Statutory Exceptions to Employment at Will

Question 1

Intentional Discrimination with Direct Evidence (Disparate Treatment)

[employment discrimination: Title VII]

Answer 1

Direct evidence occurs where there is no room for inference or presumption on the issue of discriminatory intent. “Evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee that, if believed, proves the existence of a fact without inference or presumption.”
1. Where there is direct evidence, the McDonnell Douglas framework does not apply
2. Possibility of direct evidence is less likely today than 50 years ago
—
Example: A letter from the employer to the employee stating, “You were fired because you are black.”

Question 2

Four-part test to determine whether remarks are sufficient as direct evidence

[employment discrimination: Title VII]

Answer 2

Where a plaintiff offers remarks as direct evidence, we apply a four-part test to determine whether they are sufficient to overcome summary judgment by looking at whether the comments are (Reed v. Neopost USA, Inc, 5th Cir.):

1. Related to the protected class
2. Proximate in time to the termination
3. Made by an individual with authority over the employment decision at issue, and
4. Related to the employment decision at issue

Question 3

Common Employer Defenses to Direct Evidence

[employment discrimination: Title VII]

Answer 3

1. Mixed Motive Defense
2. Bona Fide Occupation Qualification (BFOQ)
3. After-Acquired Evidence

Question 4

Mixed-Motive Defense

[employment discrimination: Title VII]

Answer 4

Defendant can limit damages in a case involving a direct evidence of discrimination by successfully arguing that it would have taken the same adverse action against the plaintiff even in the absence of any discriminatory motive.

It is not a complete bar but eliminates the recovery of backpay, compensatory and punitive damages, reinstatement, and promotion

Question 5

Bona Fide Occupation Qualification (BFOQ)

[employment discrimination: Title VII]

Answer 5

Defendant can acknowledge that it discriminated, but argue that the discrimination was a bona fide occupation qualification (BFOQ). In order for the BFOQ defense to apply, an employer must show that a protected class has been excluded because substantially all of them cannot perform the job duties

Notice that neither race nor color can ever qualify as a BFOQ

Question 6

BFOQ - Two-part test from Western Air Lines, Inc. v. Criswell

[employment discrimination: Title VII]

Answer 6

1. Part 1: First, the employer must establish that the challenged policy is “reasonably necessary to the essence of the employer’s business.
   - Objective test.
   - “The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving”
2. Part 2: The employer must demonstrate that it is compelled to rely on age as a proxy for the safety-related job qualifications identified in part 1. Two alternative means for establishing part 2:
   - “a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position,” or
   - “it is highly impractical for the employer” to individual test employees to determine if each has the necessary qualifications”

Question 7

BFOQ Language in Title VII – Sec. 703(e)

[employment discrimination: Title VII]

Answer 7

Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise

Question 8

After-acquired evidence

[employment discrimination: Title VII]

Answer 8

An employer can use evidence discovered after the discharge or refusal to hire to defend claim of discrimination IF it was of such severity that the employee in fact would have been terminated on those grounds along if the employer had known of it at the time of the discharge.”

Not a complete bar to plaintiff’s claim – excludes the availability of reinstatement, front pay, and limits back pay (from the date of the unlawful discharge to the date the new information was discovered).

Question 9

McDonnell Douglas Framework - three steps

[employment discrimination: Title VII]

Answer 9

Applies in Intentional Discrimination with Circumstantial Evidence (Disparate Treatment)

1. Step One: employee establishes a prima facie case of discrimination
2. Step Two: burden shifts to employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action
3. Step Three: burden shifts back to employee to show that the employer’s stated reason was pretext

Question 10

Step One in the McDonnell Douglas framework - prima facie case

[employment discrimination: Title VII]

Answer 10

Step One: An employee in a Title VII case must carry the initial burden of establishing a prima facie case of racial discrimination by showing:
1. He belongs to a racial minority (protected class)
2. He applied and was qualified for a job for which the employer was seeking applicants (qualified for the job)
3. That, despite his qualifications, he was rejected, (adverse action) and
4. That, after his rejection, the position remained open and the employer continued to seek applicants from persons of complaint’s qualifications (some other evidence of discrimination in the case)
—
These four requirements eliminate the most common nondiscriminatory reasons for the adverse action – if Plaintiff satisfies Step One, a presumption arises that the employer unlawfully discriminated

Question 11

Step Two in the McDonnell Douglas framework - burden shifting

[employment discrimination: Title VII]

Answer 11

Step Two: Once a prima facie case is proved, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. This can be a subjective rather than objective decision (p. 397)
1. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted. In other words, the presumption drops from the remainder of the case. (Burdine)
- Defendant merely has to “articulate” a legitimate reason “through the introduction of admissible evidence”
- It is a burden of production, not persuasion
2. If the defendant does nothing (if the trier of fact believes the Plaintiff’s evidence AND the employer is silent in the face of the presumption, the court must enter judgment for the Plaintiff (Burdine)
—
Remember: Plaintiff always retains the ultimate burden of persuasion in the case (St. Mary’s Honor Ctr. v. Hicks)

Question 12

Step Three in the McDonnell Douglas framework - burden shifting

[employment discrimination: Title VII]

Answer 12

Step Three: The burden shifts back to the plaintiff to show that the employers stated reason was pretext

1. In Burdine, the Court also stated that “this burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination” (p. 400)
2. Pretext definition: That the reason articulated by the employer was not the true reason for the employment decision, or that it was “in fact a coverup for a racially discriminatory decision”

Question 13

Types of evidence that might show pretext (McDonnell Douglas)

[employment discrimination: Title VII]

Answer 13

1. Evidence that white employees were involved in similar unlawful conduct but were retained or rehired
2. Evidence of the employer’s treatment of the plaintiff before his termination
3. Evidence of the employer’s reaction to plaintiff’s civil rights activities
4. Statistics
5. Evidence of employer’s policy and practices with minority employment

Question 14

Two methods Plaintiff can use to establish pretext (Burdine)

[employment discrimination: Title VII]

Answer 14

1. Directly: by convincing the factfinder that the employer took the adverse action as a result of an unlawful motive
2. Indirectly: by convincing the trier of fact that the reason the employer gave is unworthy of belief
   - Here, it permits but doesn’t require plaintiff to win. It is up to the jury to make the determination (Hicks)

Question 15

Intentional Discrimination Mixed-Motive Cases (Disparate Treatment) - Difference between single vs mixed motive cases

[employment discrimination: Title VII]

Answer 15

A single motive case involves the plaintiff alleging an improper motive for the defendant’s conduct, while the defendant disavows that motive and professes only a non-discriminatory motive

On the other hand, a true mixed motive case involves either a defendant who admits to a partially discriminatory reason for its actions, while also claiming it would have taken the same action were it not for the illegitimate rationale

Question 16

Burden of proof in mixed-motive case

[employment discrimination: Title VII]

Answer 16

Mixed motive is an affirmative defense on which an employer bears the burden of persuasion by a preponderance of the evidence

Sec. 706(g)(2)(B): requiring the employer to “demonstrate” that it “would have taken the same action in the absence of the impermissible motivating factor.”

Sec. 701(m): The Act defines “demonstrate” as “meeting the burdens of production and persuasion.”

Question 17

Effect of employer carrying the burden with mixed motive defense

[employment discrimination: Title VII]

Answer 17

If the jury finds the employer has carried its burden regarding the defense, the employer avoids:

• Liability for monetary damages, including back pay, front pay, emotional distress, and punitive damages, and
• Being subject to an order requiring reinstatement or promotion

Question 18

Impact on employee when employer carries burden with mixed motive defense

[employment discrimination: Title VII]

Answer 18

The court may still grant the plaintiff injunctive relief (excluding reinstatement or promotion) and attorneys’ fees (Sec. 706(g)(2)(B)(i)&(ii)).

Question 19

Mixed motive defense and direct evidence

[employment discrimination: Title VII]

Answer 19

Plaintiff need not present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII

Given that Title VII, “on its face,” “does not mention” that a plaintiff must make a heightened showing through direct evidence, the Court reasoned that in order to obtain an instruction a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex, or national origin, was a motivating factor for any employment practice.”

Question 20

Title VII Remedies for Intentional Discrimination

[employment discrimination: Title VII]

Answer 20

1. Injunctive relief
2. Reinstatement
3. Back pay
4. Any other equitable relief as the court deems appropriate (examples: declaratory relief, front pay)

Question 21

Costs

[employment discrimination: Title VII]

Answer 21

“the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee (including expert fees) as part of the costs”

Other items included as costs: out of pocket expenses incurred by a party during the courts of the legal proceeding, such as:

1. Court filing fees
2. Photocopying costs
3. Court reporter fees for videotaping and stenographic costs
4. Docket costs on appeal
5. Jury fees
6. Postage
7. Long distance phone calls
8. Travel expenses
9. Expert fees and expenses required to be incurred during the proceeding

Question 22

How back pay is calculated with the damage cap

[employment discrimination: Title VII]

Answer 22

Back pay is not considered part of compensatory damages, so it is not included in the damage cap .

