U.S. Employment Law & Regulations Flashcards
1
Q
Statutes
A
Statutes refer to actions passed by legislative bodies, such as Congress and state legislatures, and by local government units, such as cities and counties.
2
Q
Regulations
A
Regulations are proposed, adopted, and enforced by administrative agencies to whom government units have delegated specific rule-making authority. Regulations reflect how laws will be implemented and often have the force of law.
3
Q
Agency guidelines.
A
Administrative agencies may also issue guidelines that interpret how laws and regulations will be enforced. Such agency guidance includes agency interpretations, policy statements, letters, and advisory materials to supplement or explain regulations and statutes.
4
Q
Employment practices liability insurance (EPLI)
A
is a type of liability insurance covering an organization against claims by employees, former employees, and employment candidates alleging that their legal rights in the employment relationship have been violated.
The purpose of an EPLI policy is to protect a business against the risk of heavy financial losses resulting from employment claims and lawsuits.
EPLI is typically structured as gap insurance for the company (e.g., lawsuits not covered by general business liability insurance). It covers such things as discrimination, sexual or other forms of unlawful harassment, breach of contract, and wrongful discharge suits, which usually are not covered by general business liability insurance.
5
Q
what is a compliance audit and what is it used for
A
A compliance audit is a process where an organization is independently evaluated to ensure they are following all applicable external laws, regulations, industry standards, and internal policies, essentially verifying their adherence to set guidelines and identifying potential areas of non-compliance; it’s used to maintain regulatory compliance and mitigate risks by proactively identifying issues that could lead to legal or financial penalties.
6
Q
What is the Immigration Reform and Control Act (IRCA)
A
The Immigration Reform and Control Act (IRCA) of 1986 is designed to accomplish two somewhat divergent purposes. IRCA prohibits discrimination against job applicants on the basis of national origin or citizenship and, at the same time, establishes penalties for hiring undocumented workers, with certain exceptions.
Employers who hire someone who is not entitled to work in this country face civil and/or criminal penalties.
IRCA is enforced by U.S. Citizenship and Immigration Services (USCIS), a special branch of the Department of Homeland Security (DHS).
7
Q
what does form I-9 Verifty
A
identity and right to work in the U.S. While not required, USCIS recommends that the form be kept separate from other employee records.
8
Q
what two documents can you accept that are expired for I-9
A
Authorization Documents (Forms I-766) and Permanent Resident Cards (Forms I-551) that appear to be expired on their face, but have been extended by USCIS.
9
Q
Priority Workers: EB-1.
A
Immigrant Visa. Employers do not need to test the U.S. labor market (or file a labor certification application) to determine that there are no minimally qualified U.S. workers for these jobs.
10
Q
EB-2
A
Immigrant Visa/Second Preference
In most cases for this category, employers must test the U.S. labor market through a labor certification application to determine whether there are minimally qualified U.S. workers for the position. Foreign nationals in this category are required to have a job offer. The job must require at least a master’s degree or equivalent.
11
Q
EB-3.
A
Immigrant Visa/Third Preference
This category is for jobs that require at least a bachelor’s degree or skilled worker positions that require at least two years of training or experience. (A small number of EB-3 immigrant visas are available to unskilled workers.) Employers are required to complete the labor certification process for people in the EB-3 category.
12
Q
: EB-4
A
Immigrant Visa/ Fourth Preference
The EB-4 category is unique and caters to a diverse range of individuals. To qualify, individuals must meet specific criteria related to their unique circumstances and qualifications
13
Q
EB-5.
A
Immigrant Visa/ 5th preference
The EB-5 category is aimed at immigrant investors seeking to invest a significant amount of capital in a new commercial enterprise that creates jobs for U.S. workers. Specifically, this category is for immigrant investors who are investing $1,050,000 (or $800,000 in a targeted employment area or infrastructure project) in a new business that will boost the U.S. economy and create at least 10 full-time jobs for qualified workers.
14
Q
what is a non immigrant visa
A
Nonimmigrant visas are available to aliens who want to come to the U.S. for a temporary period of time.
15
Q
Business Visitor: B-1
A
Non Immigrant Visa
Business visitors may be permitted to enter the United States for the purpose of engaging in business activities (including but not limited to attending meetings, seminars, or conferences or negotiating contracts) but may not be gainfully employed by a U.S. organization.
