Final Exam (Chapters 37-39)

Question 1

Disclosed Principal

Answer 1

Principal whose identity is made known by the agent as well as the fact that the agent is acting on the principal’s behalf

The third person dealing with an agent of a disclosed principal ordinarily intends to make a contract with the principal, not the agent. Consequently, the agent is not a party to, and is not bound by, the contract that is made.

“When the agent makes known the identity of the principle and the fact that the agent is acting on behalf of the principal”

Question 2

Partially Disclosed Principal

Answer 2

Principal whose existence is made known but whose identity is not

When the agent makes known the existence of a principle but not the principal’s identity

Because the third party does not know the identity of the principal, the third person is making the contract with the agent and the agent is therefore a party the contract

Question 3

Undisclosed Principal

Answer 3

Principal on whose behalf an agent acts without disclosing to the third person the fact of agency or the identity of the principal

When the third person is not told or does not know what the agent is acting as an agent for anyone else

In this case, the third person is making the contract with the agent and the agent is a party to that contract

Question 4

Respondeat Superior

Answer 4

Doctrine that the principal or employers is vicariously liable for the unauthorized torts committed by an agent or employee while acting within the scope of the agency or the course of the employment respectively.

In modern times, this doctrine can be justified on the grounds that the business should pay for the harm caused in the doing of the business, that the employer will be more careful in the selection of employees if made responsible for their actions, and that the employer may obtain liability to protect against claims of third persons.

Simply:
The rule of law imposing vicarious liability on an innocent employer for the wrong of an employee

Question 5

Nature of Act

Answer 5

The wrongful act committed by an employee may be a

1. negligence act, an
2. intentional act, a
3. fraudulent act or a
4. violation of government regulation.

It may give rise only to civil liability of the employer, or it may also subject the employer to prosecution for crime.

Question 6

The rights and liabilities of the principal, the agent, and the third person with whom the agent deals are generally determined by what?

Answer 6

Contract law. In some cases, tort or criminal law may be applicable

Question 7

Action of Authorized Agent of Disclosed Principal

Answer 7

If an agent makes a contract with a third person on behalf of a disclosed principal and has proper authority to do so and if the contract is executed properly, the agent has no per- sonal liability on the contract. Whether the principal performs the contract or not, the agent cannot be held liable by the third party.

Question 8

In speaking of an agent’s action as authorized or unauthorized, it must be remembered that

Answer 8

Authorized includes action that, though originally unauthorized, was subse- quently ratified by the principal. Once there is an effective ratification, the original action of the agent is no longer treated as unauthorized

Question 9

Unauthorized Action

Answer 9

If a person makes a contract as agent for another but lacks authority to do so, the contract does not bind the principal. When a person purports to act as agent for a principal, an implied warranty arises that that person has authority to do so. If the agent lacks author- ity, there is a breach of this warranty.
If the agent’s act causes loss to the third person, that third person may generally hold the agent liable for the loss.

The purported agent is not liable for conduct in excess of authority when the third person knows that she is acting beyond the authority given by the principal.

An agent with a written authorization may avoid liability on the implied warranty of authority by showing the written authorization to the third person and permitting the third person to determine the scope of the agent’s authority.

Question 10

An agent’s liability as a party to a contract with a third person is affected by the?

Answer 10

Degree of disclosure

Question 11

Assumption of Liability

Answer 11

Agents may intentionally make themselves liable on contracts with third persons. This situation frequently occurs when the agent is a well-established local brokerage house or other agency and when the principal is located out of town and is not known locally.
In some situations, the agent makes a contract that will be personally binding. If the principal is not disclosed, the agent is necessarily the other contracting party and is bound by the contract. Even when the principal is disclosed, the agent may be personally bound if it was the intention of the parties that the agent assume a personal obligation even though this was done to further the principal’s business.

Question 12

Execution of Contract

Answer 12

A simple contract that would appear to be the contract of the agent can be shown by other evidence, if believed, to have been intended as a contract between the principal and the third party.
To avoid any question of interpretation, an agent should execute an instrument by signing the principal’s name and either by or per and the agent’s name.

If the instrument is ambiguous as to whether the agent has signed in a representative
or an individual capacity, parol evidence is admissible as between the original parties to
the transaction for establishing the character in which the agent was acting.

