US Employment Law and Regulations Flashcards
Highest law in the country
The Constitution
Actions passed by legislative bodies
Statutes
Proposed/enforced by administrative agencies, reflect how laws will be implemented
Regulations
Interpret how laws and regulations will be enforced, through interpretations, policy statements, letters, etc. to explain/supplement regulations and statutes
Agency Guidelines
Directive by Chief Executive of government unit, telling how it will act/interact with its community
Executive Orders
Based on court decisions, recognized on federal level and nearly all states
Common Law
Covers an org against claims by employees, former employees, and candidates alleging their legal rights in the employment relationship have been violated
Employment Practices Liability Insurance (EPLI)
Prohibits discrimination against job applicants based on national origin or citizenship, and at the same time, establishes penalties for hiring undocumented workers
Immigrant Reform and Control Act (IRCA)
Immigrant Visa for which employers do not need to test US labor market to determine there are no minimally qualified US workers for these jobs
EB-1 (Priority workers)
Immigrant Visa for which employers must test the US labor market through a labor certification application to determine whether there are minimally qualified US workers for the position. Foreign nationals are required to have a job offer and a master’s degree
EB-2
Immigrant Visa for which employers are required to complete the labor certification process, and job requires a bachelor’s degree or skilled workers of 2+ years’ experience
EB-3
Permitted to enter US to engage in business activities, but may not be gainfully employed by a US org
Business Visitor, B-1
Temporary visa reserved for professionals who come to US for limited time. Must have baccalaureate degree that is required for the position, and must be paid same wage rates of US workers in the same role
H-1B
Aliens working for foreign employer transferred to US parent, subsidiary, or affiliate org. Must have held specialized knowledge, management, or exec position 1 of the last 3 years
L-1 (Intracompany Transferee)
Aliens in countries with which US has commerce, navigation, and investment treaties. Come to the US to work for companies investing or trading in the US.
E-1 and E-2 (Treaty Investors and Traders)
Visa specific to Australian citizens and applies to similar positions as H-1B
E-3
Visa for full time university, college, high school, or elementary school students who study at a school approved by the USCIS
F-1
Citizens of Canada or Mexico whose occupations appear on North American Free Trade Agreement schedule and have necessary education/experience
TN
Visa for persons of extraordinary ability in the arts, sciences, education, business, or athletics with sustained national/international acclaim
O Visas
Cultural exchange visitors who come to the US to work temporarily
Q Visas
Requirements to petition for an employee’s H-1B Visa
- before initiating application process, org must make good faith attempts to recruit US residents
- H-1B nonimmigrants may be admitted for up to 3 year period
What is true of hiring Deferred Action or Childhood Arrivals (DACA) employees?
if employee’s employment authorization documentation expires, org can no longer employ
Employment At-Will
Employers have the right at any time, with or without prior notice, to hire, fire, demote, or promote whomever they choose for any or no reason. Employees also have the right to quit a job at any time, for any reason, with or without notice.
Regulates use and collection of consumer credit information to protect privacy of background info and ensure its accuracy. Calls for full disclosure of consumer reports so that individuals can dispute.
Fair Credit Reporting Act (FCRA)
Fair Credit Reporting Act (FCRA) provisions
- written notice and authorization required
- pre-adverse action - applicant must be provided with copy of report and reasonable time to present evidence to challenge
- adverse action - must give notice that such action has been taken
- certifications to credit bureaus - require employers to certify they are in compliance with FCRA
Amends the FCRA - employer who uses a 3rd party to conduct investigation no longer needs to follow consent and disclosure requirement before commencing investigation if it involves suspected misconduct, violation of law, or violation of pre-written employer policy
Fair and Accurate Credit Transactions Act (FACT Act)
People who are covered under a particular federal, state, or local antidiscrimination law
Protected Class
Applicant or employee is treated differently because of their membership of a protected class
Disparate Treatment
When a policy that appears to be neutral has a discriminatory effect. Usually unintentional, results in unequal consequences
Disparate Impact
EEOC Complaint Process
- EEOC charge filed
- EEOC notifies respondent of charge via letter
- EEOC sends respondent copy of the charge
- Employer is requested to submit a written response to the charge and/or EEOC’s request for info. May schedule a fact-finding conference
- EEOC reviews charge and assesses for reasonable cause
What happens if EEOC finds reasonable cause
EEOC attempts conciliation, respondent is required to provide remedies to settle. Result is settled or may go to litigation.
What happens if EEOC does not make a determination
Charging party has right to request right-to-sue letter after 180 days, then must file suit in court within 90 days.
What happens if EEOC does not find reasonable cause
EEOC notifies both parties, charging party is notified of right to sue, and EEOC involvement ends.
Passed to bring about equality in hiring, transfers, promotions, compensation, access to training, etc.