16
Q
Specialty Occupation Workers: H-1B
A
non Immigrant visa
This visa is reserved for professionals (including but not limited to engineers, computer scientists, biotechnologists, university professors, marketers, and health-care professionals) who come to the U.S. for a limited amount of time. The alien must have a baccalaureate degree (a foreign equivalent or equivalent experience may also be acceptable), and the degree must be a usual requirement for the position. H-1B workers must be paid at least the same wage rates as are paid to U.S. workers who perform the same types of work or the prevailing wages in the areas of intended employment. This category is subject to yearly numerical limitations imposed by the USCIS.
17
Q
Intracompany Transferee: L-1
A
Non Immigrant Visa
Aliens who work for a foreign employer and are transferred to the U.S. to work for a parent, subsidiary, or affiliate organization qualify for L-1 visas if they have held a specialized knowledge, management, or executive position during one of the last three years before entering the U.S.
18
Q
Treaty Investors and Traders: E-1 and E-2
A
Non Immigrant Visas
These visas are reserved for aliens in countries with which the U.S. has commerce, navigation, and investment treaties. These aliens come into the U.S. to work for companies based in their home country that are investing or trading in the U.S.
19
Q
Australian Free Trade/Specialty Occupation Workers: E-3
A
This category is specific to Australian citizens and applies generally to positions very similar to those covered by the H-1B visa category.
20
Q
Students: F-1
A
Non Immigrant Visa
These visas are reserved for full-time university, college, high school, or elementary students who study at a school approved by the USCIS. Generally, prior to graduation students must not accept employment, except for on-campus employment and employment directly related to their curriculum.
21
Q
Exchange Visitors: J-1
A
non immigrant visa
J-1 visas apply to aliens in government-approved exchange visitor programs. These visas are managed by the Department of State.
22
Q
North American Free Trade Agreement (NAFTA): TN
A
nonimmigrant visa
TN visas are available only to citizens of Canada and Mexico whose occupations appear on a NAFTA schedule and who have the necessary education or experience.
23
Q
O Visas
A
nonimmigrant visa
O visas are temporary visas available for persons of extraordinary ability in the arts, sciences, education, business, or athletics that has been demonstrated by sustained national or international acclaim.
24
Q
Q Visas
A
non immigrant visa
Q visas are used by cultural exchange visitors who come to the U.S. to work temporarily.
25
exceptions for employment at will
Public policy exemptions.
Implied contract exemptions.
Covenant of good faith and fair dealing exemption.
26
Public policy exemptions for EAW
Employees may not be fired without cause if this would violate state or federal laws. Terminations that can be proven to be in violation of a federal antidiscrimination law (such as the Americans with Disabilities Act) would not be protected under the at-will doctrine. For example, an employee cannot be fired for talking to other employees about work conditions, forming a union, or whistleblowing, which are protected activities.
27
Implied contract exemptions EAW
Implied (not written) contracts are difficult to prove but can be created through certain employer actions, promises, or statements made by individuals or the organization as a whole. For example, promises in an employee handbook that employees will be fired only for good cause may be interpreted as an implied contract.
28
Fair Credit Reporting Act (FCRA
1970 regulates the collection and use of consumer credit information. The FCRA’s purpose is to protect the privacy of background information and to ensure that the information supplied is accurate. FCRA calls for full disclosure of consumer reports (including credit reports, criminal background checks, motor vehicle history, employment verifications, and reference checks) by consumer reporting agencies (CRAs) so that individuals subject to them can dispute the accuracy, wrongful use, or interpretation of the information.
29
FCRA Provisions
Written notice and authorization.
Pre-adverse action.
Adverse action procedures.
Certifications to credit bureaus.
Penalties.
30
The Fair and Accurate Credit Transactions Act (FACT Act)
2003 amends the Fair Credit Reporting Act and provides some relief to employers using third parties to conduct workplace investigations. Under the FACT Act, an employer who uses a third party to conduct a workplace investigation no longer needs to follow the consent and disclosure requirements of the FCRA before commencing the investigation if the investigation involves suspected misconduct, a violation of law or regulations, or a violation of any pre-existing written policies of the employer.