Question 23

Damage caps

[employment discrimination: Title VII]

Answer 23

Limitations: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party—

1. In the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding year, $50,000
2. In the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000, and
3. In the case of a respondent who has more than 200 and fewer than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000, and
4. In the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000

Question 24

Systemic Disparate Treatment

[employment discrimination: Title VII]

Answer 24

Definition: When an employer intentionally treats a group of people – rather than just one employee – less favorably than others based on a protected characteristic. Depending on the size of the group, it is possible to bring a class action lawsuit as a disparate treatment claim.

Question 25

Stage 1: Establishing the Existence of systematic disparate treatment

[employment discrimination: Title VII]

Answer 25

1. In order for the plaintiff to establish a disparate treatment class action, the plaintiff bears the burden of establishing by a preponderance of the evidence that the employer engaged in a pattern or practice of discrimination.
2. Proof of isolated discriminatory acts is insufficient to establish a prima facie case of pattern/practice discrimination.
3. The plaintiff is not required to (but can) produce direct or comparative evidence of discrimination pertaining to each member of the class for whom relief is sought.
4. Alternatively, the plaintiff may rely upon statistical evidence to create an inference of class-wide discrimination. Hazelwood serves as an example of how complicated this method can be
5. If the plaintiffs succeed in establishing pretext with stage 1, this creates a presumption of discrimination against every member of the class who applied for the job or promotion and who possessed the minimal qualifications for the job

Question 26

Use of statistics in establishing the existence of systematic disparate treatment

[employment discrimination: Title VII]

Answer 26

1. Statistics alone may be used to establish a prima facie case of systematic disparate treatment where a gross, statistically significant disparity exists.
2. Usually, plaintiffs do not rely on statistics alone, but they usually also offer evidence of individual instances of discriminatory treatment in addition to the statistics
3. Many courts have held that disparities observed in statistical data must be statistically significant at the 5 percent level (two standard deviations) in order to support an inference of discrimination
4. If a plaintiff establishes a prima facie case of systematic disparate treatment using solely statistical evidence, the defendant can rebut the plaintiff’s case in two ways:
   - Explain away any statistical disparity by, for example, demonstrating that the plaintiff’s statistical calculations are based on faulty data, flawed computations, or improper methodologies, or
   - Introduce alterative statistical evidence.
5. Once the defendant offers its evidence, the plaintiff then bears the burden of persuading the trier of fact that the new considerations are biased, inaccurate, or otherwise “unworthy of credence.” (pretext)

Question 27

Stage 2 in systemic disparate treatment cases

[employment discrimination: Title VII]

Answer 27

Stage 2: involves a series of mini-trials focusing on each individual member of the group who alleges harm as a result of the discriminatory practice.

The burden is on the employer in stage 2 to show that a specific member of the group would not have been hired for entirely legitimate reasons

Question 28

Class action suits

[employment discrimination: Title VII]

Answer 28

1. One or more plaintiffs are named plaintiffs on behalf of a class of persons. The members of the class claim they have suffered a common injury or harm by the defendants.
2. After the case is filed, the plaintiffs must seek court approval for a class certification
3. The defendants usually object to the class certification because class action suits are expensive and the risk large rewards promote settlement with plaintiffs
4. Class action lawsuits may be brought in most state courts or in federal court, and
5. Plaintiffs’ attorneys often benefit more than each individual class member because they sometimes receive as much as 50% of any judgment or settlement award

Question 29

Difference between Disparate Impact and Systemic Disparate Treatment claims

[employment discrimination: Title VII]

Answer 29

1. The ultimate fact to be proved with Disparate Impact is the discriminatory effects of a policy, not discriminatory intent
2. In other words, an employer’s facially neutral policy or practice may be unlawful – even absent a showing of discriminatory intent – merely because it has a significant adverse impact upon a protected group.

Question 30

Griggs v. Duke Power Co. (p. 454) takeaway

[employment discrimination: Title VII]

Answer 30

1. Supreme Court held that a showing of good intent or lack of discriminatory intent did not redeem an employment practice that was unrelated to measuring job capability and had the impact of disproportionately excluding racial minorities
2. “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude members of a protected group cannot be shown to be related to job performance, the practice is prohibited.”

Question 31

Elements of a Disparate Impact Claim

[employment discrimination: Title VII]

Answer 31

1. Step 1: Plaintiff must:
   - Identify a facially neutral factor used to make an employment decision; and
   - Prove that the factor has a disparate impact on a protected group
2. Step 2: Defendant may avoid liability by:
   - Proving that the factor is justified by business necessity (but the Supreme Court in Griggs said that if the “practice cannot be shown to be related to job performance, the practice is prohibited.”)
3. Step 3: Where a factor with a disparate impact is justified by business necessity, a plaintiff can still prevail by demonstrating that “other selection processes that have a lesser discriminatory effect could also suitably serve the employer’s business needs.”

Question 32

Exception to Disparate Impact claims

[employment discrimination: Title VII]

Answer 32

Title VII excepts “bona fide” seniority systems

Question 33

2 categories of harassment claims

[employment discrimination: Title VII]

Answer 33

1. Quid Pro Quo
   - Literally translated, it means “this for that”
   - Harassment that has resulted in a “tangible employment action.”
   - In the context of sexual harassment, it usually is brought when a supervisor uses sex as a tool for either reward or punishment
2. Hostile Work Environment
   - Claim brought where a plaintiff alleges she suffered a hostile atmosphere in the workplace, though not necessarily one that has had a direct economic impact.

Question 34

Importance in distinguishing the two types of harassment claims

[employment discrimination: Title VII]

Answer 34

If the plaintiff establishes that her acceptance or rejection of the harassment was the cause of the tangible employment action, then the employer is vicariously liable for the supervisor’s harassment. The Faragher defense never applies to quid pro quo harassment.

Question 35

What makes a work environment hostile?

[employment discrimination: Title VII]

Answer 35

Workplace conduct affects a term, condition, or privilege of employment within the scope of Title VII when it is sufficiently severe or pervasive

1. Notice the word “or” and how courts have construed this standard to be a sliding scale
2. One incident, if sufficiently severe, can constitute actionable harassment
3. It does not matter if the plaintiff voluntarily engaged in an “intimate relationship” with her harasser. The proper inquiry is whether the conduct was unwelcome. Unwelcome behavior does not equate with voluntary behavior.

Question 36

How to measure whether conduct is severe or pervasive

[employment discrimination: Title VII]

Answer 36

Harris v. Forklift Systems, Inc. p. 488

1. When bringing a hostile work environment claim, a plaintiff is not required to prove she suffered a psychological injury. The severe or pervasive standard “takes a middle path.” Title VII is violated “before the harassing conduct leads to a nervous breakdown.”
2. Instead, the plaintiff must prove:
   - The victim finds the environment subjectively abusive; and
   - A reasonable person in the totality of the circumstances would have believed that the behavior created a hostile or abusive working environment.

Question 37

Subjective requirement to prove conduct is severe or pervasive

[employment discrimination: Title VII]

Answer 37

1. In Meritor, the Court stated that the gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome – this is not difficult to satisfy. Plaintiff usually testifies that she found the comments or advances offensive.
2. Other evidence she can offer: evidence of the effect on the employee’s psychological well-being. The court states that this is “not required” but is “relevant to determining whether the plaintiff actually found the environment abusive.”
3. Purpose: to exclude a claim based on a consensual, dating/sexual relationship which for many reasons is not a good idea

Question 38

objective requirement to prove conduct is severe or pervasive

[employment discrimination: Title VII]

Answer 38

More difficult to satisfy because it involves the application and balancing of the following factors:

1. Frequency of the conduct (pervasiveness)
2. Severity of the conduct
3. Whether it is physically threatening or humiliating
4. Whether it is “a mere offensive utterance” and
5. Where it unreasonably interfered with an employee’s work performance

Question 39

When is harassment because of sex

[employment discrimination: Title VII]

Answer 39

Oncale v. Sundowner Offshore Servs., Inc., p. 493

1. The Supreme Court rejected a per se rule that same sex harassment was prohibited under Title VII. The key is that the claimant must show the alleged conduct constituted both (1) discrimination and (2) “because of” plaintiff’s sex
2. The Court recognized three situations in which same sex conduct would be actionable:
   - Harassers were motivated by sexual desire
   - Harasser was motivated by general hostility to persons of one gender
   - Harasser treated one sex differently than the other within a mixed-sex workplace

Question 40

When is an employer liable for sexual harassment (employer’s strict liability for actions of a supervisor employee)

[employment discrimination: Title VII]

Answer 40

Faragher v. City of Boca Raton, p. 508

1. If the discriminatory conduct by a supervisory employee results in a tangible employment action, the employer is liable for the action of its supervisor. The tangible employment decision could not have been taken absent the agency relationship so the supervisor “merges” with the employer.
2. If the harassment results in a hostile work environment, the employer is still subject to vicarious liability for the hostile work environment created by a supervisor, BUT they can escape liability if they establish an affirmative defense – two steps: Employer must prove BOTH
   - The employer exercised reasonable care to prevent & correct promptly any sexually harassing behavior; AND
   - The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Question 41

Co-Worker Harassment

[employment discrimination: Title VII]

Answer 41

1. Faragher/Ellerth test does not apply
2. In Vance v. Ball State University, the Supreme Court held that an employer will not automatically be responsible for a co-worker’s independent intentional act. Instead, the employer will only be liable for co-worker harassment if it was negligent in correcting the harassment. The issue usually is whether the company either knew or should have known the coworker was engaging in harassment and failed to take action.