Title VII of the Civil Rights Act
Title VII provisions
- in recruiting, hiring, and advancement, job requirements must be uniformly and consistently applied to persons of all races
- employees who belong to a protected class cannot be segregated by physically isolating from other employees or customer contact
- harassment/hostile work environment unlawful
- compensation equality
Amended Title VII and gave the EEOC authority to back up its admin findings and conduct its own enforcement litigation
Equal Employment Opportunity Act
Amended Title VII to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions, requiring employers to treat the same as any other temporary disibility
Pregnancy Discrimination Act
Under the Uniform Guidelines on Employee Selection Procedures, when does adverse impact occur?
When the selection rate for an employment decision works to the disadvantage of a protected class - selection rate for the protected class is less than 80% of the rate for the class with the highest selection rate
What employers can do when the 80% rule is violated
- analyze data more rigorously to determine adverse impact
- use another procedure demonstrated to have lesser adverse impact
- modify the procedure to eliminate adverse impact
- validate the job-relatedness of the selection procedure
- justify the procedure as business necessity
Case that set the standard for when an employer establishes an employment practice, must be able to justify its actions as being job-related and consistent with a business necessity. Practices, procedures, and tests that appear neutral at face and intent but result in a discriminatory effect on a protected class without that justification are illegal.
Griggs v. Duke Power
One of the first cases to apply the sex discrimination provision of Title VII to employment decisions. An employer may not, in the absence of business necessity, refuse to hire women with preschool aged children while hiring men with such children.
Phillips v. Martin Marietta Corp
Criteria for disparate treatment established by the McDonnell Douglas v. Green case
- belong to a protected class under Title VII
- applied to a job for which employer was seeking applicants
- were rejected despite being qualified
- were rejected and the employer kept looking for people with their qualifications
Allows employees who win a discrimination case to collect punitive and compensatory damages
Civil Rights Act of 1991
Federal contract or subcontract of >$150,000 required to take affirmative action to employ and advance employment in specific categories of veterans, and prohibits discrimination of such veterans
Vietnam Era Veterans Readjustment Assistance Act
Prohibits discrimination in every aspect of employment against employees and applicants age 40 and over
Age Discrimination in Employment Act
Amended the Age Discrimination in Employment Act to prohibit discrimination in employee benefits and waivers of claims for employee’s right to sue
Older Workers Benefit Protection Act
Prohibits discrimination against a qualified individual with a disability because of their disability. Applies to employers with 15 or more employees, but not the federal government as an employer.
Americans with Disabilities Act (ADA)
Primary job duties a qualified individual must be able to perform, either with or without reasonable accommodation
Essential Functions
Expands interpretation, making much easier for individuals to demonstrate that they meet the definition of disability
ADA Amendments Act
Modifying a job application process, work environment, or circumstances job is usually performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions
Reasonable Accommodation
When employers are not required to take reasonable accommodation actions
If the the accommodation will cause the employer undue hardship
5 Steps to identify a reasonable accommodation
- individual requests accommodation
- identify barriers to performance of essential job functions for individual
- identify possible accommodations helpful in overcoming the barriers
- assess the reasonableness of the accommodations - including whether they are the employer’s responsibility and if they impose undue hardship
- choose the accommodation appropriate for the individual
Employee is forced to choose between giving in to superior’s sexual demands and forfeiting a benefit
Quid Pro Quo Harassment
If supervisor harassment results in tangible adverse actions…
The employer is always liable
Employers are legally responsible for the discriminatory acts of their supervisors and managers
Vicarious Liability
Prohibits discrimination against individuals on the basis of their genetic info in both employment and health insurance
Genetic Information Non-Discrimination Act
Establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full and part time workers in private sector and in federal, state, and local governments
Fair Labor Standards Act (FLSA)
Types of individuals employers have no obligations to under FLSA
Self-employed independent contractors
In order for an employee to be considered Exempt:
- minimum salary ($684/week)
- paid on a salary basis without improper deductions
- primary duties in exec, admin, professional, or outside sales
The Safe Harbor provision prevents an employer from losing an overtime exemption for improper pay deductions where the employer:
- has a clearly communicated policy that prohibits improper pay deductions and includes complaint mechanism
- reimburses employees for any improper deductions
- makes good faith to comply in the future
Those who perform work involving repetitive operations with their hands, physical skill, and energy
Blue-Collar Workers
What type of workers will not be exempt, no matter how highly they are compensated
Blue-Collar Workers
Essential in determining FLSA status
case-by-case analysis of job descriptions
Overtime Pay
1.5 times the employee’s regular rate of pay for hours exceeding 40 in any workweek, includes base pay and nondiscretionary bonuses, shift premiums, production bonuses, and commissions