31
what is a protected class
describes people who are covered under a particular federal, state, or local antidiscrimination law. Individuals may be protected based on their actual membership in a protected class, if they are perceived to be a member of a protected class (even if that perception is wrong), or based upon the protected class of a person with whom the individual associates.
32
what are two primary types of discrimination
disparate treatment and disparate impact
33
what is disparate treatment
type of discrimination occurs when an applicant or employee is treated differently because of his or her membership in a protected class.
Examples:
National origin: A manager always screens out applicants who appear to be of Middle Eastern heritage.
Sex: An employer has different entry requirements for women than for men.
Race: Caucasian employees who violate organizational policy are not disciplined, but African-American employees who violate the same policy are disciplined.
34
what is disparate impact
results when a policy that appears to be neutral has a discriminatory effect.
also called adverse impact. An organization has nonessential education requirements for certain jobs that impact minority groups who have been limited in their access to educational opportunities.
An organization hires only high-school graduates for custodial positions.
35
what are protected activities
A protected activity includes actions such as filing a complaint, threatening to file a complaint, refusing to obey an order that can be reasonably believed to be discriminatory or unsafe, engaging in concerted activity with other employees to obtain changes in employment terms or conditions, or picketing to protest the terms and/or conditions of employment.
36
National origin
refers to the country—including those that no longer exist—of one’s birth or of one’s ancestors’ birth. “National origin” and “ethnicity” often are used interchangeably, although an “ethnic group” can refer to religion or color as well as the country of one’s ancestry.
37
gender identity
refers to one’s internal, personal sense of being a man or a woman (or boy or girl), which may or may not be the same as one’s sexual assignment at birth. For transgender people, their birth-assigned sex and their own internal sense of gender identity do not match. “Transgender” is the general term applied to individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles.
38
places where Title VII applies
As amended by the Equal Employment Opportunity Act of 1972 (
Most private employers and state and local governments that have 15 or more employees.
Educational institutions.
Federal government agencies.
Public and private employment agencies.
Labor unions with 15 or more members.
Joint (labor-management) committees for apprenticeships and training.
39
Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) of 1938 establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full- and part-time workers in the private sector and in federal, state, and local governments.
40
another name for the FLSA
The FLSA is commonly referred to as the Wage and Hour Law (and is also known as the Wagner-Connery Wages and Hours Act). It was designed to protect workers and address conditions that burdened the American economy during the Great Depression and has been amended over the decades.
41
Where does the FLSA Apply
The FLSA applies to public and private employers with at least $500,000 in annual dollar volume of business (with some limited exceptions). It also applies to organizations with employees who engage in interstate commerce or the production of goods for interstate commerce.
42
Organizations that the FLSA applies to regardless of the dollar volume of their business
Hospitals
Institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises
Schools for children who are mentally or physically disabled or gifted
Preschools, elementary and secondary schools, and institutions of higher education
Federal, state, and local government agencies
Under certain circumstances, the FLSA may also cover domestic service workers, such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters.
43
Test to determine if an independent contractor
Having the ability to set own hours and determine sequence of work
Working by the project rather than having a continuous relationship with the employer
Being paid by the job (rather than by the hour or pay period)
Having the opportunity for profit and loss
Furnishing own tools and training
Being self-employed and holding oneself out as such
44
six factors that will guide DOL analysis of whether a worker is an employee under the FLSA according to Final rule in the federal register which was published on Jan 10, 2024 and took effect March 11, 2024
The worker’s opportunity for profit or loss depending on managerial skill (the lack of such opportunity suggests employee status),
Investments by the worker and the potential employer (if the worker makes similar types of investments as the employer, even on a smaller scale, it suggests independent contractor status),
Degree of permanence of the work relationship (an indefinite, continuous or exclusive relationship suggests employee status),
The employer’s nature and degree of control, whether exercised or just reserved (control over the performance of the work and the relationship’s economic aspects suggests employee status),
Extent to which the work performed is an integral part of the employer’s business (if the work is critical, necessary or central to the principal business, the worker is likely an employee), and
The worker’s skill and initiative (if the worker brings specialized skills and uses them in connection with business-like initiative, the worker is likely an independent contractor).
