may have their cases decided by impartial labor arbitrators.

Answer 34

In many instances, the employment contract does not state any time or duration. In such a case, it may be terminated at any time by either party. In contrast, the employment contract may state the it shall last for a specified period of time; an example would be an individual's contract to work as general manager for five years.

Answer 35

Ordinarily, a contractor employment may be terminated in the same manner as any other contract. If it is to run for a definite period of time, the employer cannot terminate the contract at an earlier date without justification. If the employment. contract does not have a definite duration, it is terminable at will. Federal and state statutes were enact to provide certain individual rights to workers, protecting them from workplace exploitation and discrimination by employers. AND, in most states, courts have carved out narrow exceptions to this doctrine when the discharge violates established public policy. Second definition Doctrine in which the employer has historically been allowed to terminate the employment contract at any time for any reason or for no reason.

Answer 36

Public policy exceptions are often made to the employment-at-will doctrine when an employee is discharged in retaliation for insisting the the employer comply with the state's food and drug act or for filing a worker's compensation claim. In some states, so-called whistleblower laws have been enacted to protect employees who disclose employer practices that endanger public health or safety. Also, a statutory right exists for at-will employees who are terminated in retaliation for cooperating with federal criminal prosecution or who are termination in violation of the public policy to provide truth testimony.

Answer 37

Because they believe that a court should not rewrite the contract of the parties to provide employee protection that was never intended.

Answer 38

Employers have revised their personnel manuals and employee handbooks and have issued directives to all employee that no assurance of continued employment exists---that the employers are not obligated to have good cause to terminate employees, just as employees are free to leave their positions with the employers. Wile simultaneously reserving their at-will termination powers, many employers also may design specific, apparently fair termination procedures and promulgate antiharassment and anti discrimination policies and procedures, as seen in the Semple v. FedEx decision.

Answer 39

An employer may be justified in discharging an employee because of the employee’s 1. nonperformance of duties, 2. misrepresentation or fraud in obtaining the employment, 3. disobedience of proper directions, 4. disloyalty, 5. theft or other dishonesty, 6. possession or use of drugs or intoxicants, 7. misconduct, or 8. incompetence.

Answer 40

Employers generally have the right to lay off employees because of economic conditions, including lack of work.

Answer 41

Laying off employers because of their age is a violation of the Age Discrimination in Employment Act.

Answer 42

In some sates, a statute requires an employer to furnish to a discharged employee a letter stating the reason for discharge.

Answer 43

Was enacted to restore investor confidence in financial markets following the exposure in 2001-2002 of widespread misconduct by directors and officers of publicly held companies. SOX contains reforms regarding corporate accountability, enhanced disclosure requirements, and enforcement and liability provi- sions. Title VIII of the Act contains protections for corporate whistleblowers.

Answer 44

SOX prohibits a publicly traded company or any agent of it from taking an adverse employment action against an employee who provides information, testifies, or “otherwise assists” in proceedings regarding 1. mail, wire, bank, or securities fraud, 2. any violation of an SEC rule or regulation, or 3. any federal law protecting shareholders against fraud. The act sets forth the types of adverse employment actions that qualify for protection, specifically protecting employees from discharge, demotion, suspension, threats, harassment, failure to hire or rehire, blacklisting, or action otherwise discriminatory against employees in their terms and conditions of employment. The act protects employees who provide information or assistance to supervisors, or a federal regulatory or law enforcement agency, or to members of Congress or a congressional committee. The act does not protect employees who provide information to the world, however. Case law cautions that SOX whistleblower protection provisions do not provide “whistleblower protection for all employee complaints about how a public company spends its money and pays its bills.”

Answer 45

An individual who believes that she or he has been subject to an adverse employment action because of whistleblowing activities must file a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA) within 90 days after the asserted adverse employment action. OSHA administers 13 other federal whistleblower laws and has experienced investigators to facilitate its responsibilities under SOX.

Answer 46

Expands whistleblower protections to a wide range of financial services employees and provides expanded protections and incentives for whistleblowers.

Answer 47

Dodd-Frank covers almost any employee working in the financial services industry related to the extension of credit, including employees of privately held companies, and protects them from retaliation for disclosing information about fraud or unlawful conduct related to consumer financial products. It covers employees who extend credit, service loans, provide real estate settlement services, and provide financial advice, including credit counseling to consumers.

Answer 48

Pay whistleblowers bounties of between 10 and 30 percent on monetary sanctions that aggregate to at least $1 million. To recover an award, a whistleblower must provide the SEC 1. voluntarily 2. with original information 3. that leads to a successful enforcement action or actions in federal court or before an agency 4. in which overall recovery totals over $1,000,000.

Answer 49

1. Dodd-Frank expands the SOX statute of limitations from 90 to 180 days. The Dodd-Frank limitations period is six years. 2. Whistleblowers must exhaust administrative remedies under SOX at OSHA and DOL’s Administrative Review Board before court review. Dodd-Frank allows an immediate lawsuit in federal district court. 3. SOX provides for actual back pay lost, as part of make whole relief, while Dodd-Frank allows recovery of double back pay as liquidated damages.

Answer 50

Predispute arbitration agreements and it provides a burden-shifting framework for a private cause of action for employees who are retaliated against for protected activity so that one an employee has shown by a preponderance of the evidence that the protected activity was a contributing factor in adverse employment action, the employer must show by clear and convincing evidence that it would be taken the same actin in the absence of the employee's whistleblowing actives to avoid liability.

Answer 51

The duties of an employee are determined primarily by the contract of employment with the employer. The law also implies certain obligations.

Answer 52

Employees are under the duty to perform such services as may be required by the contract of employment.

Answer 53

An employee may be given confidential trade secrets by the employer but must not disclose this knowledge to others. An agreement by the employee to refrain from disclosing trade secrets is binding. If the employee violates this obligation, the employer may enjoin the use of the information by the employee and by any person to whom it has been disclosed by the employee. Former employees who are competing with their former employer may be enjoined from using information about suppliers and customers that they obtained while employees when this information is of vital importance to the employer’s business. Injunctive relief is denied, however, if the information is not important or not secret.