Workweek
Any fixed, recurring period of 168 consecutive hours, may begin on any day of the week
Child Labor provisions
FLSA restricts hours and conditions of employment for minors, and protects children under 18 from oppressive conditions
General rule when state and federal laws/regulations differ
Follow that which most benefits the employee
If employer restricts an employees activities and does not allow any personal business, then hours are included as time worked
Portal to Portal Act
Not paid as work time under travel time guidelines
Commuting time and overnight travel where employee is a passenger outside of their regular work hours
Considered paid work time under travel time guidelines
Travel in responses to emergency outside of regular work hours, workday travel, and out of town travel during the course of a day
Amendment to FLSA, prohibits unequal pay for substantially equal work performed by men and women
Equal Pay Act
Establishes minimum standards to ensure employee retirement plans are set up and maintained in a fair and financially sound manner
Employee Retirement Income Security Act
Insures payment of certain pension plan benefits in the event a private-sector defined benefit pension plan lacks sufficient funds to pay the promised benefit
Pension Benefit Guaranty Corp
Fiduciary requirements under the Employee Retirement Income Security Act (ERISA)
Plan must be operated for exclusive benefit of the participant and their beneficiaries - invested as any “prudent person” would
Requires administrators of 401K plans to provide notice to affected participants and beneficiaries minimum 30 and maximum 60 days in advance of a blackout period
Sarbanes-Oxley Act (SOX)
The statute of limitations (180 days) resets as the employer issues each allegedly discriminatory paycheck, meaning employees and their families/heirs could file discrimination lawsuit regarding benefits such as salary-based defined benefit/defined contribution retirement plan payouts and salary-based life insurance proceeds
Lilly Ledbetter Fair Pay Act
Applies to federal contractors with construction projects in excess of $2,000 - required to pay laborers no less than locally prevailing wages and fringe benefits
Davis-Bacon Act
Applies to manufacturers and suppliers of goods for federal contracts >$15,000 - establishes minimum wage, max hours, and health and safety standards
Walsh-Healy Public Contractors Act
Requires contractors on prime contracts (with the project owner) >$2,500 to pay service employees no less than wage rates and fringe benefits found in locality of rates in previous contractor’s collective bargaining agreement
McNamara-O’Hara Service Contract Act
Provides individuals and their dependents who otherwise would lose their coverage due to a qualifying event with an opportunity to continue receiving health-care coverage under the employer’s group health plan at the individual’s expense
COBRA (Consolidate Omnibus Budget Reconciliation Act)
Months of COBRA coverage available for termination of employee for any reason other than gross misconduct
18 months
Months of COBRA coverage available for reduction in hours
18
Months of COBRA coverage available if the employee is disabled at time of termination/reduction
29
Months of COBRA coverage available in the case of a divorce or death of the employed spouse
36
Months of COBRA coverage available when a dependent child loses eligibility status
36
All related qualified beneficiaries are entitled to purchase 29 months of coverage if any one is disabled during the first 60 days of coverage. Definition of qualified beneficiaries modified to include children born or placed for adoption with a covered employee during COBRA coverage
Amendment of COBRA by HIPAA
Entitles a covered employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child or the serious health condition of the employee or immediate family member. Employee must be returned to the same job or one with equivalent status, pay, and benefits
Family & Medical Leave Act (FMLA)
To be eligible for FMLA leave, what must be true of the employee?
Must have worked at least 12 months for the employer, for at least 1,250 hours, and at a site within 75 miles of which 50 or more employees work
Provided the extingency leave and military caregiver leave as qualifying FMLA events
National Defense Authorization Act (NDAA)
Enacted to protect employment, reemployment, and retention rights of persons who serve/have served in the uniform services. Applies to virtually all employers and prohibits discrimination of service members.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Key provisions of Patient Protection and Affordable Care Act (PPACA) (Obamacare)
- requires employers with >50 FT employees to offer minimum essential health coverage
- eliminates lifetime maximum benefit limits on essential health benefits
- eliminates pre-existing condition limitations
- provides first dollar coverage for preventive care services
- requires coverage of employee’s children until age 26
- uniform explanation of coverage
- prohibits annual limits on essential health benefits
- requires break time for nursing mothers
US Supreme Court case that denied medicaid expansion and held the individual mandate in place
National Federation of Independent Business v. Sebelius
Defined marriage as union of 1 man and woman, permitted states not to recognize same sex marriages
Defense of Marriage Act (DOMA)
US v Windsor and Obergefell V Hodges cases rulings
ruled Defense of Marriage Act (DOMA) unconstitutional
Established first national policy for workplace safety and health - requires employers to provide safe and healthful working conditions for employees
Occupational Safety and Health (OSH) Act
Employers required to provide place of employment free from recognized hazards that are likely to cause physical harm or death of employees
General Duty Clause
Employer responsibilities under OSHA
- display OSHA posters
- notify any employee exposed to hazardous agents