45
what does exempt mean in terms of employment
exempt employees are excluded from the minimum wage and overtime pay requirements of the law.
46
what does non exempt mean in terms of employment
Nonexempt employees are not excluded from minimum wage pay requirements and are entitled to overtime pay.
47
salary level of a “highly compensated individual”
$107,432.
48
what requirements must be met to be generally considered exempt
(1) minimum salary, (2) paid on a salary basis (without improper deductions), and (3) primary duties. Exempt employees must work in a bona fide manner in, for example, executive, administrative, professional, or outside sales positions. In general, they must be paid on a salary basis, with a guaranteed minimum amount no matter how many hours are worked per week (the $684 per week mentioned above).
49
what is a safe harbor provision
A safe-harbor provision prevents an employer from losing an overtime exemption for improper pay deductions—regardless of the reason for the improper deductions—where the employer:
Has a “clearly communicated policy” that prohibits improper pay deductions and includes a complaint mechanism.
Reimburses employees for any improper deductions.
Makes a good-faith effort to comply in the future.
50
Absence Type- During first or last week of employment.
ALLOWABLE
When an employee works less than a full week in the first or last week of employment, paying a portion of the employee’s full salary for the days/hours actually worked is allowable.
51
Absence Type - Personal Day (full Day)
ALLOWABLE
When no work is performed in a day, full-day deductions from pay are allowable.
52
Absence Type - Personal Day (Partial- Day)
Non Allowable
If any work is performed in a day, no deductions from salary are allowed. For example, if an employee is absent for one-and-a-half days, an employer may only deduct for one full day.
53
Absence Type -Family and Medical Leave Act (FMLA) leave (full-day).
Full-day deductions are allowed when leave is taken under the FMLA.
Allowable
54
absence type - Family and Medical Leave Act (FMLA) leave (partial-day
An employer may pay a proportionate part of the full salary for time worked. For example, if an exempt employee who normally works 40 hours per week uses four hours of unpaid leave under the FMLA, an employer may deduct 10 percent of the salary of the exempt employee’s normal salary for that week.
Allowable
55
Absence type - Sickness or disability without a bona fide leave plan in place, full- or partial-day absence
No deduction in pay allowed.
Not allowable
56
Absence type- Sickness or disability with a bonafide leave plan in place, partial-day
Partial-day deductions are not allowed.
Not allowable
57
Absence Type- Sickness or disability with a bonafide leave plan in place, full-day.
If an employer has a bona fide paid-leave plan in place (paid sick leave, short-term disability, etc.) and an employee is not yet eligible to participate in the plan or has exhausted his or her leave, a full-day deduction from pay is allowed.
Allowable
58
absence type: Disciplinary suspension for violating workplace conduct rules (full-day).
Deductions may be made for disciplinary suspensions of one or more full days for infractions of workplace conduct rules, as long as there is a written policy applicable to all exempt employees. Conduct rules would include those regarding harassment and violence, but not issues such as attendance or work quality.
Allowable
59
Absence Type: Disciplinary suspension for violating workplace conduct rules (partial-day).
Partial-day deductions are not allowed.
Not allowable
60
Absence type: Major safety violations, full- or partial-day.
Deductions may be made in any amount. Safety rules of major significance include those relating to the prevention of serious danger in the workplace or to other employees, such as rules prohibiting smoking in explosive plants, oil refineries, and coal mines. This deduction does not need to be tied to an absence from work.
Allowable
61
absence type: Holiday, full- or partial-day.
No deductions are allowed unless the employer closes for a full workweek. Policies requiring employees to work the day before and after a holiday are not allowed.
Not allowable
62
absence type: Business closures (weather, emergency, lack of work, etc.), full- or partial-day.
If an employee is available and ready to work, an employer may not dock an exempt employee’s pay unless no work is available for a full workweek.
Not allowable
63
absence type: Poor job performance.
No pay deductions are allowed due to the quality of work.
Not allowable
64
absence type: Jury or witness duty or temporary military duty.
An employer cannot make pay deductions for absences of an exempt employee due to jury or witness duty or temporary military duty, unless the absence is for a full workweek. Salary can be offset by jury or witness duty fees or military pay received by the employee.