Question 42

Congressional Findings of the ADA

[employment discrimination: ADA]

Answer 42

Historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem

The nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals

Question 43

Section 101 of Title I of the ADA: Who does it apply to

[employment discrimination: ADA]

Answer 43

1. Title I of the ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment
2. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to Federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

Question 44

Exhaustion of Administrative Remedies

[employment discrimination: ADA]

Answer 44

The plaintiff alleging disability discrimination must file a charge of discrimination and exhaust her administrative remedies with the EEOC just like under Title VII.

Question 45

Damage Awards

[employment discrimination: ADA]

Answer 45

Limitations: The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party—
1. In the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding year, $50,000
2. In the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000, and
3. In the case of a respondent who has more than 200 and fewer than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000, and
4. In the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000

Question 46

Elements to show a plaintiff is within a protected class of the ADA

[employment discrimination: ADA]

Answer 46

1. Plaintiff must establish that she is an individual with a disability that substantially limits one or more major life activities
2. Plaintiff must show that she is “qualified” to perform the essential functions of the job in question with or without an accommodation
   - If accommodations are needed, the ADA requires employees to request one. If a reasonable accommodation is available, and the employer fails to offer it to the employee, then under section 102(b)(5), this failure to accommodate is itself a violation of the ADA
   - Reasonable accommodations include: making existing facilities used by employees readily accessible to an usable by individuals with disabilities and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities
3. ## Despite her qualifications, plaintiff suffered an adverse action.Note: elements 1 & 2 require the presentation of medical evidence

Question 47

Establishing a disability under the ADA

[employment discrimination: ADA]

Answer 47

Establishing a disability under the ADA – if a person meets any one of these three tests, she is considered to be an individual with a disability under the ADA:

1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual
2. A record of such an impairment
3. Being regarded as having such an impairment

Question 48

Examples of major life activities

[employment discrimination: ADA]

Answer 48

Examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working (Sec. 3(2)).

Also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions

Question 49

Definition of “substantially limits”

[employment discrimination: ADA]

Answer 49

ADAAA requires interpreting them broadly

1. ADAAA Sec. 3: “definition of disability shall be construed in favor of broad coverage of individuals”
2. “sensationally limits” shall be interpreted consistently with the findings and purposes of the ADA
3. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability
4. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

Question 50

Consideration of mitigating measures

[employment discrimination: ADA]

Answer 50

1. ADAAA prohibits employers from considering the ameliorative effects of mitigating measures, except for ordinary eyeglasses and contact lenses
2. Now, when assessing an employee’s physical or mental impairment, an employer must determine whether the impairment would substantially limit a major life activity if corrective measures were not in fact being taken
3. Employee’s condition will be judged in the unmitigated state
4. This means that in an adverse employment issue of possible discrimination, the employee’s disabling condition will now be considered without regard to mitigating measures

Question 51

A record of such an impairment meaning

[employment discrimination: ADA]

Answer 51

EEOC regulations define this to mean that the individual has a “past history” of impairment.

In other words, an individual may previously have had an impairment, such as cancer, but medically has overcome that impairment. Yet, they may still face prejudice and discrimination in the workplace based on the prior history of a medical condition that qualified as an impairment.

Question 52

Being regarded as having such an impairment meaning

[employment discrimination: ADA]

Answer 52

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Question 53

ADAAA Exemptions

[employment discrimination: ADA]

Answer 53

ADAAA Exemptions – there are certain classes of individuals exempt because the term disability does not cover their conditions

1. Homosexuality and bisexuality
2. Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders
3. Compulsive gambling, kleptomania, or pyromania
4. Psychoactive substance use disorders resulting from current illegal use of drugs
   - Note that former users who are rehabilitated ARE covered

Question 54

Affirmative Defenses under the ADA

[employment discrimination: ADA]

Answer 54

1. Undue Hardship - Sec. 101(10)(A)-(B) – the ADA does not require employers to make an accommodation if doing so would impose an undue hardship on the operation of the business
2. Direct Threat - found in Sec. 103(b): Employers are not required to offer an employee an accommodation that would pose either a direct threat to the health or safety of either the plaintiff or other employees in the workplace

Question 55

Undue hardship meaning & factors

[employment discrimination: ADA]

Answer 55

The term undue hardship means an action requiring significant difficulty or expense, when considered in light of these factors:

1. The nature and cost of the accommodation needed
2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility
3. The overall financial resources of the covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
4. The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity

Question 56

Seniority systems as an undue hardship

[employment discrimination: ADA]

Answer 56

1. General Rule: the presumptive rule is that if a defendant shows that a proposed ADA accommodation for a disabled person would conflict with a company’s seniority system then the defendant is entitled to summary judgment because typically this establishes that the accommodation is not “reasonable”
2. ## Exception: the employer will not be entitled to summary judgment if the plaintiff presents evidence of special circumstances surrounding the particular case that demonstrate the assignment is nonetheless reasonableExamples: the plaintiff might show that the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently reducing expectations that system will be followed; that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter

Question 57

Introduction

[employment discrimination: 1981]

Answer 57

1. It was originally enacted as part of Section 1 of the Civil Rights Act of 1866 – the other part that was § 1982. Congress passed it during Reconstruction Era following the end of the Civil War. It was passed to eliminate the effects of Black Codes, which were enacted by southern state legislatures, and it was enacted under Congress’s power pursuant to the 13th Amendment
2. It remained largely dormant for almost a century due to the Supreme Court decision in The Civil Rights Cases. It was revived in Jones v. Alfred H. Mayer Co.
3. ONLY applies to intentional discrimination – Supreme Court held in General Building Contractors Association v. Pennsylvania that a claimant could NOT bring a disparate impact claim
4. The Title VII mode of proof first outlined in McDonnell Douglas applies equally to disparate treatment claims under § 1981

Question 58

Jones v. Alfred H. Mayer Co. takeaway

[employment discrimination: 1981]

Answer 58

“We hold that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed is a valid exercise of the power of Congress to enforce the 13th Amendment.”

Vital that it was using 13th Amendment because there’s no requirement for state action there

Question 59

Damages

[employment discrimination: 1981]

Answer 59

The Court held that individuals suing under Section 1981 were eligible to recover both equitable relief and tort-like damages including compensatory and punitive damages (Johnson v. Railway Express Agency, Inc.)

Question 60

Right to jury trial

[employment discrimination: 1981]

Answer 60

Interpreted as allowing a right to a jury trial.

Question 61

Small business exception

[employment discrimination: 1981]

Answer 61

No small business exception

Question 62

Administrative exhaustion requirement

[employment discrimination: 1981]

Answer 62

No administrative exhaustion requirement

Question 63

McDonald v. Santa Fe Trail Transportation Co. takeaway

[employment discrimination: 1981]

Answer 63

White employees can bring race discrimination suits under Title VII and Section 1981

Question 64

St. Francis College v. Al-Khazraji takeaway

[employment discrimination: 1981]

Answer 64

Section 1981 includes claim of race discrimination even among Caucasians

Section 1981 covers “at least” discrimination based on “ancestry or ethnic characteristics,” thus covering sub-groups often categorized under a single racial label.

Still does not cover national origin. “I therefore read the Court’s opinion to state only that discrimination based on birthplace alone is insufficient to state a claim under § 1981.”

Question 65

Section 1981(b)

[employment discrimination: 1981]

Answer 65

Congress enacted to overrule a case limiting § 1981. Made the statute apply to all facets of contracts, including post formation conduct.

Also includes a four-year statute of limitations, but it only applies to harassment, retaliation, and all other post-formation claims.

Question 66

Advantages of § 1981 claims

[employment discrimination: 1981]

Answer 66

1. Section 1981 applies to race-based claims and allows applicants and employees who are subject to intentional discrimination (i.e., disparate treatment) to sue for damages
2. Broad definition of race for these claims, allowing cases of discrimination based on ancestry or ethnic characteristics, race, or color
3. Advantages: no requirement to exhaust administrative remedies before state or federal agency before filing suit; longer statute of limitations; no cap on damages; no small business exception; non-employers (individual supervisors) may be added as defendants; retaliation claims are covered
4. Section 1981 does not apply to discrimination on the basis of age, disability, gender, including claims of sexual harassment

Question 67

Overview of Unemployment

[unemployment and unemployment insurance]

Answer 67

The Social Security Act of 1935 was the first federal law passed to address the problem of unemployment. This was during the Great Depression, when approximately 25% of the workforce was unemployed.