Answer 54

Employment contracts commonly provide that an employer will own any invention or discovery made by an employee, whether during work hours, after work hours, or for a period of one or two years after leaving the employment. In the absence of an express or implied agreement to the contrary, the inventions of an employee usually belong to the employee. This is true even though the employee used the time and property of the employer in the discovery. In this case, however, the employer has what is known as a shop right to use the invention without cost in its operations.

Answer 55

Right of an employer to use in business without charge an invention discovered by an employee during working ours and with the employer's material and equipment.

Answer 56

The rights of an employee are determined by the contract of employment and by the law as declared by courts, lawmakers, and administrative agencies.

Answer 57

The rights of an employee with respect to compensation are governed in general by the same principles that apply to the compensation of an agent. In the absence of an agreement to the contrary, when an employee is discharged, whether for cause or not, the employer must pay wages to the expiration of the last pay period. State statutes commonly authorize employees to sue employers for wages improperly withheld and to recover penalties and attorney fees. In addition to hourly wages, payments due for vacations and certain bonuses are considered “wages” under state statutes. These statutes with their penalty provisions are designed as a coercive means to compel employers to promptly pay their employees.

Answer 58

Workers at enterprises engaged in interstate commerce are covered by this act. Popularly known as the Wage and Hour act. These workers can bot be paid less than a specified minimum wage.

Answer 59

The FLSA has been amended to cover domestic service workers, including housekeepers, cooks, and nannies. Executive, administrative, and professional employees and outside salespersons are exempt from both the minimum wage and overtime provisions of the law. Students “working” at internships may be covered by the FLSA.

Answer 60

The FLSA allows for the employment of full-time students at institutions of higher education at wage rates below the statutory minimum. Also, individuals whose productive capacity is impaired by age, physical or mental deficiency, or injury may be employed at less than the minimum wage to prevent the curtailment of work opportunities for these individuals. In these cases, however, a special certificate is needed by the employer from the Department of Labor’s (DOL) Wage and Hour Division, which has offices throughout the United States.

Answer 61

Deductions made from wages as a result of cash or merchandise shortages and deductions for tools of the trade are not legal if they reduce wages below the minimum wage. An employer’s requirement that employees provide uniforms or tools of their own is a violation of the law to the extent that the expenses for these items reduce wages below the minimum wage. Job-related training generally is compensable under the FLSA. However, an exception exists for voluntary training not directly related to an employee’s job when the employee does not perform productive work.

Answer 62

Overtime must be paid at a rate of one and a half times the employee’s regular rate of pay for each hour worked in excess of 40 hours in a workweek.

Answer 63

The FLSA child labor provisions are designed to protect educational opportunities for minors and prohibit their employment in occupations detrimental to their health and wellbeing. The FLSA restricts hours of work for minors under 16 and lists hazardous occupations too dangerous for minors to perform.

Answer 64

Even if employers are not presently unionized, they are subject to certain obligations under federal labor relations law. It is important to both unionized and nonunionized employers to know their rights and obligations under the National Labor Relations Act (NLRA). Employee rights and obligations are also set forth in this act. The Labor- Management Reporting and Disclosure Act regulates internal union affairs.

Answer 65

Passed in 1935, this act was based on the federal government’s power to regulate interstate commerce granted in Article 1, Section 8, of the Constitution. Congress, in enacting this law, explained that its purpose was to remove obstructions to commerce caused by employers who denied their employees the right to join unions and refused to accept collective bargaining. Congress stated that these obstructions resulted in depression of wages, poor working conditions, and diminution of purchasing power.

Answer 66

Section 7: of the amended NLRA is the heart of the act, stating in part that “[e]mployees shall have the right to self-organization ... to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.... and shall have the right to refrain from such activities....” Section 8: of the NLRA contains employer and union unfair labor practices, set forth in Figure 38-1, and authorizes the National Labor Relations Board to conduct proceed- ings to stop such practices. The act applies to private-sector employers with gross incomes of $500,000 or more. The Railway Labor Act applies to employees of railroad and air carriers.

Answer 67

Administration of the NLRA is entrusted to the five-member National Labor Relations Board (NLRB, or Board) and the general counsel of the Board. The general counsel is responsible for investigating and prosecuting all unfair labor practice cases.

Answer 68

To decide unfair labor practice cases brought before it by the general counsel.

Answer 69

The Board is also responsible for conducting representation and decertification elections. This responsibility is delegated to the regional directors of the 26 regional offices located throughout the United States who: 1. determine the appropriateness of each proposed bargaining unit for the purpose of collective bargaining, 2. investigate petitions for the certification or decertification of unions, and 3. conduct elections to determine the choice of the majority of those employees voting in the election. Should a majority of the employees voting select a union, the NLRB will certify that union as the exclusive representative of all employees within the unit for the purpose of bargaining with the employer to obtain a contract with respect to wages, hours, and other conditions of employment.

Answer 70

The NLRB has promulgated preelection rules restricting electioneering activities so that the election will express the true desire of employees. The NLRA prohibits employer interference or coercion during the preelection period. The act also prohibits during this period employer statements that contain threats of reprisal or promises of benefits. The Board prohibits all electioneering activities at polling places and has formulated a “24-hour rule,” which prohibits both unions and employers from making speeches to captive audiences within 24 hours of an election. The rationale is to preserve free elections and to prevent any party from obtaining undue advantage.

Answer 71

Although Section 7 of the NLRA gives employees the statutory right to self-organization, employers have the undisputed right to make rules to maintain discipline in their establishments. Generally speaking, employers may prohibit union solicitation by employees during work periods. During nonworking time, employers may prohibit activity and communications only for legitimate efficiency and safety reasons and only if the prohibitions are not manifestly intended to impede employees’ exercise of their rights under the law.

Answer 72

Because of their own membership! And even if a union pays an individual working for a nonunion employer to help organize the company, that individual is still protected under the NLRA. An employer may validly post its property against all nonemployee solicitations, including distribution of union literature, if reasonable efforts by the union through other available channels of communication would enable it to reach the employees with its message.

Answer 73

Section 7 of the NLRA grants all employees —union and nonunion— the right to engage in protected concerted activities pertaining to self-organization, forming, joining, or assisting a union or “for other mutual aid or protection.” Under Section 7, employees have a right to discuss their terms and conditions of employment with coworkers. Some employers’ Internet and social media policies may be overly broad in that they may tend to chill employees’ exercise of their Section 7 rights.