- maintain accurate records of work-related deaths, injuries, and illness
- correct cited violations within period prescribed by OSHA
- allow employees to refuse abnormally dangerous work
- provide employees PPE
- provide medical surveillance and training of OSHA standards
What is required of orgs with over 10 employees when an occupational injury or illness occurs
Must report all occupational injuries and illness beyond first aid within 24 hours of learning of the event, using specific OSHA forms
Federal contractors with contracts of $100K or more as well as recipients of grants from the federal government must follow requirements to certify they are maintaining a drug-free workplace
Drug-Free Workplace Act
Requirements of the Drug Free Workplace Act
- developing a policy prohibiting unlawful manufacturing, distribution, possession, or use of controlled substances in the workplace
- specifying actions that will be taken against those who violate
- establishing drug-awareness program
- notifying federal contracting agency within 10 days of any employee conviction of a criminal drug offense in the workplace
- imposing a sanction on the convicted employee or requiring satisfactory participation in rehabilitation program
In what case may an employer apply for a temporary variance of standard to OSHA
Due to the unavailability of materials, equipment, or personnel needed to make the necessary changes
Protects and encourages the growth of the union movement, established worker’s rights to organize and bargain collectively with employers
National Labor Relations Act
Amended the NLRA and imposed restrictions and requirements on unions
Labor Management Relations Act (LMRA)
Further amended NLRA, imposed regulations on internal union affairs and the relationship between union officials and members
Labor Management Reporting and Disclosure Act (LMRDA)
Who does the NLRA apply to
all nonsupervisory employees of employers participating in interstate commerce (except governments, religious schools, agricultural, railroads, and airlines)
Created to enforce self organization rights and investigate charges of unfair labor practices
National Labor Relations Board (NLRB)
NLRA’s covered activities
- objecting to harassment
- refusing to work under dangerous conditions
- honoring a picket line, refusing voluntary on-call work, filing grievances, or protesting discrimination
- complaining about wages or hours of work
- petitioning the employer for resolution of some issue
Dealt with the right of a unionized employee to have another person present during certain investigatory interviews
NLRB v. Weingarten
Under Weingarten rights, unionized employees have the right to have a union rep present under what conditions
- management must inform rep of the subject of the interview
- rep must be allowed to speak privately with employee before the interview
- rep can interrupt to clarify a question or object to confusing or intimidating tactics
- rep cannot tell the employee what to say, but may advise employee on how to answer a question
- rep can add info to support employee’s case at the end of the interview
- applies only to an investigative interview
- rep must be affiliated with with union that represents the employee
Are Weingarten Rights currently applicable to non-union employees?
No
Case in which supreme court ruled that NLRA covers rights only on employees, not on unions or their non-employee organizers
Lechmere Inc v. NLRB
Prevents most private employers from requiring applicants or employees to take a polygraph test for pre-employment screening or during the course of employment
Employee Polygraph Protection Act (EPPA)
Requires a 60-days’ written notice given to affected employees if plant is to close or mass layoffs will occur
Worker Adjustment and Retraining Notification Act (WARN)
In what cases WARN applies
- employer employs 100 or more FT employees or FT and PT employees who work at least 4,000 hrs/week at all employment sites
- mass layoff will result in employment loss at site during any 30-day period of 500 or more employees, or 50-499 employees if they make up 33% of active workforce
WARN Act exceptions
- Faltering Company - has actively sought new capital in order to stay open, and providing notice will ruin the opportunity
- Unforeseeable Business Circumstances
- Natural Disaster
Unlawful to intercept messages in transmission, access stored info on electronic communication services, or disclose any of this info
Electronic Communications Privacy Act
Best practices for compliance of Electronic Communications Privacy Act
- have carefully crafted electronic communication policy
- only monitor emails and internet activity after sent or received
- and only monitor storage if stored on employer’s own email server
What makes record retention complex
The same records are often required by more than one law, but periods of retention may vary. Always follow the longer retention period.
What HR must understand in terms of record retention
- what records must be kept under each law
- retention periods for those records
- applicability for each law
DoL protocols for changing from paper to electronic storage
- must have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of records
- must be maintained in reasonable order, in a a safe and accessible place, and so they may be readily inspected
- must be able to be readily converted into legible paper copies
- label records, secure storage, and backup copies
Includes reports and notes from investigations and interviews done at the attorney’s request, and is not subject to disclosure to the other side in a complaint
Attorney Work Product
When can an employer assert the Bona Fide Occupational Qualification (BFOQ) defense?
When a decision based upon a protected class is reasonably necessary for the individual to carry out a job function
Case that determined if sexual harassment results in a tangible employment action, then the employer is automatically liable
Faragher v. City of Boca Raton