Question 68

Theory Behind Unemployment Insurance

[unemployment and unemployment insurance]

Answer 68

It was not intended to be an anti-poverty measure;

Rather, the system attempted to guarantee newly unemployed workers—not just low-income workers—a temporary financial cushion that allows them time to find appropriate new jobs.

Question 69

Nature of the Scheme

[unemployment and unemployment insurance]

Answer 69

Joint federal-state scheme

Each state disperses individual unemployment benefits. The federal government does not directly provide UI benefits. Instead, it provides funding to states with their own “qualifying” UI programs.

Congress did not require states to adopt individual unemployment programs, but it gave them a tremendous incentive to encourage them to do so.

Question 70

How it Works

[unemployment and unemployment insurance]

Answer 70

1. Every employer is responsible for paying a federal payroll tax on each covered employee. Employers owe a FUTA tax on the first $7,000 of wages that they paid to each employee during the calendar year. The FUTA tax was 6.0% (.060) for 2019.
2. If an employer operates in a state with a qualified state unemployment insurance program, then an employer may offset the federal tax with any state UI taxes it pays. In Tennessee, for instance, NEW employers are assigned a state rate based on the occupation of the employee at issue. Most occupations in TN are taxed at 2.7% of the first $7,000 in wages, but the employer STILL gets to deduct the maximum credit of 5.4% (0.54) against its FUTA tax. So, employers only pay a federal tax of 0.6% (which is the difference between the federal and state credit).
3. The incentive:
   - If a state adopted a qualifying program under this scheme, the employer paid the majority of its tax to the state rather than the federal program. Only the difference between the federal and state tax(usually, 0.6% in TN) is paid to the federal program.
   - If a state did not adopt a qualifying program, the employer would pay the entire federal tax, and its employees would not receive any unemployment benefits. So, employers in a state without an UI program essentially would fund programs in other states.

Question 71

State Variations

[unemployment and unemployment insurance]

Answer 71

All state UI programs have significant common elements, with considerable variations at the margins (textbook p. 642)

Common Elements: These are the ones mandated by the federal statute in order for a state program to qualify. These include:

1. An experience-rating tax (Section 3302)
2. Method of benefit payments
3. Prohibitions for denying benefits

Question 72

Experience-Rates

[unemployment and unemployment insurance]

Answer 72

Found in Section 3302 in the FUTA
States must impose an “experience-rating” tax, which ties employers’ payments in part to their history of layoffs

There are four approaches among the states (p. 650 of the textbook)

1. Reserve Ratio (most common)
2. Benefit Ratio
3. Benefit-Wage Ratio
4. Payroll Decline

Question 73

Method of Benefit Payments

[unemployment and unemployment insurance]

Answer 73

FUTA Section 3304(a): Requirements. The Secretary of Labor shall approve any state law submitted to him, within 30 days of such submission, which he finds provides that –
1. All compensation is to be paid through public employment offices or such other agencies as the Secretary of Labor may approve
2. The statute requires that statutes distribute UI benefits to workers from a government office, rather than via the mail.
—
Tennessee’s benefits are regulated by the Dept. of Labor & Workforce Development

Question 74

Prohibitions for Denying Benefits

[unemployment and unemployment insurance]

Answer 74

FUTA also indicates that states may not deny unemployment benefits for certain reasons – Section 3304

1. Sec. 3304(a)(5): compensation shall not be denied . . . to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
   - If the position offered is vacant due directly to a strike, lockout, or other labor dispute
   - If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality
   - If as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization
2. Sec. 3304(a)(6)(A)(i): Who does this apply to? School teachers. Can’t pay them for the summer.
3. Sec. 3304(a)(12): (Wimberly case – p. 661)
   - No person shall be denied compensation solely on the basis of pregnancy or termination of pregnancy
4. Sec. 3304(a)(13): Who does this apply to? Athletes. Can’t pay them for their off season (if any).
5. Sec. 3304(a)(10): KEY Provision – Compensation shall not be denied to any individual for any cause other than:
   - Discharge for misconduct in connection with his work (and states define what constitutes misconduct)
   - Fraud in connection with a claim for compensation, or receipt of disqualifying income

Question 75

Eligibility for Benefits

[unemployment and unemployment insurance]

Answer 75

Varies by state.

1. In Tennessee, the current maximum that is paid normally is 26 weeks. The maximum amount in TN is currently $275 per week.
2. In 2008, Congress enacted the federal Emergency Unemployment Compensation program that temporarily provided workers in any state who exhausted their regular UI additional weeks of benefits. Those temporary federal benefits expired on Jan. 1, 2014. Under this law, workers in Tennessee could receive an additional 37 weeks of unemployment the maximum emergency benefit varies by state based in part on the unemployment rate in that area)
3. Thus, qualifying workers in Tennessee previously could receive benefits for a total of 63 weeks

Question 76

Requirement that someone must have worked to receive benefits

[unemployment and unemployment insurance]

Answer 76

An unemployed worker seeking benefits must have worked during the base period. Why do states impose this requirement?
- In part, it’s a funding issue. The employer will have contributed a tax to the state unemployment fund for the relevant period of time.
—
This requirement excludes:
1. Someone who has never worked
2. Someone who has been out of work for a period of time (say, raising children or attending college) but now seeks work

Question 77

Requirements to qualify for benefits

[unemployment and unemployment insurance]

Answer 77

1. If employee voluntarily resigns from employment, she is not eligible for unemployment benefits.
2. If employee is fired for cause, she is not eligible for unemployment benefits
3. Most states impose work search requirements in order to maintain eligibility for unemployment benefits.
   A. In TN = three different valid work searches each week they claim unemployment benefits

Question 78

The work search requirement - Employment a worker is required to accept

[unemployment and unemployment insurance]

Answer 78

Workers are not required to accept any job offer they receive through the UI program. FUTA specifically states that a worker need not accept a position that is vacant due to a strike, lockout, or other labor dispute, or would require a worker to join a company union.

Question 79

Other limits on the work search requirement for unemployment benefits

[unemployment and unemployment insurance]

Answer 79

States (including TN) consider whether the job opportunity was suitable for the worker. If not, the worker’s refusal of that job will not forfeit eligibility for benefits because the system, in part, was intended to give workers the freedom to find a job that utilizes their skills and experience.

Most states (including TN) consider a number of factors in determining whether employment is suitable. In TN: degree of risk involved to the claimant’s health, safety, and morals; the claimant’s physical fitness and prior training; the claimant’s experience and prior earnings; the claimant’s length of unemployment and prospects for securing local work in the claimant’s customary occupation; and the distance of the available work from the claimant’s residence

Question 80

The problem Congress aimed to remedy with WARN

[federal regulation of plant closings - WARN]

Answer 80

A worker who is part of a plant closing or mass layoff must compete with other laid off workers for any available jobs

In smaller towns and communities where the employer is a significant part of the local economy, the effects of a plant closing or mass layoff ripples through the community

Question 81

Primary goal of WARN

[federal regulation of plant closings - WARN]

Answer 81

1. WARN attempts to mitigate some—but not all—of the negative consequences of plant closings and mass layoffs
2. In particular, the main purpose of WARN is to provide notice to employees, unions, and state and local government officials
3. The theory is that with notice, workers and communities can better prepare for impending job losses by hopefully finding alternative jobs and, if necessary, obtain retraining

Question 82

Covered employers

[federal regulation of plant closings - WARN]

Answer 82

Section 2101: applies to business that employ at least 100 workers

This number usually does not include temporary employees (only if they have worked longer than 6 of the past 12 months) or part-time employees (defined as an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required

Question 83

Two events trigger notice requirements under WARN

[federal regulation of plant closings - WARN]

Answer 83

1. A plant closing or

2. A mass layoff

Question 84

Effect of a triggering event

[federal regulation of plant closings - WARN]

Answer 84

If either triggering event takes place, WARN requires:

Employers cannot engage in such a plant closing or mass layoff without giving 60 days’ notice to a union (if there is one), to each worker (if there’s no union), and to state & local government officials (Sec. 2102)

Question 85

Requirements in addition to notice

[federal regulation of plant closings - WARN]

Answer 85

There are no other requirements in the statute; all that is required is notice

Question 86

Required contents of the notice

[federal regulation of plant closings - WARN]

Answer 86

Most courts generally require that the notice be pretty specific. For instance, if the notice is to the unrepresented employees because there is no union, it must be written in language understandable to the employee & should contain:
1. A statement as to whether the planned action is expected to be permanent or temporary &, if the entire plant is to be closed, a statement to that effect;
2. The expected date when the plant closing or mass layoff will commence & the expected date when the individual employee will be separated
3. An indication whether or not bumping rights exist; and
4. The name & telephone number of a company official to contact for further information
—
Notice that the content of the notice varies depending on whether it is being given to a union, unrepresented employee, or government official

Question 87

Penalties when an employer fails to provide notice to employees

[federal regulation of plant closings - WARN]

Answer 87

1. Backpay: notice how it is calculated in 2104(a)(1)(A)
   - The statutes indicates it can only be reduced by “any wages paid by the employer to the employee,” any “voluntary and unconditional payment” or “any payment by the employer to a third party or trustee.” It is not reduced by any wages the employee may have earned from another employer
2. Benefits due under an employee benefit plan covered by ERISA including the cost of medical expenses incurred during the notice period
   - Notice that the employer owes this to each employee for each day of the violation
3. Attorneys’ fees