Answer 74

Though employees retain the right to talk about working conditions on social media, including discussing treatment by a supervisor in blunt language, case law will develop that not only protects Section 7 rights, but also protects employer rights to make rules to maintain discipline in the workplace and to protect the employer’s reputation when a Facebook conversation on a page set to allow access to “friends of friends” involves very offensive, insulting, and disrespectful comments about supervisors or managers. The latter situation is not like a conversation between employees at a water cooler, where there is an expectation of privacy, but is more like calling the boss names on the plant floor in front of multiple employees and the public, as there is no expectation of privacy. This conduct does not involve protected concerted activity. Although discussion of grievances in the context of “mutual aid or protection” is protected under Section 7, an individual’s personal griping is not.

Answer 75

Although employers and supervisors often feel betrayed by individual employees who take leadership roles in forming organizations, the NLRA prohibits discrimination against such employees because of their union activity.

Answer 76

1. Discharges on the strength of past misdeeds that were condoned; 2. Neglects to give customary warnings prior to discharge; 3. Discharges for a rule generally unenforced; 4. Applies disproportionately severe punishment to union supporters; or 5. Effects layoffs in violation of seniority status with disproportionate impact on union supporters.

Answer 77

The NLRA preserves the right of the employer to maintain control over the workforce in the interest of discipline, efficiency, and pleasant and safe customer relations. Employees, on the other hand, have the right to be free from coercive discrimination resulting from union activity.

Answer 78

For example, an employee may be discharged for apparently two reasons: (1) violation of a valid company rule and (2) union activity. The employer gives the former as the reason for termination; the latter remains unstated on the employer’s part, causing the filing of a Section 8(a)(3) unfair labor practice charge against the employer. The general counsel must present on behalf of the dismissed employee a prima facie case that such protected conduct as union activity was a motivating factor in the dismissal. After this showing, the burden shifts to the employer, who must prove that the employee would have been dismissed for legitimate business reasons even absent the protected conduct.

Answer 79

If the parties reach an impasse in the negotiation process for a collective bargaining agreement, a union may call a strike and undertake picketing activity to enforce its bargaining demands (economic strikers). Although the strike activity is legal, the employers may respond by hiring temporary or permanent replacement workers.

Answer 80

Union strikers trying to enforce bargaining demands when an impasse has been reached in the negation process for a collective bargaining agreement.

Answer 81

Economic strikers who unconditionally apply for reinstatement when their positions are filled by permanent replacements are not entitled to return to work at the end of the economic strike. They are, however, entitled to full reinstatement when positions become available.

Answer 82

Yes!!! BUT When employees strike to protest an employer’s unfair labor practice, such as firing an employee for union-organizing activity, these unfair labor practice strikers have a right to return to their jobs immediately at the end of the strike. This right exists even if the employer has hired permanent replacements.

Answer 83

Legal presentations in front of a business notifying the public of a labor dispute. Second definiton: Placing persons outside a business at the site of a labor dispute so that they may, by signs or banners, inform the public of the existence of a labor dispute

Answer 84

Illegal tactic of employees massing together in great numbers to effectively shut down entrances of the employer’s facility.

Answer 85

Picketing an employer with which a union has no dispute to persuade the employer to stop doing business with a party to the dispute; generally illegal under the NLRA.

Answer 86

(In regards to secondary picketing..which is generally illegal) An exception exists for certain product picketing at supermarkets or other multiproduct retail stores provided that it is limited to asking customers not to purchase the struck product at the neutral employer’s store.

Answer 87

To ensure the honest and democratic administration of unions, Congress passed the Labor-Management Reporting and Disclosure Act (LMRDA). Title IV of the LMRDA establishes democratic standards for all elections for union offices, including: 1. Secret ballots in local union elections; 2. Opportunity for members to nominate candidates; 3. Advance notice of elections; 4. Observers at polling and at ballot-counting stations for all candidates; 5. Publication of results and preservation of records for one year; 6. Prohibition of any income from dues or assessments to support candidates for union office; and 7. Advance opportunity for each candidate to inspect the membership name and address lists.

Answer 88

The Employee Retirement Income Security Act (ERISA) was adopted in 1974 to protect employee pensions and benefits.

Answer 89

The act sets forth fiduciary standards and requirements for administration, vesting, funding, and termination insurance.

Answer 90

Commonly a “benefits claims committee” is set up under the plan to make determinations about coverage issues, and courts will not disturb the finding of a benefits committee unless the determinations are “arbitrary and capricious." Nevertheless, individuals may successfully challenge determinations of the plan administrators.

Answer 91

Persons administering a pension fund must handle it to protect the interest of employees. The fact that an employer contributed all or part of the money to the pension fund does not entitle it to use the fund as though the employer still owned it. Persons administering pension plans must make detailed reports to the Secretary of Labor.

Answer 92

Vesting is the right of an employee to pension benefits paid into a pension plan in the employee’s name by the employer.

Answer 93

Prior to ERISA, many pension plans did not vest accrued benefits until an employee had 20 to 25 years of service. Thus, an employee who was forced to terminate service after 18 years would have no pension rights or benefits.

Answer 94

Under ERISA, employees’ rights must be fully vested within five or seven years in accordance with the two vesting options available under the law.

Answer 95

In the past, it had been common for pension plans to contain break-in-service clauses, whereby employees who left their employment for a period longer than one year for any reason other than an on-the-job injury lost pension eligibility rights. Under the Retirement Equity Act of 1984, an individual can leave the workforce for up to five consecutive years and still retain eligibility for pension benefits.

Answer 96

A plan providing individual accounts for each employee participant with benefits defined solely on the amounts contributed by each employee with matching contributions by the employer.

Answer 97

An employer established pension fund obligating the employer to make specified future payments to participants upon retirement. Second definition: ...is an employer commitment to make specified future payments to participants upon retirement. The employer establishes a pension fund for this purpose, and the employer is contractually obligated to make those payments even if the assets set aside to finance the plan turn out to be inadequate.