Not allowable
65
Blue collar worker
Blue-collar workers are defined as those who perform work involving repetitive operations with their hands, physical skill, and energy. The DOL has stated that individuals in these positions will not be exempt no matter how highly they are compensated.
66
what is a joint employer
occurs when an employee has more than one employer. These employers can be defined as employment entities that somehow benefit from or reap the rewards of an employee’s work. An employee is considered to have joint employers when both employers have equal and direct control over the worker’s employment status (hiring and/or firing), the worker’s schedule or working conditions, how much the worker is paid and by what method, and possession/upkeep of the worker’s employment records.
67
most recent rules regarding joint employer-status
under the National Labor Relations Act. Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.
68
under the FLSA all non exempt workers are paid overtime 1.5 their regular rate in excess of 40 hours. it does not include
Discretionary bonuses.
Payments made when no work is performed, such as vacation or holiday pay.
Gifts.
Irrevocable benefits payments.
Payments for traveling expenses.
Premium payments for work performed outside an employee’s regular work hours.
Extra compensation paid according to a private agreement or collective bargaining.
Income derived from grants or options.
69
workweek definition.
A workweek is any fixed, recurring period of 168 consecutive hours (7 days times 24 hours = 168 hours). An employer’s workweek may begin on any day of the week, and it must be consistent from week to week. An employer may have different workweeks for different locations and/or classifications of employees. For instance, truck drivers required to deliver material by Monday—the beginning of the workweek for others—may have a workweek that starts on Sunday.
70
exceptions of minimum wage
Employees younger than 20 years old, during their first 90 consecutive calendar days of employment.
Tipped employees.
Full-time students who are employed in retail or service establishments, agriculture, or institutions of higher education.
Student learners who are students at an accredited school, college, or university, at least 16 years of age, and employed on a part-time basis pursuant to a bona fide vocational training program.
Workers whose earning or productive capacity is impaired by physical or mental disability.
In most of these cases, workers may be paid less than the standard minimum wage, but only if the employer first obtains a certificate from the appropriate regional office of the DOL’s Wage and Hour Division.
71
What is the portal to portal act
The Portal-to-Portal Act of 1947 amended the FLSA and defined additional rules for hours worked. Following are some guidelines included in the Portal-to-Portal Act and its amendments.
72
what is equal pay act EPA of 1963
The Equal Pay Act (EPA) of 1963, technically an amendment to the FLSA, prohibits unequal pay for equal or “substantially equal” work performed by men and women. Once a pay disparity is established between a male worker and a female worker performing substantially equal jobs, the burden of proof shifts to the employer to justify its actions.
73
what is the McNamara-O’Hara Service Contract Act of 1965
The McNamara-O’Hara Service Contract Act requires contractors and subcontractors on prime contracts (that is, contracts with the project owner) in excess of $2,500 to pay service employees in various classes no less than the wage rates and fringe benefits found in the locality or the rates, including prospective increases, found in the previous contractor’s collective bargaining agreement. In response to specific requests from contracting agencies, the Department of Labor will issue wage determinations on a contract-by-contract basis.
Contracts equal to or less than $2,500 must pay the federal minimum wage, as is provided in the Fair Labor Standards Act. If the contract is in excess of $100,000, laborers and mechanics, including guards and watchmen, must be paid at least time and a half for all hours worked over 40 during a workweek by the contractor or subcontractor.
74
Walsh-Healey Public Contracts Act
The Walsh-Healey Public Contracts Act applies to manufacturers and suppliers of goods for federal contracts in excess of $15,000. It establishes a minimum wage, maximum hours, and health and safety standards for contracts to manufacture or furnish materials, articles, or equipment to the U.S. government or the District of Columbia. It requires retention of current work permits for minors as well as compensation records including:
Amounts and dates of actual payment.
Period of service covered.
Daily and weekly hours.
Straight time and overtime hours/pay.
Fringe benefits paid.
Deductions and additions.
It also requires retention of data on job-related injuries and illnesses (logs with dates and summaries and details of accidents).