Question 88

Penalties when an employer fails to notify local government officials

[federal regulation of plant closings - WARN]

Answer 88

1. An employer who violates the provisions of section 3 with respect to a unit of local government shall be subject to a civil penalty of not more than $500 for each day of such violation, except that such penalty shall not apply IF the employer pays to each aggrieved employee the amount for which the employer is liable to that employee within 3 weeks from the date the employer orders the shutdown or layoff

Question 89

Exclusivity of remedies

[federal regulation of plant closings - WARN]

Answer 89

1. The remedies provided for in this section shall be the exclusive remedies for any violation of this Act. Under this Act, a Federal court shall not have authority to enjoin a plant closing or mass layoff.
2. So, WARN is the exclusive remedy for a mass layoff or plant closing. Any other civil action will be preempted by WARN

Question 90

Plant closing meaning

[federal regulation of plant closings - WARN]

Answer 90

The term “plant closing” means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss as the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees

1. Note: the threshold number of employees to qualify as a plant closing is 50 employees
2. Employment loss definition – Sec. 2102(a)(6): the term “employment loss” means (A) an employment termination, other than a discharge for cause, voluntary departure, or retirement, (B) a layoff exceeding 6 months, or (C) a reduction in hours of work of more than 50 percent during each month of any 6-month period

Question 91

Mass layoff meaning

[federal regulation of plant closings - WARN]

Answer 91

The term “mass layoff” means a reduction in force which—
1. Is not the result of a plant closing; and
2. Results in an employment loss at the single site of employment during any 30-day period for—
A. (I) at least 33 percent of the employees (excluding any part-time employees); and (II) at least 50 employees (excluding any part-time employees); or
B. At least 500 employees (excluding any part-time employees).
—
Note: for a mass layoff, the employee should take a snapshot of its workforce for a 30 day period. Look both ahead and back for 30 days. During this 30-day snapshot period, the employer does not have the opportunity to establish the separate layoffs were for separate & distinct causes.

Question 92

Mass Layoff Aggregation Provision

[federal regulation of plant closings - WARN]

Answer 92

What this means: if three are two different layoffs in a 90-day period that alone do not meet the requirements of a mass layoff, they will be considered in the aggregate instead of in isolation

Question 93

3 Exceptions to WARN

[federal regulation of plant closings - WARN]

Answer 93

1. Faltering Business Exception
2. Unforeseen Business Exception
3. Natural Disaster Exception

Question 94

x

[federal regulation of plant closings - WARN]

Answer 94

a. Faltering Business Exception – Sec. 2101(b)(1)
1. Applies to plant closings, but not to mass layoffs and should be narrowly construed
2. An employer must have been actively seeking capital or business at the time that 60 day notice would have been required. The employer must have been seeking financing or refinancing through the arrangement of loans, the issuance of stocks, bonds, or other methods of internally generated financing, or the employer must have been seeking additional money, credit, or business through any other commercially reasonable method.
3. There must have been a realistic opportunity to obtain the financing the business sought.
4. The financing or business sought must have been sufficient, if obtained to have enabled the employer to avoid or postpone the shutdown; AND
5. The employer reasonably and in good faith must have believed that giving the required notice would have precluded the employer from obtaining the needed capital or business

Question 95

x

[federal regulation of plant closings - WARN]

Answer 95

b. Unforeseen Business Exception – Sec. 2102(b)(2)(A)
1. A business circumstance may be reasonably unforeseeable if it was caused by some sudden, drastic, and unexpected action, or by conditions outside of the employer’s control.
2. In Roquet, the Seventh Circuit held that the test is “probability” rather than a “mere possibility.”
3. The statute still requires that the employer shall give as much notice as is practicable

Question 96

x

[federal regulation of plant closings - WARN]

Answer 96

c. Natural Disaster – Sec. 2102(b)(2)(B)
1. Applies to plant closings and mass layoffs due to any form of natural disaster. The employer must establish:
A. Floods, earthquakes, droughts, storms, tidal waves, and similar effects of nature are natural disasters under the provisions AND
B. That its plant closing or mass layoff is a direct result of a natural disaster

Question 97

Background

[wages and hours regulation - FLSA]

Answer 97

The FLSA was passed in 1938 and has been amended many times since.

Most states also have their own wage and hour laws

Remember the general rule: whichever law provides MORE protection to employees, whether it is state or federal, is the law that governs.

Question 98

Employee vs independent contractor for purposes of FLSA

[wages and hours regulation - FLSA]

Answer 98

Test: Economic Realities Test

Why this matters: the FLSA applies only to employees

Question 99

Covered Employees

[wages and hours regulation - FLSA]

Answer 99

The Act contains significant “exemptions” from the overtime provisions. The most significant are for executive, administrative, and professional employees.

1. Sec. 213 – but note that the FLSA fails to defines these classifications. The Department of Labor has issued very specific regulations clarifying these categories of workers.
2. Requirements – to qualify under one of these exemptions, the statute requires that an employee BOTH:
   - Be paid a certain minimum salary (current $455/week) – called the SALARY basis test; AND
   - Second, must perform a specified list of duties associated with one of the classifications – called the DUTIES test.
   - Employer bears the proving that an exemption applies. Failure to satisfy either prong means the employee is not exempt and is entitled to overtime pay & the other protections of the statute.

Question 100

Employers who must comply

[wages and hours regulation - FLSA]

Answer 100

1. The FLSA takes a different approach to defining employers than we previously have seen in this course.
2. The Department of Labor’s regulations state that the FLSA applies to employers whose annual sales total exceed $500,000 OR who are engaged in interstate commerce
3. Examples of business that are covered regardless of their volume of business: hospitals, institutions, primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; preschools and elementary and secondary schools, and institutions of higher education; and Federal, state, and local government agencies

Question 101

Minimum Wage

[wages and hours regulation - FLSA]

Answer 101

Current federal minimum wage is $7.25, and has been since 2009

29 states and DC have a minimum wage higher than the federal minimum

Question 102

Exceptions to the $7.25 rate

[wages and hours regulation - FLSA]

Answer 102

1. Newly hired young employees – Sec. 206(g)
   - An employer can pay an employee who is under 20 years old $4.25 per hours for the first 90 calendar days of employment. This is also called the youth minimum wage.
2. Waiters or other employees who regularly and customarily receive at least $30/month in tips. – Sec. 203(t)&(m)
   - Employers can pay these workers only $2.13/hour if: in combination with their tips, they earn the federal minimum wage rate.

Question 103

Child labor generally

[wages and hours regulation - FLSA]

Answer 103

FLSA does not forbid all child labor – only “oppressive” child labor is prohibited (Sec. 212)

Question 104

Definition of “oppressive” for child labor

[wages and hours regulation - FLSA]

Answer 104

General Rule: children between ages 14-16 may be employed if employment takes place outside of school hours. Minimum age is 16 for most jobs, but is younger for certain jobs (e.g., retail). While school is in session, children may not work more than 18 hours/week and no more than 3 hours/day. During the summer, children may not work more than 40 hours/week and no more than 8 hours/day.

Question 105

Exception for youth working in “hazardous occupations”

[wages and hours regulation - FLSA]

Answer 105

Children under the age of 18 may not work in “hazardous occupations” (e.g., mining, excavation, manufacturing explosives, and operating many types of power-driven equipment like forklifts).

Question 106

Special rules for youth agricultural work

[wages and hours regulation - FLSA]

Answer 106

There are special rules for agricultural work. Youth ages 16+ can perform agricultural work at any time even during school hours. Outside of school hours, the standard is 14 years old. But a 12 or 13 year old can perform such work with parental consent.

Question 107

Penalties for child labor violations

[wages and hours regulation - FLSA]

Answer 107

FLSA does not provide a private right of action for child labor violations; the DOL investigates and prosecutes violations.

Sec. 216(e): A civil penalty of not more than $11,000 for each unlawfully employed child (unless the violation causes death or serious injury, and then it is $50,000.)

These civil penalties are paid directly to the federal government and not the child (Sec. 216(e)).

Question 108

Consequence of an employee working more than 40 hours per week

[wages and hours regulation - FLSA]

Answer 108

Employer must pay that employee no less than 1.5 times his/her “regular rate” of pay. This is often called “overtime premium wage.”

Question 109

On Call Time: is it compensable or not?

[wages and hours regulation - FLSA]

Answer 109

Bright v. Houston NW Medical Center Survivor, Inc. (p. 607)
1. Primary inquiry is whether the employee could use his on call time “effectively for his own personal purposes.”
2. Factors: (1) was the employee required to remain on the premises? (2) time the employee is allowed before he must report back to work; (3) the nature and extent of any restrictions imposed on employee during that time.
3. In that case: (1) not required to remain on premises; (2) 20 minutes to get to work; (3) limited the amount of alcohol he could consume and made him wear a beeper = court ultimately said these restrictions meant the time was not compensable, so it would have to be more egregious facts than these
—
NOTE: the 10th Circuit came to a different conclusion with similar facts that same year, so discuss that if you have an essay on this topic

Question 110

Rest Breaks: which ones are compensable and which ones are not?