Answer 98

An insurance plan to protect employees covered by defined benefit plans in case an employer is unable to meet its payment obligations from the employer’s pension fund. Established by ERISA. *to protect employees covered under defined benefit plans should the employer go out of business. In the case of defined benefit plans, the entire investment risk is on the employer who sponsors the plan. The employer must cover any underfunding that may result from the plan’s poor performance. However, if the plan becomes overfunded, the employer may reduce or suspend its contributions.

Answer 99

Pension funds may be broadly classified as “defined contribution plans” and “defined benefit plans.”

Answer 100

Defined Contribution Plan These plans include 401(k) plans, employee stock option plans (ESOPs), profit-sharing plans, and stock bonus plans. Commonly, the employer establishes these plans and defines its own contributions to be matched by contributions from plan participants.

Answer 101

Defined contribution plans are the ones most frequently offered by employers today, in part because of the employers’ risk of underfunding defined benefit plans. Defined contribution plans are not insured by the PBGC.

Answer 102

ERISA authorizes the Secretary of Labor and employees to bring court actions to compel the observance of statutory requirements.

Answer 103

Generally, when employees are without work through no fault of their own, they are eligible for unemployment compensation benefits. Twelve-week maternity, paternity, or adoption leaves and family and medical leaves are available for qualifying employees. Social Security provides certain benefits, including retirement and disability benefits.

Answer 104

Unemployment compensation today is provided primarily through a federal-state system under the unemployment insurance provisions of the Social Security Act of 1935. All states have laws that provide similar benefits, and the state agencies are loosely coordinated under the federal act.

Answer 105

Agricultural employees, domestic employees, and state and local government employees are not covered by this federal-state system. Federal programs of unemployment compensation exist for federal civilian workers and former military service personnel. A separate federal unemployment program applies to railroad workers.

Answer 106

In most states, an unemployed person must be available for placement in a similar job and willing to take such employment at a comparable rate of pay. Full-time students generally have difficulty proving that they are available for work while they are still going to school.

Answer 107

The employee is ordinarily disqualified from receiving unemployment compensation benefits. Ex. An employee’s refusal to complete the aftercare portion of an alcohol treatment program has been found to be misconduct connected with work, disqualifying the employee from receiving benefits.

Answer 108

Employers commonly challenge the state’s payment of unemployment benefits to individuals who they believe are not properly entitled to benefits. If an employee had good cause to resign her employment, she is eligible to receive benefits. Employers are taxed for unemployment benefits based on each employer’s “experience rating” account. Thus, employers with a stable workforce with no layoffs, who therefore do not draw on the state unemployment insurance fund, pay lower tax rates. Employers whose experience ratings are higher pay higher rates.

Answer 109

The Family and Medical Leave Act of 1993 (FMLA) entitles an eligible employee, whether male or female, to a total of 12 work weeks of unpaid leave during any 12-month period 1. because of the birth or adoption of the employee’s son or daughter, 2. to care for the employee’s spouse, son, daughter, or parent with a serious health condition, or 3. because of a serious health condition that makes the employee unable to perform the functions of his or her position. Notice should be given by the employer to an employee that the leave he or she is taking will count against FMLA entitlement in order to comply with the Secretary of Labor’s regulations. In the case of an employee’s serious health condition or that of a covered family member, an employer may require the employee to use any accrued paid vacation, personal, medical, or sick leave toward any part of the 12-week leave provided by the act. When an employee requests leave because of the birth or adoption of a child, the employer may require the employee to use all available paid personal, vacation, and medical leave, but not sick leave, toward any FMLA leave.

Answer 110

...must have been employed by a covered employer for at least 12 months and have worked at least 1,250 hours during the 12-month period preceding the leave. Covered employers are those that employ 50 or more employees. Upon return from FMLA leave, the employee is entitled to be restored to the same or an equivalent position with equivalent pay and benefits.

Answer 111

...violations of the provisions of the act, including pay to the employee for damages equal to lost wages and benefits or any actual monetary losses, plus interest, plus an equal amount in liquidated damages.

Answer 112

Was enacted in 1994 to: - encourage non career service in the armed services, - minimize the disruption experienced in the civilian careers of reservists, and - promote prompt reemployment of reservists upon return from military leave.

Answer 113

Has and will have a broad impact on U.S. employers as it: -provides reemployment and benefit protection rights for returning military personnel and -prohibits discrimination against individuals because of their application for or performance of military service.

Answer 114

Generally requires returning reservists to be “promptly reemployed” and returned to the same or comparable positions of like seniority, status, and pay they would have had if they had not been activated. Sections 4312(a)(3) and (4) provide protection for those disabled while in the service and requires employers to make reasonable efforts to accommodate each employee’s disability so that each individual may return to the same or comparable positions or, if no longer qualified for the position, allow for the transfer to a position the disabled individual can perform closest to the prior position in terms of seniority, status, and pay.

Answer 115

Provides that persons reemployed under the act shall not be discharged from employment within a year of their reemployment if their period of service was more than 180 days. For service of more than 30 days, the protective period is 180 days. However, the employer may terminate an individual for cause regardless of the duration of service.

Answer 116

Provides a full range of remedies, including back pay for loss of wages and benefits as well as liquidated damages in an amount equal to the actual damages when the employer’s failure to comply with the act was willful. The act’s enforcement is performed by the U.S. Justice Department’s Division of Civil Rights.

Answer 117

Employees and employers are required to pay Social Security taxes, which provide employees with four types of insurance protection: retirement benefits, disability benefits, life insurance benefits, and health insurance (Medicare).

Answer 118

Federal program of aid for the aged, the blind, and the disabled. This is called the Supplemental Security Income (SSI) program. Payments are administered directly by the Social Security Administration, which became an independent government agency in 1995.

Answer 119

Federal program of aid for the aged, the blind, and the disabled. Established by federal Social Security Act.

Answer 120

Was passed to assure every worker, so far as possible, safe and healthful working conditions and to preserve the country’s human resources.

Answer 121

1. The establishment of safety and health standards and | 2. effective enforcement of these standards and the other employer duties required by OSHA.

Answer 122

Occupational safety and health STANDARDS Except in emergency situations, public hearings and publi- cation in the Federal Register are required before the secretary can issue a new standard. The cost of compliance with new standards may run into billions of dollars. The secretary is not required to do a cost-benefit analysis for a new standard but must show that the standard is economically feasible.