75
Davis-Bacon Act
The Davis-Bacon Act applies to certain federal contractors and subcontractors with construction projects in excess of $2,000. It requires contractors and subcontractors to pay laborers and mechanics no less than the locally prevailing wages and fringe benefits for corresponding work on federal contracts. It also requires the retention of records containing the following basic data for all employees:
Name
Address
Social Security number
Gender
Date of birth
Occupation
Job classification
76
Ledbetter v. Goodyear Tire and Rubber Company (2007
he U.S. Supreme Court ruled against Lilly Ledbetter’s claims of sex discrimination in pay under Title VII. The court ruled that Ledbetter’s claims were not timely because she did not file discrimination charges with the EEOC within the 180-day time frame, which is a prerequisite for bringing a discrimination lawsuit.
77
Lilly Ledbetter Fair Pay Act of 2009
overturned the Ledbetter 2007 U.S. Supreme Court decision.
Under the Ledbetter Act, the statute of limitations resets as the employer issues each allegedly discriminatory paycheck. Additionally, the open-ended nature of the law’s coverage of unlawful employment practices, which includes compensation decisions or “other practices,” suggests that employees and their families or heirs could file a discrimination lawsuit against an employer regarding benefits such as salary-based defined benefit and contribution-based defined contribution retirement plan payouts and salary-based life insurance proceeds.
78
reasons an employer can defend its pay disparity
A seniority system.
A merit system.
A difference in the quality or quantity of work.
Geographic work differentials.
Any factor other than sex.
79
Comparable worth
Comparable worth deals with pay differentials between women and men who perform comparable—but not equal—work. Comparable worth looks at different jobs that women and men hold that require comparable skills, effort, responsibility, and working conditions. Although the EPA does not require consideration of comparable worth, some states require all public jurisdictions such as school districts to eliminate any sex-based wage inequities.
80
Equal work
Equal work is defined by equal skills, equal effort, equal responsibility, and similar working conditions in the same establishment.
81
Equal pay act key provisions for equal work
skill, effort, responsibility and working conditions
82
what is the Employee Retirement Income Security Act (ERISA) 1974
establish uniform minimum standards to ensure that employee retirement plans are set up and maintained in a fair and financially sound manner. ERISA is designed to protect the interests of participants in pension and welfare benefit plans and their beneficiaries. Employers are not required to offer a retirement or welfare benefit plan, but if they do have one, the plan must conform to the applicable requirements of the Internal Revenue Code and ERISA in order for employers and participating employees to receive available tax advantages.
Most private-sector employee benefit programs are subject to some provisions of ERISA. The legislation applies to and regulates qualified private retirement plans and welfare plans such as employer-sponsored group medical programs, group life insurance, and long-term disability coverage. Many public-sector employers and churches are not subject to ERISA.
83
plan requirements for ERISA that employers must comply with
Fiduciary duties
Eligibility requirements
Vesting requirements
84
what is vesting
Vesting is the process by which a retirement benefit becomes nonforfeitable, that is, when the employee is permanently entitled to a portion or all of his or her benefit.
85
what is the prudent person rule
the prudent person rule, also known as the prudent investor rule, requires fiduciaries to manage assets with the same care, skill, and diligence that a prudent person would use in managing their own affairs, focusing on both income and capital preservation.
86
what is the sarbanes-oxley act
The Sarbanes-Oxley Act (SOX) of 2002 was enacted in response to Enron and other corporate accounting scandals. The act requires that all publicly held companies establish internal controls and procedures for financial reporting to reduce the possibility of corporate fraud.
87
Section 101(i) of ERISA
SOX created ERISA Section 101(i), which requires administrators of 401(k) and other defined contribution plans to provide notice to affected participants and beneficiaries at least 30 days, but not more than 60 days, in advance of a blackout period. The act added a civil penalty for a plan administrator’s failure or refusal to provide timely notice of a blackout period. The blackout period is a period of more than three consecutive business days during which participants or beneficiaries cannot direct the investment of or diversify assets credited to their accounts or obtain loans or distributions, other than certain exceptions specified in ERISA Section 101(i).
88
What is the Consolidated Omnibus Budget Reconciliation Act
COBRA) of 1985 provides individuals and their dependents who otherwise would lose their coverage due to a COBRA-qualifying event with an opportunity to continue receiving health-care coverage under the employer’s group health plan at the individual’s expense. COBRA-qualified beneficiaries must pay the full premium for the coverage. In addition, the plan may elect to charge a qualified beneficiary a 2% administrative fee.