[wages and hours regulation - FLSA]

Answer 110

15 minutes or less: working time

Under 30 minutes: usually, still working time

30 minutes or more: now, the issue is whether the employee is able to use the time effectively for his or her own purposes. But if so, then not compensable.

Question 111

Is travel time compensable

[wages and hours regulation - FLSA]

Answer 111

Generally, the time spent commuting from an employee’s home to work is not compensable.

But, traveling between two work locations generally IS compensable

Question 112

Preparation time: For instance, if employees spend time before and after work donning and removing protective gear, is that compensable?

[wages and hours regulation - FLSA]

Answer 112

General rule is that the preparation time IS compensable if those activities are an “integral and indispensable part” of the principal activities for which the workers are employed.

Question 113

Remedies recoverable

[wages and hours regulation - FLSA]

Answer 113

Remedies an employee may recover under FLSA:

1. Unpaid minimum wages
2. Overtime compensation
3. Liquidated damages (for willful violations only) – equal to the unpaid minimum wages and/or overtime compensation
4. Reinstatement
5. Injunctive relief

Question 114

Private cause of action under the statute

[wages and hours regulation - FLSA]

Answer 114

For all actions OTHER than child labor violations, an employee can file a private action against his employer.

Question 115

Administrative exhaustion requirement

[wages and hours regulation - FLSA]

Answer 115

There is NO administrative exhaustion requirement

Question 116

Statute of limitations

[wages and hours regulation - FLSA]

Answer 116

2 year statute of limitations for most suits, but if the violation was willful, then the statute of limitations is 3 years

Question 117

General overview of the statute

[wages and hours regulation: Break Time for Nursing Mothers Act]

Answer 117

Effective March 23, 2010, the Patient Protection and Affordable Care Act amended the FLSA to enact a “Break Time for Nursing Mothers” law. Covered employers are required to provide a private location and a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.

Question 118

Who is covered

[wages and hours regulation: Break Time for Nursing Mothers Act]

Answer 118

Who is covered: The law applies to nonexempt (hourly) employees covered by the FLSA.

Question 119

Space requirement

[wages and hours regulation: Break Time for Nursing Mothers Act]

Answer 119

Space: Employers are required to provide a place that is not a bathroom. It must be completely private so that no one can see inside. Employers are not required to create a permanent dedicated space for breastfeeding employees. As long as the space is available each time as employee needs it, the employer is meeting the space requirements.

Question 120

Time requirement

[wages and hours regulation: Break Time for Nursing Mothers Act]

Answer 120

Time: The law requires employers to provide “reasonable” break time, recognizing that how often and how much time it takes to pump is different for every mother. Employers must provide time and space each time an employee needs it. The law does not require pumping breaks to be paid, however if an employer already offers paid breaks and an employee uses the paid break to pump her milk, her time should be paid in the usual way.

Question 121

Small business exception

[wages and hours regulation: Break Time for Nursing Mothers Act]

Answer 121

Small Businesses: Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at factors such as: the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business

Question 122

FMLA background

[family leave time (FMLA)]

Answer 122

1. The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave a year. Sec. 102.
2. It also requires health benefits to be maintained during the leave as if employees continued to work instead of taking leave. Sec. 104(a)(2)

Question 123

Position upon return from leave

[family leave time (FMLA)]

Answer 123

Employees are also entitled to return to their same or an equivalent job at the end of their FMLA leave. Sec. 104(a)(1).

Question 124

Additional benefits to military families

[family leave time (FMLA)]

Answer 124

A 2008 amendment to the FMLA provides additional leave benefits to military families. Eligible employees may take FMLA leave for specified reasons related to certain military deployments of their family members. These workers may take up to 26 weeks of FMLA leave in a single 12-month period to care for a covered service member with a serious injury or illness. Sec. 102(a)(1)(E) & 102(a)(3).

Question 125

Employer definition

[family leave time (FMLA)]

Answer 125

The FMLA applies to all:

1. Public agencies, including local, State, and Federal employers, and local education agencies (schools); and
2. Private sector employers who employ 50 or more employees for at least 20 work weeks in the current or preceding calendar year – including joint employers and successors of covered employers.

Question 126

Eligible employee

[family leave time (FMLA)]

Answer 126

Eligible employee – Sec. 101(2)(A): In order to be eligible to take leave under the FMLA, an employee must;

1. Work for a covered employer
2. Have worked 1,250 hours during the 12 months prior to the start of leave
3. Work at a location where the employer has 50 or more employees within 75 miles and
4. Have worked for the employer for 12 months
   - Calculating the 12 month period: regulations indicate that the employer has the option to count the 12 month period as a calendar year, a fixed 12-month leave or a rolling 12 month calendar

Question 127

Concurrent use of paid annual or sick leave with FMLA leave

[family leave time (FMLA)]

Answer 127

Employers can require employees to concurrently use their paid annual or sick leave with FMLA leave – Sec. 102(d)

The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected.

Question 128

Instances in which an employee can use leave time

[family leave time (FMLA)]

Answer 128

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid, job-protected leave in a 12 month period for one or more of the following reasons:

1. For the birth of a son or daughter, and to bond with the newborn child
2. For the placement with the employee of a child for adoption or foster care, and to bond with that child
3. To care for an immediate family member (spouse, child, or parent – but not a parent “in law”) with a serious health condition
4. To take medical leave when the employee is unable to work because of a serious health condition
5. For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces

Question 129

Moving an employee’s job during leave time

[family leave time (FMLA)]

Answer 129

Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault” attendance policy.

Question 130

Proving health condition

[family leave time (FMLA)]

Answer 130

An employer may require that the need for leave for a serious health condition of the employee or the employee’s immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

Question 131

Asserting rights under FMLA

[family leave time (FMLA)]

Answer 131

Generally, employees seeking to use FMLA leave are required to provide a 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable

1. If leave is foreseeable less than 30 days in advance, the employee must provide notice as soon as practicable – generally, either the same or next business day
2. When the need for leave is not foreseeable, the employee must provide notice to the employer as soon as practicable under the facts and circumstances of that case.
3. Employees must provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. Depending on the situation, such information may include that the employee is incapacitated due to pregnancy, has been hospitalized overnight, is unable to perform the functions of the job, and/or that the employee or employee’s qualifying family member is under the continuing care of a health care provider
4. When an employee seeks leave for an FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave, however, due to a FMLA-qualifying reason for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for the leave or the need for FMLA leave

Question 132

Remedies

[family leave time (FMLA)]

Answer 132

Remedies under the FMLA are modeled after the FLSA. Generally, an employee can bring a private action against their employer to recover the following:

1. Lost wages, salary, benefits, or other compensation;
2. Compensatory damages (actual monetary losses such as the cost of health care or expenses for up to 12 weeks);
3. Liquidated damages (only if the employer’s violation was in bad faith);
4. Equitable relief;
5. Court costs; and
6. Attorney’s fees

Question 133

Statute of limitations for an employee to bring an FMLA

[family leave time (FMLA)]

Answer 133

generally it is 2 years; 3 years if willful

Question 134

Intermittent leave provisions

[family leave time (FMLA)]

Answer 134

If an employee is taking leave intermittently, that means her leave can last longer than 12 weeks. Note 1 on p. 704 of the text emphasizes that the employer does not have an “undue hardship” defense under the FMLA as it does under the ADA.

Remember that the undue hardship defense under the FMLA boils down to the cost to the employer. FMLA leave is unpaid.

Question 135

The Federal Employee Paid Leave Act of 2019

[family leave time (FMLA)]

Answer 135

1. It was signed into law in December 2019
2. It becomes effective on October 1, 2020
3. The Office of Personnel Management has not yet issued final regulations implementing the statue so some of the details are still fuzzy (specifically, which federal workers qualify)
4. The statute provides up to 12 weeks of paid leave time due to the birth/adoption or foster of a new child

Question 136

Families First Coronavirus Response Act

[family leave time (FMLA)]

Answer 136

1. It was signed into law March 18, 2020
2. It becomes effective no later than April 2, 2020
3. It expires December 31, 2020
4. It generally applies to employers with more than 49 employees but less than 500 total employees (although employers with less than 50 employees may have to comply with return to work provisions but not paid provisions)
5. It generally requires covered employers to provide 12 weeks of potentially job-protected paid leave (the first 10 days are generally unpaid although it may be paid by other relief – any accumulated sick leave)
   f. After the first 10 days, you must compensate employees in an amount that is not less than 2/3 of the employee’s regular wage. (These wages are capped at $200 per day or $10,000 total.)
   g. The leave only applies to employees who are responding to quarantine requirements. It is not available for employees who are able to telework.

Question 137

General background/purpose of USERRA

[military leave time (USERRA)]

Answer 137

In 1994, Congress enacted the Uniform Services Employment and reemployment Rights Act of 1994 (USERRA) to address the needs of the non-career, full-time enlisted and officer personnel and those serving in the reserves.