Answer 123

Employers have a “general duty” to furnish each employee a place of employment that is free from hazards that are likely to cause death or serious physical injuries.

Answer 124

Maintain records of occupational illness and injuries if they result in death, loss of consciousness, or one or more lost workdays or if they require medical treatment other than first aid. Such records have proven to be a valuable aid in recognizing areas of risk. They have been especially helpful in identifying the presence of occupational illnesses.

Answer 125

OSHA has authority to conduct inspections and to seek enforcement action when noncompliance has occurred.

Answer 126

When employer records indicate incidents involving fatalities or serious injuries. These inspections may also result from employee complaints. The act protects employees making complaints from employer retaliation. Employers have the right to require an OSHA inspector to secure a warrant before inspecting the employer’s plant.

Answer 127

The employer may challenge the citation before the Occupational Safety and Health Review Commission (OSHRC). Judicial review of a commission ruling is obtained before a U.S. Court of Appeals.

Answer 128

Laws that guarantee individual workers the “right to know” if there are hazardous substances in their workplaces have been enacted by many states. These laws commonly require an employer to make known to an employee’s physician the chemical composition of certain workplace substances in connection with the employee’s diagnosis and treatment by the physician. Furthermore, local fire and public health officials, as well as local neighborhood residents, are given the right to know if local employers are working with hazardous substances that could pose health or safety problems.

Answer 129

For most kinds of employment, workers’ compensation statutes govern compensation for injuries. These statutes provide that an injured employee is entitled to compensation for accidents occurring in the course of employment from a risk involved in that employment.

Answer 130

In some employment situations, common law principles apply. Workers’ compensation statutes commonly do not apply to employers with fewer than a prescribed minimum number of employees or to agricultural, domestic, or casual employment.

Answer 131

The employer is under the common law duty to furnish an employee with: - a reasonably safe place in which to work, - reasonably safe tools and appliances, and - a sufficient number of competent fellow employees for the work involved. The employer is also under the common law duty to warn the employee of any unusual dangers particular to the employer’s business.

Answer 132

No the employer is not liable. Similarly, an employer is not liable at common law to an employee harmed by an ordinary hazard of the work because the employee assumed such risks.

Answer 133

...regardless of the employer’s negligence, the employer is not liable at common law to an injured employee.

Answer 134

Statutory modification of common law rules relating to the liability of employers for industrial accidents.

Answer 135

(this act covers railroad workers) The injured employee must still bring an action in court and prove the negligence of the employer or the other employees. However, the burden of proving the case is made lighter by limitations on employers’ defenses.

Answer 136

Is a defense only in mitigation of damages; assumption of the risk is not a defense.

Answer 137

The adoption of this is in every state. In addition, civil employees of the U.S. government are covered by the Federal Employees’ Compensation Act.

Answer 138

That provided in the workers’ compensation statute.

Answer 139

A special administrative agency or workers’ compensation board. ***In contrast, a common law action for damages or an action for damages under an employer’s liability statute is brought in a court of law.

Answer 140

1. immediate medical benefits, 2. prompt periodic wage replacement, often computed as a percentage of weekly wages (ranging from 50 to 80 percent of the injured employee’s wage) for a specified number of weeks, and 3. a death benefit of a limited amount. In such cases, compensation is paid without regard to whether the employer or the employee was negligent.

Answer 141

NO! ***There has been a gradual widening of the workers’ compensation statutes, so com- pensation today is generally recoverable for both accident-inflicted injuries and occupational diseases.

Answer 142

Employers may want to monitor employee telephone conversations in the ordinary course of their business to evaluate employee performance and customer service; to document business transactions between employees and customers; or to meet special security, efficiency, or other needs. Employers may likewise want to monitor e-mail for what they perceive to be sound business reasons. Employers also may seek to test employees for drug use or search employee lockers for illicit drugs. Litigation may result because employees may believe that such activities violate their right to privacy.

Answer 143

The Bill of Rights contained in the U.S. Constitution, including the: - Fourth Amendment, which protects against unreasonable search and seizure, provides a philosophical and legal basis for individual privacy rights for federal employees. - The Fourteenth Amendment applies this privacy protection to actions taken by state and local governments that affect their employees.

Answer 144

... because challenged employer actions are not government actions. Limited employee privacy rights in the private sector are provided by statute, case law, and collective bargaining agreements.

Answer 145

Makes it unlawful to intercept oral and electronic communications and provides for both criminal liability and civil damages against the violator.

Answer 146

- The first allows an employer to monitor a firm’s telephones in the “ordinary course of business” through the use of extension telephones; - A second exception applies when there is prior employee consent to the interception. If employer monitoring results in the interception of a business call, it is within the ordinary-course-of-business exception. Personal calls can be monitored, however, only to the extent necessary to determine that the call is personal, and the employer must then cease listening.

Answer 147

Consent may be established by prior written notice to employees of the employer’s monitoring policy. It is prudent, as well, for the employer to give customers notice of the policy through a recorded message as part of the employer’s phone-answering system.

Answer 148

Amended the federal wiretap statute and was intended in part to apply to e-mail. However, ordinary-course-of-business and consent exceptions apply to e-mail, and it would appear that employers have broad latitude to monitor employee e-mail use. An employer can place itself within the consent exception of the act by issuing a policy statement to all employees that informs them of the monitoring program and its purposes and justification.

Answer 149

Protected by the Fourth Amendment, public-sector employees have a reasonable expectation of privacy with respect to their desks and file cabinets. However, depending on the fact-specific purpose, justification, and scope of the search, the balance of interest should favor the public employer because its interests in supervision, control, and the efficient operation of the workplace outweigh a public employee’s privacy interests. Search of a postal service employee’s locker was held not to be a Fourth Amendment violation because well-publicized regulations informed employees that their lockers were subject to search to combat pilferage and stealing. However, the warrantless search of the desk and files of a psychiatrist employed by a state hospital was found to be a Fourth Amendment violation, exceeding the scope of a reasonable work-related search when the search exam- ined his private possessions, including purely personal belongings, and management sought to justify the search on false grounds.