Question 13

Torts and Crimes

Answer 13

Agents are liable for harm caused to third persons by the agents’ fraudulent, intentional, or negligent acts.

The fact that persons were acting as agents at the time or that they acted in good faith under the directions of a principal does not relieve them of liability if their conduct would impose liability on them when acting for themselves.

If an agent commits a crime, such as stealing from a third person or shooting a third person, the agent is liable for the crime without regard to the fact of acting as an agent. The agent is liable without regard to whether the agent acted in self-interest or sought to advance the interest of the principal.

Question 14

The liability of a principal to a third person on a contract made by an agent depends on?

Answer 14

The extent of disclosure of the principal and the form of the contract that is executed.

Question 15

Liability of Principal to Third Person

Answer 15

The principal is liable to the third person for the properly authorized and executed contracts of the agent and, in certain circumstances, for the agent’s unauthorized contracts.

Question 16

Simple Contract with Principal Disclosed

Answer 16

When a disclosed principal with contractual capacity authorizes or ratifies an agent’s transaction with a third person and when the agent properly executes a contract with the third person, a binding contract exists between the principal and the third person. The principal and the third person may each sue the other in the event of a breach of the contract. The agent is not a party to the contract, is not liable for its performance, and cannot sue for its breach.

The liability of a disclosed principal to a third person is not discharged by the fact that the principal gives the agent money with which to pay the third person.

Consequently, the liability of a buyer for the purchase price of goods is not terminated by the fact that the buyer gave the buyer’s agent the purchase price to remit to the seller.

Question 17

Simple Contract with Principal Partially Disclosed

Answer 17

A partially disclosed principal is liable for a simple contract made by an authorized agent. The third person may recover from either the agent or the principal.

Question 18

Simple Contract with Principal Undisclosed

Answer 18

An undisclosed principal is liable for a simple contract made by an authorized agent. Although the third person initially contracted with the agent alone, the third person, on learning of the existence of the undisclosed principal, may sue that principal.

In most jurisdictions, third persons can sue and collect judgments from the agent or principal, or both, until the judgment is fully satisfied (joint and several liability).

Question 19

Payment to Agent

Answer 19

When the third person makes payment to an authorized agent, the payment is deemed made to the principal. Even if the agent never remits or delivers the payment to the principal, the principal must give the third person full credit for the payment so long as the third person made the payment in good faith and had no reason to know that the agent would be guilty of misconduct.

Because apparent authority has the same legal effect as actual authority, a payment made to a person with apparent authority to receive the payment is deemed a payment to the apparent principal.

When a debtor makes payment to a person who is not the actual or apparent agent of the creditor, such a payment does not discharge the debt unless that person in fact pays the money to the creditor.

Question 20

Agent’s Statements

Answer 20

A principal is bound by a statement made by an agent while transacting business within the scope of authority. This means that the principal cannot later contradict the statement of the agent and show that it is not true. Statements or declarations of an agent, in order to bind the principal, but be made at the time of performing the act to which they relate or shortly thereafter.

Question 21

Agent’s Knowledge

Answer 21

The principal is bound by knowledge or notice of any fact that is acquired by an agent while acting within the scope of actual or apparent authority. When a fact is known to the agent of the seller, the sale is deemed made by the seller with knowledge of that fact.

The rule that the agent’s knowledge is imputed to the principals is extended in some cases to knowledge gained prior to the creation of the agency relationship. The notice and knowledge in any case must be based on reliable information. Thus, when the agent hears only rumors, the principal is not charged with notice.

Question 22

If the subject matter is outside the scope of the agent’s authority then…

Answer 22

The agent is under no duty to inform the principal of the knowledge and the principal is not bound by it.

Question 23

The principal is not charged with knowledge of an agent when

Answer 23

1. The agent is acting adversely to the principal’s interest or
2. The third party acts in collusion with the agent for the purpose of cheating the principal

Question 24

Liability of Principal for Torts and Crimes of Agent

Answer 24

Under certain circumstances, the principal may be liable for the torts or crimes of the agent or the employee.

Question 25

Vicarious Liability

Answer 25

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.

Question 26

Negligence Act

Answer 26

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.