Question 138

Application of USERRA to public/private entities

[military leave time (USERRA)]

Answer 138

1. Applies to the federal government – Sec. 4304(4)(A)(ii)
2. Applies to state governments – Sec. 4303(4)(A)(iii)
3. Applies to federal contractors
4. Applies to private employers (no small business exception)

Question 139

Employer definition

[military leave time (USERRA)]

Answer 139

The term employer means any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities

Question 140

Protected Class

[military leave time (USERRA)]

Answer 140

Individuals who have been absent from work because of “service in the uniformed services” and who have been separated from service under honorable conditions

Question 141

Definition of “uniformed services”

[military leave time (USERRA)]

Answer 141

It means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency

Question 142

Definition of “service in the uniformed services”

[military leave time (USERRA)]

Answer 142

The performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32

Question 143

3 primary goals of USERRA

[military leave time (USERRA)]

Answer 143

Sec. 4301: intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services:”

1. Are not disadvantaged in their civilian careers because of their service (Sec. 4316-4318)
2. Are promptly reemployed in their civilian jobs upon their return from duty (Sec. 4312-4315)
3. Are not discriminated against in employment based on past, present, or future military service (Sec. 4311)

Question 144

Eligible employees

[military leave time (USERRA)]

Answer 144

Sec. 4312: Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if—

1. The person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person’s employer; and
2. The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years

Question 145

Notice an employee must give if the length of military service is less than 31 days

[military leave time (USERRA)]

Answer 145

Sec. 4312(e)(1)(A): the employee must report to her employer by the beginning of the first full regularly scheduled work period on the first full calendar day that begins at least 8 hours after the individual returns home; or, if that is unreasonable, through no fault of the individual, as soon as possible

Question 146

Notice an employee must give if the length of service was between 31-180 days

[military leave time (USERRA)]

Answer 146

Sec. 4312(e)(1)(C): the employee must submit an application for reemployment with the employer not later than 14 days after the completing of the period of service; or, if that is impossible or unreasonable, through no fault of the individual, the next full calendar day when submission of such application becomes possible

Question 147

Notice an employee must give if the length of service was more than 180 days

[military leave time (USERRA)]

Answer 147

By submitting an application for reemployment with the employer not later than 90 days after the completion of the period of service

Question 148

Reinstatement if leave was less than 91 days

[military leave time (USERRA)]

Answer 148

1. If less than 91 days: shall be promptly reemployed in the position of employment in which the person would have been employed if the continuous employment of such person had not been interrupted by such service or
2. (B) In the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in the above paragraph after reasonable efforts by the employer to qualify the person

Question 149

Reinstatement if leave was more than 90 days

[military leave time (USERRA)]

Answer 149

(A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status, and pay, the duties of which the person is qualified to perform; or

(B) in the position of employment in which the person was employed on the date of commencement of the service in the uniformed services, or a position of like seniority, status, and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position in the above paragraph (A) after reasonable efforts by the employer to qualify the person.

Question 150

Effect of reinstatement provisions regarding promotions during leave time

[military leave time (USERRA)]

Answer 150

Note these above provisions mean if an employee was eligible for a promotion during the time they left, they should return to the promoted position

Question 151

Reinstatement exceptions

[military leave time (USERRA)]

Answer 151

1. The employer’s circumstances have so changed as to make such reemployment impossible or unreasonable
2. In the case of a person no longer qualified despite the employer’s efforts at requalification, such employment would impose an undue hardship on the employer or
3. The employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period

Question 152

Firing an employee after reinstatement

[military leave time (USERRA)]

Answer 152

A person who is reemployed by an employer under this chapter shall not be discharged from such employment except for cause—

1. Within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days; or
2. Within 180 days after the date of such reemployment, if the person’s period of service before the reemployment was more than 30 days but less than 181 days

Question 153

Benefits upon reinstatement

[military leave time (USERRA)]

Answer 153

1. Sec. 4316: all seniority and seniority-like rights/benefits
2. Sec. 4317: COBRA coverage for both the employee and their eligible dependents for the lesser of 24 months from the date on which the employee’s absence begins, or the day after the date on which the employee fails to apply for or return to employment. Employer is permitted to charge the employee up to 102% of the premium (employer and employee’s portion).
3. Sec. 4318: ERISA-covered pension benefit plans, church plans, and state or federal laws governing pension benefits for government employees

Question 154

goal of preventing discrimination

[military leave time (USERRA)]

Answer 154

Specifically, it forbids discrimination in

1. Initial employment
2. Reemployment
3. Retention in employment
4. Promotion
5. Any benefit of employment
6. Retaliation

Question 155

burden of proof in USERRA discrimination cases

[military leave time (USERRA)]

Answer 155

1. An employer will be found to have discriminated against the service member if his/her service, application for service, or obligation for service was “a motivating factor” in the adverse decision
2. UNLESS the employer can prove that it would have taken the same action in the absence of the service, application for service, or obligation for service

Question 156

Enforcement of USERRA

[military leave time (USERRA)]

Answer 156

A private employee can elect to pursue one of two avenues:

1. Sec. 4322: the employee can file a complaint with the Secretary of Labor, who is then required to investigate. If the Secretary determines a violation has occurred, the Secretary can refer the case to the Attorney General, who may commence an action on behalf of the complainant; OR
2. Sec. 4322(a)(3): the employee can file a lawsuit in federal district court. Unlike under Title VII, the ADA, the ADEA, and NLRA, the administrative requirements under USERRA are optional

Question 157

Escalator Principle

[military leave time (USERRA)]

Answer 157

(illustrated in the Rogers case)

1. Based on the language of § 4313 and the Rogers case, the escalator principle only applies to seniority benefits
2. USERRA requires employers, with respect to rights and benefits not determined by seniority, to treat employees taking military leave, equally, but not preferentially, in relation to peer employees taking comparable non-military leaves generally provided under the employer’s contract, policy, practice, or plan. § 4316(b)(1)
3. In Rogers – plaintiffs wanted unscheduled overtime and extra leave time they would have earned if they were not absent due to military leave – court held that unscheduled overtime, lost straight time & missed upgrade opportunities are non-seniority rights and benefits that are not subject to the escalator principle

Question 158

Historical background: 2 historical approaches to resolving worker injuries

[workers compensation]

Answer 158

1. Fellow Servant Rule
   - Common law doctrine that originated in England. The fellow-servant rule said simply that worker who are hurt by a coworker – a fellow servant – should blame the responsible coworker, not their employer.
   - The doctrine first appeared in a U.S. decision in 1842, and it had a powerful effect on American law for the next century.
2. Employer Liability Acts
   - Main purpose was to shift responsibility mainly to the employee for workplace injuries unless the employee could establish that the employer was negligent. Many defenses were available to the employer (such as contributory negligence and assumption of the risk) and the result was that IF an employee was successful, the suit involved delays and large amounts of attorney’s fees

Question 159

General overview of workers comp

[workers compensation]

Answer 159

1. All states have workers’ compensation laws which provide for payment to workers for injuries suffered on-the-job
2. Most of these laws provide employees with the exclusive remedy to be compensated by their employer for work-related injuries or occupational disease
3. If the injury occurs during the employee’s personal time, the injury is not covered
4. The burden is on the injured worker to show that the accidental injury arose out of employment

Question 160

How workers comp works financially

[workers compensation]

Answer 160

1. In most states, employers are required to purchase insurance for their workers from approved workers’ compensation insurance carriers;
2. The monies paid for a compensable workers’ compensation injury is often the sole source of support for disabled workers;
3. Monies are awarded to injured employees under a strict liability system and do not consider fault in making an award

Question 161

Most common types of workers compensation benefits

[workers compensation]

Answer 161

1. Medical expenses (normally entirely compensable without any deductible to employee)
2. Lost wages (aka cash benefits) - unlike medical expenses, they are subject to statutory caps

Question 162

Types of lost wages available as workers compensation benefits

[workers compensation]

Answer 162

Most states provide for the following benefits

1. Temporary Disability Benefits
   - Temporary Total Disability and
   - Temporary Partial Disability Benefits
2. Permanent Disability Benefits
3. Medical Rehabilitation (physical therapy)
4. Vocational Rehabilitation (payments made to retrain the worker for a different wage earning position
5. Death Benefits (paid to spouses or domestic partners and dependents of workers who die as a result of an on-the-job event
6. Some states permit workers to recover for mental or emotional stress injuries

Question 163

Types of permanent disability benefits available as lost wages under most workers compensation statutes

[workers compensation]

Answer 163

Permanent partial benefits: there are two ways of calculating
1. Scheduled Disabilities are those for the loss of a particular part of the body, such as a leg or an arm
2. Unscheduled Disabilities are those which are not included in the schedule and usually involve the trunk (back), internal organs, nervous system, or other part of the body not covered by the schedule.
—
Permanent total benefits: An employee is eligible for Permanent Total Disability Benefits if adjudged unable to return to any form of income-generating employment. Such benefits are paid until the employee is eligible for full benefits from Social Security’s OAB Program. T.C.A. § 50-6-207(4)(A)(1)