Answer 150

Drug and alcohol testing is an additional source of privacy concerns for employees. Public- sector employees may see drug and alcohol testing as potentially infringing on their Fourth and fifth amendment rights. Federal Omnibus Transportation Employee Testing Act (which covers certain classes of employees working in the airline, railroad, and trucking industries) makes covered employees subject to random drug and alcohol testing. Random drug and alcohol testing of employees working in safety-sensitive positions in the private sector also is permissible, as is the testing of private-sector employees on the basis of reasonable suspicion.

Answer 151

-Immigration and Naturalization Act (INA), -Immigration Reform and Control Act of 1986 (IRCA), -Immigration Act of 1990 are the principal employer- related immigration laws. Administration of these laws was formerly under the Immigration and Naturalization Service and is now reorganized under the Department of Homeland Security (DHS) as the United States Bureau of Citizenship and Immigration Services (USCIS).

Answer 152

The IRCA sets criminal and civil penalties against employers who knowingly hire aliens who have illegally entered the United States. The IRCA was designed to stop illegal immigration by eliminating job opportunities for these aliens.

Answer 153

Title VII of the Civil Rights Act of 19641 seeks to eliminate employer and union practices that discriminate against employees and job applicants on the basis of race, color, religion, sex, or national origin. The law applies to the hiring process and to discipline, discharge, promotion, and benefits.

Answer 154

Disparate treatment and disparate treatment

Answer 155

A ___ ____ claim exists where an employer treats some individuals less favorably than others because of their race, color, religion, sex, or national origin. Proof of the employer’s discriminatory motive is essential in a ____ ____ case.

Answer 156

It is not a defense for an employer to demonstrate that it did not intend to discriminate.

Answer 157

Exists when an employer’s facially neutral employment practices, such as hiring or promotion examinations, although neutrally applied and making no adverse reference to race, color, religion, sex, or national origin, have a significantly adverse or disparate impact on a protected group. In addition, the employment practice in question is not shown by the employer to be job related and consistent with business necessity.

Answer 158

Is a five-member body appointed by the president to establish equal employment opportunity policy under the laws it administers. The EEOC supervises the agency’s conciliation and enforcement efforts.

Answer 159

- Title VII of the Civil Rights Act - the Equal Pay Act (EPA) - the Age Discrimination in Employment Act (ADEA) - Section 501 of the Rehabilitation Act (which prohibits federal-sector discrimination against persons with disabilities), and - Title I (the employment provisions) of the Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAA).

Answer 160

Where a state or local EEO agency with the power to act on claims of discriminatory practices exists, the charging party must file a complaint with that agency. - The charging party must wait 60 days or until the termination of the state proceedings, whichever occurs first, before filing a charge with the EEOC. - If no state or local agency exists, a charge may be filed directly with the EEOC so long as it is filed within 180 days of the occurrence of the discriminatory act.

Answer 161

Thereafter, the individual claiming a violation of EEO law has 90 days to file a lawsuit in a federal district court.

Answer 162

Section 707 of Title VII permits the EEOC to sue employers when it has reasonable cause to believe they are engaged in a pattern or practice of unlawful employment discrimination. -It must establish that intentional discrimination was the defendant employer’s “standard operating procedure.”

Answer 163

The process moves to the individual relief phase, where individual claims may be presented. The purpose of Section 707 is to provide the government with a swift and effective weapon to eliminate unlawful practices.

Answer 164

When an individual files a discrimination charge with the EEOC, it now may expand its investigation into that employer’s related employment practices involving similarly situated individuals. Possible statutory violations discovered during the course of the investigation of the initial individual charge may lead the EEOC to bring a “systemic” case on behalf of a number of employees against the employer under Section 706 of the act.

Answer 165

Title VII sets damages available to victims of discrimination. Thus, a court may award a prevailing individual in a Civil Rights Act lawsuit against an employer reasonable attorney fees and costs. It also may award attorneys’ fees against the EEOC itself if the agency’s lawsuit is without foundation.

Answer 166

A fair arbitration clause requires adequate discovery, mandates that the arbitrator have authority to apply the same types of relief available from a court, and should not preclude an employee from vindicating statutory rights because of arbitration costs. A union may negotiate a provision in a collective bargaining agreement requiring all employment-related discrimination claims to be resolved in arbitration.

Answer 167

Under Title VII an employer’s liability for workplace harassment of employees may depend on the status of the harasser. If the harassing individual is the victim’s coworker the employer is liable only if the employer was negligent in controlling working conditions. If the harasser is a “supervisor” who takes an adverse tangible employment action against the victim, the employer is strictly liable!!!!

Answer 168

The Vance v. Ball State University decision defines the word “supervisor” under Title VII of the Civil Rights Act of 1964.

Answer 169

Belong to a protected class and meet the appropriate burden of proof. Exceptions exist for certain employment practices.

Answer 170

The legislative history of Title VII of the Civil Rights Act demonstrates that a primary purpose of the act is to provide fair employment opportunities for black Americans. The protections of the act are applied to blacks based on race or color. The word race as used in the act applies to all members of the four major racial groupings: white, black, Native American, and Asian-Pacific. Native Americans can file charges and receive the protection of the act on the basis of national origin, race, or, in some instances, color. Individuals of Asian-Pacific origin may file discrimination charges based on race, color, or, in some instances, national origin. Whites are also protected against discrimination because of race and color.

Answer 171

Title VII requires employers to accommodate their employee's religious practices. If an employee’s religious beliefs prohibit working on Saturday, an employer’s obligation under Title VII is to try to find a volunteer to cover for the employee on Saturdays. The employer would not have an obligation to violate a seniority provision of a collective bargaining agreement or call in a substitute worker if such accommodation would require more than a de minimis or very small cost.

Answer 172

Ordinarily employers have little reason to be informed or concerned about the religious practices of individual employees. However, because many Muslim women wear special clothing as part of their religious observances, which may conflict with an employer’s safety or grooming standards, employers should develop appropriate and justifiable policies for their business and provide training for supervisors on how to properly handle requests for religious accommodations. Safety risks may provide a justifiable basis for a dress code.

Answer 173

... grant hiring preferences in favor of members of their religion. It also provides an exemption for educational institutions to hire employees of a particular religion if the institution is owned, controlled, or managed by a particular religious society. The exemption is a broad one and is not restricted to the religious activities of the institution.