Question 27

Intentional Act

Answer 27

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..

Question 28

Fraud

Answer 28

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.

Question 29

Government Regulation

Answer 29

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.

Question 30

Course of Employment

Answer 30

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.

Question 31

Federal Tort Claims Act (FTCA)

Answer 31

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.

Question 32

Negligent Hiring and Retention of Employees

Answer 32

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.

Question 33

The negligent hiring theory has been used to impose liability cases when…

Answer 33

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.

Question 34

Need for Due Care in Hiring

Answer 34

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.

Question 35

How can employers protect themselves from liability in a negligent hiring case?

Answer 35

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.

Question 36

What does a minimum investigation for preemployment consists of?

Answer 36

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.

Question 37

Employees with Criminal Records

Answer 37

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.

Question 38

Negligent Retention

Answer 38

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.

Question 39

Negligent Supervision and Training

Answer 39

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.

Question 40

Agent’s Crimes

Answer 40

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.

Question 41

Owner’s Liability for Acts of an Independent Contractor

Answer 41

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.

Question 42

Exceptions to Owner’s Immunity

Answer 42

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.

Question 43

Undisclosed Independent Contractor

Answer 43

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.

Question 44

Enforcement of Claim by Third Person

Answer 44

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.

Question 45

Transactions with Sales Personnel

Answer 45

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

Question 46

Soliciting Agent

Answer 46

A salesperson

Question 47

Soliciting and Contracting Agents

Answer 47

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.

Question 48

Contracting Agent

Answer 48

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

Question 49

What does employment law involve?

Answer 49

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

Question 50

The Employment Relationship

Answer 50

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.

Question 51

In older cases, what was the employment relationship called?

Answer 51

Master-servant relationship

Question 52

Characteristics of Relationship

Answer 52

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.

Question 53

Creation of Employment Relationship

Answer 53

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

Question 54

Individual Employment Contracts

Answer 54

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.

Question 55

Bargaining Contracts

Answer 55

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.

Question 56

What are the terms usually fund in collective bargaining?

Answer 56

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

Question 57

What does a grievance procedure provide?

Answer 57

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.

Question 58

Duration and Termination of Employment Contract

Answer 58

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.

Question 59

Employment-at-Will Doctrine

Answer 59

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.

Question 60

Employment-at-Will Doctrine and Developing Exceptions

Answer 60

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.

Question 61

Why do other courts still follow the common law at-will rule?

Answer 61

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

Question 62

Employer Adjustments

Answer 62

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.

Question 63

Justifiable Discharge

Answer 63

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.

Question 64

Reductions in Force (RIFs)

Answer 64

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

Question 65

Why must employers be careful not to make layoffs baed on age?

Answer 65

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

Question 66

What is a “service letter”?

Answer 66

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

Question 67

Sarbanes-Oxley Act (SOX)

Answer 67

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.

Question 68

Protection Provided

Answer 68

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.”

Question 69

Procedures

Answer 69

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.

Question 70

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd- Frank)

Answer 70

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

Question 71

The Dodd-Frank Expansion

Answer 71

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.

Question 72

Dodd-Frank requires the Securities and Exchange Commission to?

Answer 72

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.

Question 73

Dodd-Frank expands on the SOX cause of action as follows:

Answer 73

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.

Question 74

Dodd-Frank exempts whistleblow claims from?

Answer 74

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.

Question 75

Duties of the Employee

Answer 75

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

Question 76

Services

Answer 76

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

Question 77

Trade Secrets

Answer 77

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.

Question 78

Inventions

Answer 78

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.

Question 79

Shop Right

Answer 79

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.

Question 80

Rights of the Employee

Answer 80

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

Question 81

Compensation

Answer 81

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.

Question 82

Fair Labor Standards Act (FLSA)

Answer 82

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.

Question 83

Federal Wage and Hour Law

Answer 83

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.

Question 84

Subminumum Wage Provisions

Answer 84

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.

Question 85

Wage Issues

Answer 85

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.

Question 86

Overtime Pay

Answer 86

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.

Question 87

Child Labor Provisions

Answer 87

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.

Question 88

Labor Relations Laws

Answer 88

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.

Question 89

National Labor Relations Act (NLRA)

Answer 89

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.