Question 164

Analytical framework to determine coverage of workers compensation benefits

[workers compensation]

Answer 164

1. The first question to ask when determining if an injured person is covered by a state’s statute: employee or an independent contractor?
   - Most employees, but not intendent contractors, are entitled to workers’ compensation benefits
2. Second question: is the worker a “covered employee” under the statute?
   - Under the laws of most states, the following employees are not covered by workers’ compensation: owners of the business; casual laborer; and volunteers
3. Third question: which employers are bound by the statute
   - Tennessee: employer is defined as an individual, group, business, etc. employing at least 5 people (unless it is a mining business, and then one employee is sufficient)

Question 165

Federal Employment Compensation – Four Main Statutes

[workers compensation]

Answer 165

1. Federal Employer’s Liability and Compensation Act (FECA) – provides for federal workers’ compensation benefits for the three million federal civilian and postal workers who work for the federal government
2. Federal Employment Liability Act (FELA) – this statute protects railroad employees who are entitled to benefits when the railroad employer causes the employee’s injury or death
3. Merchant Marine Act of 1920 – injured seamen may obtain damages from their employers for the negligence of the ship owner, the captain, or crew members
4. Longshore and Harbor Workers’ Compensation Act – provides compensation for disability or death of an employee for injuries to an employee occurring upon navigable waters or adjoining areas of the navigable waters of U.S.

Question 166

The workers compensation bargain

[workers compensation]

Answer 166

1. Broad Coverage for Employees
   - Employer has automatic liability for workplace injuries & diseases
   - No defenses for contributory negligence, assumption of risk, or fellow servant rule
2. Lower Benefit Levels for Injuries
   - Punitive damages not available
   - Amount of compensatory benefits is set by statute and these amounts are usually lower than amounts a jury could award
   - It is described as a no-fault system which benefits both employees and employers. Employers have limited liability for work-related injuries (they cannot be sued under tort law), and employees no longer have to prove that an employer’s negligence caused the injury.
3. Incentives resulting from the WC Bargain

Question 167

Covered/Compensable Injuries and Diseases

[workers compensation]

Answer 167

Most state statutes (including Tennessee) require workers who request workers compensation benefits to satisfy a four-step test:

1. They have sustained a personal injury
2. That resulted from an accident or disease
3. It arose out of their employment (AOE test) and
4. During the course of their employment (COE test)

Question 168

Occupational diseases

[workers compensation]

Answer 168

These are diseases that arise out of or are caused by conditions peculiar to the employee’s work. Examples:
- Black lung disease
- Carpal Tunnel Syndrome (and other repetitive-motion type injuries)
- Hearing Loss (when around noisy operations)
- Asbestosis
- Silicosis
- Liver Cancer (generally results from exposure to vinyl chloride common in plastics manufacturing
- Bladder Cancer (found in employment exposed to benzidine; common in plastics and chemical manufacturing)
—
Most problematic diseases and injuries:
A. Workplace stress
B. Carpel tunnel
C. Back disorders
D. Respiratory diseases
E. Heart disease
F. Cancer
- These are problematic because many of these injuries/diseases are caused by a combination of hereditary factors, lifestyle choices, and workplace responsibilities. Thus. Causation may be difficult to assess depending on the statute.
- Also, employees with some of these diseases may have subjective complaints/symptoms that are difficult to document with objective medical tests (e.g., workplace stress and back disorders)

Question 169

Temporary total disability

[workers compensation]

Answer 169

1. If an employee is injured at work and cannot perform any work for a period of time while they recover, this type of cash benefit provides money to help replace their lost income on a temporary basis
2. Temporary total benefits are generally two-thirds of an employee’s average weekly wage, up to a weekly maximum and with a guaranteed minimum in most states
3. Temporary disability benefits are not taxed
4. Generally, an injured employee collects temporary total disability benefits until one of the following occurs:
   A. Their doctor says they can return to work
   B. Their doctor says the employee has some permanent disability and is no longer expected to improve (reached maximum medical improvement)
   C. It has been two years since they started to collect temporary disability benefits

Question 170

Temporary partial benefits

[workers compensation]

Answer 170

1. Temporary partial benefits are paid to an injured employee if they return to work and due to their disability are unable to earn the equivalent amount they were earning prior to their disability
2. This most commonly occurs when an employee is either working light duty in a position that pays less than their normal job, OR employee can only work part-time at their usual position rather than full-time as they did prior to their injury
3. Temporary partial disability benefits are generally two-thirds of the difference between the average amount the worker would ear in the pre-injury job and the net amount he/she earns in the light duty/part-time job

Question 171

Permanent partial disability

[workers compensation]

Answer 171

A permanent partial disability (PPD) claim is the most common type of workers compensation case, making up over half of all workers comp claims nationwide. These types of disabilities can be caused by either ran injury or an occupational disease, and they cause some form of permanent impairment that makes a worker unable to perform at their full capacity.

Workers can qualify for PPD if they have any one of the following:

1. The complete or partial loss of a part of the body
2. The complete or partial loss of use of a part of the body
3. The partial loss of use of the body as a whole

Question 172

Scheduled vs nonscheduled injuries

[workers compensation]

Answer 172

Scheduled injures usually include the upper and lower extremities (such as arms, hands, fingers, toes, feet) and may also include eyes. Most also include the loss of hearing in one or both ears. The schedules are specific enough that they separately identify the individual fingers or toes or differentiate between the loss of a dominant or nondominant hand. These schedules are commonly called meat charts

Examples of nonscheduled disability include: injures that result in back impairments, injuries to internal organs and the head, and most occupational illnesses

Question 173

Permanent total disability

[workers compensation]

Answer 173

1. This award is usually given in circumstances when a worker sustains a work-related injury or disease and can no longer perform sustained employment in their own or any other occupation for which they are suited by training, education, or experience
2. In some states, certain losses automatically result in a finding of PTD. These conditions often include: loss of two eyes, arms, or legs.
3. Benefits are usually calculated at 66 2/3% of the worker’s average weekly wage (pre-injury) and is subject to statutory minimum and maximum limits
4. These benefits usually are paid for the duration of total disability (which usually is for the life of the worker), until they are eligible for full social security benefits, or until they have received the maximum payment (whichever is earlier)
5. Odd Lot Test (Guyton v. Irving Jensen Co., p. 993)

Question 174

Odd lot test

[workers compensation]

Answer 174

Under the odd lot test, an injured employee is entitled to total, permanent disability compensation if he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. This decision is made after reviewing the following factors:
1. The evidence of the worker’s physical impairment
2. Employee’s mental capacity
3. Education
4. Training
—
In order to qualify as an odd lot, the employee’s burden of proof is to prove that he is unable to perform his current job.
- This burden shifts to the employer to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to the worker’s residence.
- If the employer fails to meet its burden, the employee generally is entitled to total, permanent disability compensation

Question 175

How widespread is adoption of the odd lot doctrine

[workers compensation]

Answer 175

Almost every jurisdiction (including TN) recognizes the odd lot doctrine

Question 176

Death benefits - 3 takeaways

[workers compensation]

Answer 176

1. Some states have statutes in which compensation is paid to your surviving dependents if your compensable injury results in your death
2. As with both temporary and permanent disability benefits, the maximum benefit payable is based on the date the compensable injury occurred
3. Death benefits are payable biweekly to your surviving spouse until the amount due has been paid in full; however, if your spouse remarries, then your spouse’s benefit ceases to be paid. A benefit is also payable to any surviving dependents until each dependent reaches his 18th birthday (or 22nd birthday if enrolled in a recognized educational institution), regardless of whether your spouse remarries
4. If no surviving dependents, your estate is eligible for a payment of $20,000 plus reimbursement for funeral and burial expense actually incurred.

Question 177

Medical benefits overview + what is included in compensable medical benefits

[workers compensation]

Answer 177

In addition to the various types of cash benefits to which an injured worker may be entitled, if a covered employee has suffered an accidental injury, or compensable occupational disease, the employer or its insurer also shall be responsible for medical benefits. Each state defines what is a compensable medical benefit, and these can include:

1. Medical, surgical or other attendance or treatment (usually without a deductible or cost to the worker)
2. Nursing services
3. Medicine
4. Crutches and other apparatus
5. Artificial arms, feet, hands, legs, and other prosthetic appliances

Question 178

2 types of rehabilitation benefits

[workers compensation]

Answer 178

1. Medical Rehabilitation: This is covered in most states if ordered by the employee’s physician and includes Functional Capacity Evaluations (FCEs); Work Conditioning Programs; Ergonomic/Job Site Assessment, and Traditional physical therapy.
2. Vocational Rehabilitation: This benefit provides various services to help employees return to their previous employment status, or to a position substantially similar to that prior to their injury. Various examples of vocational services include: vocational counseling, assessment, evaluation, job development and/or placement, vocational rehabilitation, plan monitoring, plan development

Question 179

Attorneys fees

[workers compensation]

Answer 179

In Tennessee, attorney fees for claimants are limited by statute to 20%, with certain larger fees subject to court approval. (T.C.A. § 50-6-226).