Answer 174

The EEOC and the courts have determined that the word sex as used in Title VII means a person’s gender, not the person’s sexual orien- tation. State and local legislation, however, may provide specific protection against dis- crimination based on sexual orientation.

Answer 175

An employer must be able to show that criteria used to make an employment decision that has a disparate impact on women, such as minimum height and weight requirements, are, in fact, job related. All candidates for a position requiring physical strength must be given an opportunity to demonstrate their capability to perform the work. Women cannot be precluded from consideration just because they have not traditionally performed such work.

Answer 176

In 1978 this act amended the Title VII by preventing employers from treating pregnancy, childbirth and related medical conditions in a manner different from the manner in which other medical conditions are treated. -Thus, women unable to work as a result of pregnancy, childbirth, or related medical conditions must be provided the same benefits as all other workers. These include temporary and long-term disability insurance, sick leave, and other forms of employee benefit programs.

Answer 177

No they are not required to because they do not provide them for everyone else.

Answer 178

Termination or other employment actions because of pregnancy. AND Discrimination after giving birth to a child for up to four months thereafter.

Answer 179

Tangible employment action and hostile work environment are two classifications of sexual harassment.

Answer 180

Sexual harassment classified as ___ ___ ____ involves situations in which a supervisor performs an “official act” of the enterprise, such as discharge, demotion, or undesirable reassignment against a subordinate employee because of the employee’s refusal to submit to the supervisor’s demand for sexual favors.

Answer 181

The employer is always vicariously liable for harassment (the sexual harassment classified as tangible employment action) by a supervisor under the so-called aided-in-the-agency-relation standard. That is, the supervisor is aided in accomplishing the wrongful objective by the existence of the agency relationship. The employer empowered the supervisor as a distinct class of agent to make economic decisions affecting other employees under the supervisor’s control. The employer can raise no affirmative defense based on the presence of an employer’s antiharassment policy in such a case.

Answer 182

This second type of harassment occurs when a supervisor’s conduct does not affect an employee’s economic benefits but causes anxiety and “poisons” the work environment for the employee. Such conduct may include unwelcome sexual flirtation, propositions, or other abuses of a sexual nature, including the use of degrading words or the display of sexually explicit pictures. This type of sexual harassment applies to all cases involving supervisors in which the enterprise takes no official act, including constructive discharge cases.

Answer 183

1. It exercised reasonable care to prevent and promptly correct any sexually harassing behavior at its workplace and 2. the plaintiff employee unreasonably failed to take advantage of corrective opportunities provided by the employer.

Answer 184

The existence of an employer’s sexual harassment policy and notification procedures will aid the employer in proving the affirmative defense in hostile working environment cases.

Answer 185

When there is no “official act” of the employer, the employer may raise an affirmative defense. This approach fosters the preventative aspect of Title VII, encouraging employers to exercise reasonable care to prevent and correct sexual harassment while providing damages only when the conduct is clearly attributed to an official action of the enterprise or when the employer has not exercised reasonable care to prevent and correct misconduct.

Answer 186

An employer is liable for the sexual harassment caused its employees by coworkers or customers only when it knew or should have known of the misconduct and failed to take prompt remedial action.

Answer 187

Section 704(a) sets forth Title VII’s antiretaliation provision in the following terms: It shall be an unlawful practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter [the opposition clause], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter [the participation clause].

Answer 188

...retaliation that takes the form of “ultimate employment actions” such as: - demotions, - suspensions, and - terminations and do not apply to ministerial matters such as: - reprimands and - poor evaluations.

Answer 189

... but also under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Equal Pay Act.

Answer 190

Title VII protects members of all nationalities from discrimination. The judicial principles that have emerged from cases involving race, color, and gender employment discrimina- tion are generally applicable to cases involving allegations of discrimination related to national origin.

Answer 191

Thus, physical standards, such as minimum height requirements, that tend to exclude persons of a particular national origin because of the physical stature of the group have been found unlawful when these standards cannot be justified by business necessity.

Answer 192

... violates Title VII when the language requirement bears no demonstrable relationship to the successful performance of the job to which it is applied.

Answer 193

Section 703 of Title VII defines which employment activities are unlawful. This same section, however, also exempts several key practices from the scope of Title VII enforcement. The most important are: - the bona fide occupational qualification exception - the testing and educational requirement exception, and - the seniority system exception.

Answer 194

It is not an unlawful employment practice for an employer to hire employees on the basis of religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of a particular enterprise.

Answer 195

Section 703(h) of the act authorizes the use of “any professionally developed ability test [that is not] designed, intended, or used to discriminate.” Employment testing and educational requirements must be “job related”; Courts will accept prior court approved validation studies developed for a different employer in a different state or region so long as it is demonstrated that the job for which the test was initially validated is essentially the same job function for which the test is currently being used.

Answer 196

When a court-approved test, that has been validated and accepted for a study in one state, is later used in another state.

Answer 197

An employer to adjust scores or use different cutoff scores or otherwise alter the results of employment tests to favor any race, color, religion, sex, or national origin. This provision addresses the so-called race-norming issue.

Answer 198

Whereby the results of hiring and promotion tests are adjusted to ensure that a minimum number of minorities are included in application pools.

Answer 199

Is generally understood to mean a set of rules that ensures that workers with longer years of continuous service for an employer will have a priority claim to a job over others with fewer years of service. Because such rules provide workers with considerable job security, organized labor has continually and successfully fought to secure seniority provisions in collective bargaining agreements.

Answer 200

Differences in employment terms based on a bona fide seniority system are sanctioned so long as the differences do not stem from an intention to discriminate.

Answer 201

Plan to have a diverse and representative workforce. May undertake special recruiting and other efforts to hire and train minorities and women and help them advance within the company. However, the plan may also provide job preferences for minorities and women. Such aspects of affirmative action plans have resulted in numerous lawsuits contending that Title VII of the Civil Rights Act of 1964, the Fourteenth Amendment, or collective bargaining contracts have been violated.