Question 90

Sections 7 and 8 of the NLRA

Answer 90

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.

Question 91

National Labor Relations Board (NLRB, or Board)

Answer 91

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.

Question 92

The five-member NLRA Board’s major function is?

Answer 92

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

Question 93

What is the responsibility delegated to the NLRA regional boards?

Answer 93

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.

Question 94

Election Conduct

Answer 94

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.

Question 95

Union Activity on Private Property

Answer 95

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.

Question 96

Why can’t nonunion employers refuse to interview or retain union members?

Answer 96

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.

Question 97

Social Media and Section 7: Protected Activity for Union and Nonunion Workers

Answer 97

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.

Question 98

Facebook and Section 7

Answer 98

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.

Question 99

Firing Employees for Union Activity

Answer 99

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.

Question 100

The NLRB has found evidence of discrimination against active union supporters when the employer

Answer 100

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.

Question 101

What two rights may collide when there is union activity involved?

Answer 101

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.

Question 102

Dual Motive Cases

Answer 102

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.

Question 103

Strike and Picketing Activity

Answer 103

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.

Question 104

Economic Strikers

Answer 104

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

Question 105

Rights of Strikers

Answer 105

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.

Question 106

Can strikers that are responsible for misconduct while out on strike be refused reemployment by the employer?

Answer 106

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.

Question 107

Primary Picketing

Answer 107

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

Question 108

Mass Picketing

Answer 108

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

Question 109

Secondary Picketing

Answer 109

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.

Question 110

Picketing

Answer 110

(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.

Question 111

Regulation of Internal Union Affairs

Answer 111

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.

Question 112

Pension Plans and Federal Regulation

Answer 112

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

Question 113

ERISA

Answer 113

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

Question 114

Administration

Answer 114

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.

Question 115

Fiduciary Standards and Reporting

Answer 115

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.

Question 116

Vesting

Answer 116

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

Question 117

Vesting Prior to ERISA

Answer 117

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.

Question 118

Vesting After ERISA

Answer 118

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

Question 119

Retirement Equity Act of 1984

Answer 119

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.

Question 120

Defined Contribution Plan

Answer 120

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.

Question 121

Defined Benefit Plan

Answer 121

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.

Question 122

Pension Benefit Guaranty Corporation (PBGC)

Answer 122

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.

Question 123

Funding

Answer 123

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

Question 124

Also known as an individual account plan?

Answer 124

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.

Question 125

What specific funding is most frequently offered by employers today?

Answer 125

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.

Question 126

Are defined contribution plans insured by the PBGC?

Answer 126

NO

Question 127

Enforcement

Answer 127

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

Question 128

Unemployment Benefits, Family Leaves and Social Security

Answer 128

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.

Question 129

Unemployment Compensation

Answer 129

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.

Question 130

What type of employees are NOT covered by the federal-state unemployment compensation system?

Answer 130

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.

Question 131

Eligibility

Answer 131

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.

Question 132

What happens if an employee quits a job without cause or is fired for misconduct?

Answer 132

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.

Question 133

Motivated by the desire to avoid higher unemployment taxes…

Answer 133

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.

Question 134

Family and Medical Leaves of Absence

Answer 134

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.

Question 135

To be eligible for FMLA leave, an employee…

Answer 135

…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.

Question 136

The FMLA provides specific statutory relief for…

Answer 136

…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.

Question 137

Uniformed Services Employment and re-Employment Rights Act (USERRA)

Answer 137

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.

Question 138

As updated in 2008, the USERRA…

Answer 138

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.

Question 139

Section 4312 of the USERRA

Answer 139

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.

Question 140

Section 4316(c) of the USERRA

Answer 140

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.

Question 141

Section 4323 of the USERRA

Answer 141

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.

Question 142

Social Security

Answer 142

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).

Question 143

The federal Social Security Act established a

Answer 143

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.

Question 144

Supplmental Security Income (SSI) program

Answer 144

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

Question 145

Occupational Safety and Health Act of 1970 (OSHA)

Answer 145

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

Question 146

OSHA provides for…

Answer 146

1. The establishment of safety and health standards and

2. effective enforcement of these standards and the other employer duties required by OSHA.

Question 147

The Secretary of Labor has broad authority under OSHA to promulgate

Answer 147

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.