Answer 202

In its 1995 Adarand Constructors, Inc. v. Pena decision, the Supreme Court placed significant limits on the federal government’s authority to implement programs favoring businesses owned by racial minorities over white-owned businesses. The decision reinstated a reverse discrimination challenge to a federal program designed to provide highway construction contracts to “disadvantaged” subcontractors in which race-based presumptions were used to identify such individuals. The Court found the program to be violative of the equal protection component of the Fifth Amendment’s due process clause and announced a strict scrutiny standard for evaluating the racial classifications used in the federal government’s Disadvantaged Business Enterprise (DBE) program. Following the Court’s Adarand I decision, the EEOC issued a statement on affirma- tive action, stating, in part: Affirmative action is lawful only when it is designed to respond to a demonstrated and serious imbalance in the workforce, is flexible, is time limited, applies only to qualified workers, and respects the rights of nonminorities and men.

Answer 203

When an employer’s AAP is not shown to be justified or “unnecessarily trammels” the interests of nonminority employees, it is often called reverse discrimination.

Answer 204

Presidential Executive Order 11246 regulates contractors and subcontractors doing business with the federal government. This order forbids discrimination against minorities and women and in certain situations requires affirmative action to be taken to offer better employment opportunities to minorities and women. The Secretary of Labor has established the Office of Federal Contract Compliance Programs (OFCCP) to administer the order.

Answer 205

Major federal laws require equal pay for men and women doing equal work and forbid discrimination against older people and those with disabilities.

Answer 206

The Equal Pay Act prohibits employers from paying employees of one gender a lower wage rate than the rate paid employees of the other gender for equal work, or substantially equal work, in the same establishment for jobs that require substantially equal skill, effort, and responsibility and that are performed under similar working conditions.

Answer 207

Variances in wages are allowed where there is: 1. A seniority system 2. A merit system 3. A system that measures earnings by quantity or quality of production or 4. A differential based on any factor other than gender

Answer 208

Forbids discrimination by employers, unions, and employment agencies against persons over 40 years of age.

Answer 209

Sets forth the employment practices that are unlawful under the act, including the failure to hire because of age and the discharge of employees because of age.

Answer 210

Allows for doubling the damages in cases of willful violations of the act. Consequently, an employer who willfully violates the ADEA is liable not only for back wages and benefits but also for an additional amount as liquidated damages.

Answer 211

Amends the ADEA by prohibiting age discrimination in employee benefits and establishing minimum standards for determining the validity of waivers of age claims. The OWBPA amends the ADEA by adopting an “equal benefit or equal cost” standard, providing that older workers must be given benefits at least equal to those provided for younger workers unless the employer can prove that the cost of providing an equal benefit would be more for an older worker than for a younger one. Employers commonly require that employees electing to take early retirement packages waive all claims against their employers, including their rights or claims under the ADEA. The OWBPA requires that employees be given a specific period of time to evaluate a proposed package.

Answer 212

Title VII is materially different from the ADEA with respect to burdens of persuasion, and Supreme Court decisions construing Title VII do not control the construction of the ADEA. Rather, in all cases of disparate treatment, including mixed- motive cases, the plaintiff has to prove, by a preponderance of the evidence, that age was the “but for” cause of the challenged adverse employment action.

Answer 213

The right of persons with disabilities to enjoy equal employment opportunities was established on the federal level with the enactment of the Rehabilitation Act of 1973. *The right of persons with disabilities to enjoy equal employment opportunities was established on the federal level with the enactment of the Rehabilitation Act of 1973.

Answer 214

After making a job offer (contingent upon the applicant’s passing a medical examina- tion), the employer may rescind the offer if the position in question poses a direct threat to the worker’s health or safety.

Answer 215

1. He or she has a disability; 2. he or she is qualified for the position; and 3. an employer has discriminated against him or her because of a disability. In addition to establishing that the plaintiff has a disability, a plaintiff must also show that he or she is qualified for the position.

Answer 216

1. DISABILITY: The term “disability” means, with respect to an individual— A. a physical or mental impairment that substantially limits one or more major life activities of such individual; B. a record of such an impairment; or C. being regarded as having such an impairment.

Answer 217

Section 101(9) of the ADA defines an employer’s obligation to make “reasonable accommodations” for individuals with disabilities to include: 1. making existing facilities accessible to and usable by individuals with disabilities and 2. restructuring jobs, providing modified work schedules, and acquiring or modifying equipment or devices. An employer is not obligated under the ADA to make accommodations that would be an “undue hardship” on the employer.

Answer 218

Seniority systems provide for a fair and uniform method of treating employees whereby employees with more years of service have a priority over employees with less years of service when it comes to layoffs, job selection, and other benefits such as days off and vacation periods. Seniority rules apply not only under collective bargaining agreements but also to many nonunion job classifications and to nonunion settings. An employer’s showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show that the requested “accommodation” is not “reasonable.”

Answer 219

With courts applying a less-demanding standard for coverage under the amended ADA, employers are finding requests to provide “reasonable accommodations” more common. Employers are liable for failure to take appropriate action regarding requests for reasonable accommodations.

Answer 220

An employee is obligated to engage in an “interactive process” regarding accommodation of a disability, even when a formal request for accommodation is not made.

Answer 221

The act excludes from its coverage employees or applicants who are “currently engaging in the illegal use of drugs.” The exclusion does not include an individual who has been successfully rehabilitated from such use or is participating in or has completed supervised drug rehabilitation and is no longer engaging in the illegal use of drugs.

Answer 222

Title V of the act states that behaviors such as transvestitism, transsexualism, pedophilia, exhibitionism, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs are not in and of themselves considered disabilities.

Answer 223

The Genetic Information Nondiscrimination Act (GINA) is also administered by the EEOC. GINA was enacted in 2008 to prevent discrimination on the basis of genetic information in health insurance and employment. Employees requiring fitness-for-duty or post-job-offer medical examinations have to make certain that “company doctors” do not ask for DNA tests or family medical histories. It is advisable that all medical forms and questionnaires include prominently printed language that notifies individuals: “Do not give us genetic information or family medical history."

Answer 224

The Civil Rights Act of 1991 amended both Title VII and the ADA to protect U.S. citizens employed in foreign countries by American-owned or American-controlled companies against discrimination based on race, color, religion, national origin, sex, or disability. The 1991 act contains an exemption if compliance with Title VII or the ADA would cause a company to violate the law of the foreign country in which it is located.

Final Exam (Chapters 37-39) Flashcards

(250 cards)