Question 148

Employer Duties

Answer 148

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.

Question 149

OSHA requires employers to?

Answer 149

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.

Question 150

Enforcement

Answer 150

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

Question 151

When are worksite inspections conducted?

Answer 151

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.

Question 152

If OSHA issues a citation for a violation of workplace health or safety standards, the employer may do what?

Answer 152

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.

Question 153

State “Right-To-Know” Legislation

Answer 153

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.

Question 154

Compensation for Employee’s Injuries

Answer 154

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.

Question 155

Common Law Status of Employer

Answer 155

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.

Question 156

Duties

Answer 156

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.

Question 157

At common law, is the employer liable to an injured employee if the employee is harmed by the act of a fellow employee?

Answer 157

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.

Question 158

If the employee is guilty of contributory negligence…

Answer 158

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

Question 159

The rising incidence of industrial accidents resulting from the increasing use of more powerful machinery and the growth of the industrial labor population led to a demand for?

Answer 159

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

Question 160

Federal Employer’s Liability Act (FELA)

Answer 160

(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.

Question 161

Under FELA, contributory negligence

Answer 161

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

Question 162

Worker’s Compensation

Answer 162

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.

Question 163

When an employee is covered by a workers’ compensation statute and the injury is job connected, the employee’s remedy is limited to?

Answer 163

That provided in the workers’ compensation statute.

Question 164

Workers’ compensation proceedings are brought before

Answer 164

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.

Question 165

For injuries arising within the course of the employee’s work from a risk involved in that work, workers’ compensation statutes usually provide

Answer 165

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.

Question 166

Is compensation is generally allowed for a willful, self-inflicted injury or one sustained while intoxicated?

Answer 166

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.

Question 167

Employee Privacy

Answer 167

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.

Question 168

Source of Privacy Rights

Answer 168

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.

Question 169

The privacy rights of individuals working in the private sector are not directly controlled by the Bill of Rights, however…

Answer 169

… 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.

Question 170

Federal Wiretapping Act

Answer 170

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

Question 171

The two major exceptions to the Federal Wiretapping Act

Answer 171

• 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.

Question 172

Employer monitoring of employee phone calls can be accomplished without fear of violating the act if consent is established.

Answer 172

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.

Question 173

The Electronic Communications Privacy Act of 1989 (ECPA)`

Answer 173

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.

Question 174

Property Searches

Answer 174

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.

Question 175

Drug and Alcohol Testing

Answer 175

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.

Question 176

Employment-Related Immigration Laws

Answer 176

-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).

Question 177

Employer Liability

Answer 177

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.

Question 178

Title VII of the Civl Rights Act of 1964, as Amended

Answer 178

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.

Question 179

What two principal legal theories under which a plaintiff may prove a case of unlawful employment discrimination?

Answer 179

Disparate treatment and disparate treatment

Question 180

Disparate Treatment

Answer 180

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.

Question 181

Under the disparate impact theory

Answer 181

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

Question 182

Disparate Impact

Answer 182

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.

Question 183

Can disparate treatment and disparate impact both be at issue in the same case?

Answer 183

YES!

Question 184

The Equal Employment Opportunity Commission (EEOC)

Answer 184

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.

Question 185

The EEOC administers

Answer 185

• 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).

Question 186

Procedure

Answer 186

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.

Question 187

In most instances the EEOC issues the charging party a right-to-sue letter.

Answer 187

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

Question 188

Patter-or-Practice Cases

Answer 188

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.”

Question 189

Once the pattern or practice of discrimination is established

Answer 189

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.

Question 190

Systemic “Class Action” Cases

Answer 190

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.

Question 191

Damages

Answer 191

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.

Question 192

The Arbitration Option

Answer 192

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.

Question 193

Definition of “Supervisor”

Answer 193

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!!!!

Question 194

What helped define the word “supervisor” ?

Answer 194

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

Question 195

To successfully pursue a Title VII lawsuit, an individual must

Answer 195

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

Question 196

Race and Color

Answer 196

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.

Question 197

Religon

Answer 197

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.

Question 198

Garments Worn for Religious Reasons

Answer 198

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.

Question 199

Title VII permits religious societies to …

Answer 199

… 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.

Question 200

Employers who discriminate against female or male employees because of their sex are held to be in violation of Title VII.

Answer 200

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.

Question 201

Under the Griggs v. Duke Power precedent

Answer 201

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.

Question 202

Pregnancy Discrimination Act (PDA)

Answer 202

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.

Question 203

Is an employer who does not provide disability benefits or paid sick leave to other employees required to provide them for pregnant workers?

Answer 203

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

Question 204

The PDA also protects women from…

Answer 204

Termination or other employment actions because of pregnancy.

AND

Discrimination after giving birth to a child for up to four months thereafter.

Question 205

Sexual Harassment

Answer 205

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

Question 206

Tangible Employment Action

Answer 206

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.

Question 207

Aided-in-the-Agency -Relation Standard

Answer 207

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.

Question 208

Hostile Work Environment

Answer 208

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.

Question 209

The employer may raise an affirmative defense to liability damages, in an sexual harassment- hostile work environment case, by proving that

Answer 209

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.

Question 210

What will aid the employer in proving the affirmative defense in hostile working environment cases?

Answer 210

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.

Question 211

The “primary objective of Title VII… meant to influence primary conduct, is not to provide redress but to avoid harm.”

Answer 211

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.

Question 212

Nonsupervisors

Answer 212

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.

Question 213

Protection against Retaliation

Answer 213

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].

Question 214

Some U.S. courts of appeals had held that the retaliation provisions set forth in Section 704(a) of Title VII apply only to…

Answer 214

…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.

Question 215

The EEOC takes the position that claims can be filed for retaliation not only under Title VII…

Answer 215

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

Question 216

National Origin

Answer 216

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.

Question 217

What requirements cannot be justified by business necessity.. what does that mean?

Answer 217

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.

Question 218

Adverse employment action based on an individual’s lack of English language skills…

Answer 218

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

Question 219

Title VII Exceptions

Answer 219

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.

Question 220

Bona Fide Occupational Qualification Exception

Answer 220

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.

Question 221

Testing and Educational Requirements

Answer 221

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.

Question 222

Validity Generalization

Answer 222

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

Question 223

The Civil Rights Act of 1991 makes it an unlawful employment practice for…

Answer 223

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.

Question 224

Race-norming Issue

Answer 224

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

Question 225

Seniority Sytem

Answer 225

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.

Question 226

Section 703(h) provides that

Answer 226

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.

Question 227

Affirmative Action Plan (AAP)

Answer 227

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.

Question 228

Affirmative Action Programs

Answer 228

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.

Question 229

Reverse Discrimination

Answer 229

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.

Question 230

Executive Order

Answer 230

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.

Question 231

Other Equal Employment Opportunity (EEO) Laws

Answer 231

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

Question 232

Equal Pay

Answer 232

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.

Question 233

The Equal Pay Act’s Four Exceptions

Answer 233

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

Question 234

Age Discrimination in Employment Act (ADEA)

Answer 234

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

Question 235

Section 4(a) of the ADEA

Answer 235

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.

Question 236

Section 7(b) of the ADEA

Answer 236

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.

Question 237

Older Workers Benefit Protection Act (OWBPA) of 1990

Answer 237

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.

Question 238

Procedures and time limitations for filing and processing ADEA charges are the same as those under Title VII. However…

Answer 238

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.

Question 239

Rehabilitation Act of 1973

Answer 239

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.

Question 240

Rehabilitation Act

Answer 240

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.

Question 241

To establish a viable claim under the Americans with Disabilities Act, 2008, the plaintiff must prove that

Answer 241

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.

Question 242

The ADAA defines the terms disability in a three-pronged definition as it follows

Answer 242

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.

Question 243

Reasonable Accommodations under the ADA

Answer 243

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.

Question 244

Reasonable Accommodations under the ADA (CONT)

Answer 244

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.”

Question 245

Failure to Take Action

Answer 245

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.

Question 246

Where a disability is obvious and known to the employer…

Answer 246

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.

Question 247

Exclusions from Coverage of the Act

Answer 247

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.

Question 248

Title V of the Coverage Act

Answer 248

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.

Question 249

GINA

Answer 249

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.”

Question 250

Extraterritorial Employment

Answer 250

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.