89
details of Cobra
Employers who provide health-care benefits to their employees and who employed an average of 20 or more people in the prior calendar year must allow covered employees and their covered dependents to continue their group health coverage in the event such coverage would end due to termination of employment, divorce, death of the employee, etc. An exception to this general rule applies in the case of a person whose employment is terminated due to gross misconduct, if the employer elects to apply that exception.
The maximum length of time COBRA coverage can be continued (usually 18 or 36 months, sometimes longer) is determined by the type of qualifying event
Termination of employment for any reason other than gross misconduct
18
Reduction in hours
18
Employee is disabled at the time of reduction in hours or termination (if required notice is provided to plan administrator in timely manner)
29
Divorce or death of the employed spouse
36
Dependent child loses eligibility status
36
90
who administers COBRA
Department of licensing with IRS
91
when must employee make cobra elections
employee must make COBRA elections within 60 days of the date that he or she loses coverage or the date that he or she was notified of the right to elect COBRA coverage (whichever is later).
92
what is HIPPA
the Health Insurance Portability and Accountability Act (HIPAA) of 1996
It protects individual health information while allowing necessary access to health information, promoting high-quality healthcare, and protecting the public's health. The Privacy Rule permits important uses of information while protecting the privacy of people who seek care and healing.
93
Changes that HIPPA made to Cobra
HIPAA clarifies that all related qualified beneficiaries eligible for COBRA because of the same 18-month qualifying event are entitled to purchase the additional 11 months of continuation coverage—for a total of 29 months—if any one of the qualified beneficiaries is disabled at the time of termination or at any time during the first 60 days of COBRA coverage.
The rule that COBRA coverage could not be terminated if the qualified beneficiary obtained other coverage with a pre-existing condition was modified to allow termination of COBRA coverage if the qualified beneficiary is not subject to the pre-existing condition because of HIPAA’s creditable coverage rule.
The definition of qualified beneficiary was changed to include children born to or placed for adoption with a covered employee while COBRA continuation coverage is in effect.
Key HIPAA Privacy Rule changes took effect on June 25, 2024, and will be enforced from January 1, 2025. These included a definition of “reproductive health care” added to HIPAA, with the definition covering termination, contraception, fertility, and miscarriage healthcare.
94
what is FMLA
The act covers private-sector employers with 50 or more employees (full- or part-time) for 20 or more workweeks in the current or preceding calendar year. It applies not only to private employers but also to nonprofit organizations and public agencies (regardless of the number of employees), including Congress. To be eligible for FMLA leave, an employee must have worked at least 12 months (total) for the employer, for at least 1,250 hours in the 12-month period preceding the commencement of the leave, and at a site within 75 miles of which 50 or more employees work.
95
cases employee can take FMLA
For incapacity due to pregnancy, prenatal medical care, or childbirth
To care for the employee’s child after birth or placement for adoption or foster care
To care for the employee’s immediate family member (for example, spouse, child, or parent) who has a serious health condition
For a serious health condition that makes the employee unable to perform his or her job
To care for any next of kin who is a covered service member with a service-related illness or injury (military caregiver leave)
To attend to obligations that arise as a result of an immediate family member’s call to or return from covered military service (exigency leave)
96
some of the changes to FMLA in 2023
FMLA allows employees to limit their workday indefinitely
Remote employees are FMLA eligible
Updated FMLA employee rights poster available
How workweek holidays impact FMLA leave
FMLA forms expired in June 2023, and on April 19, 2024 the DOL’s Wage and Hour Division (WHD) released updated versions of several FMLA forms with an expiration date of June 30, 2026.
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what is the NDAA
The National Defense Authorization Act (NDAA) for Fiscal Year 2008 provided the first expansion of FMLA leave for employees with family members who are covered members of the military. Specifically, the act added two new FMLA-qualifying events: qualifying exigency leave and military caregiver leave. The National Defense Authorization Act for Fiscal Year 2010 (2010 NDAA) further expanded the military family leave rights added to the FMLA in 2008.
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Qualifying reasons to take leave under FMLA military leave provisions
Short-notice deployment
Military events and related activities
Child-care and school activities
Financial and legal arrangements
Counseling; rest and recuperation
Post-deployment activities
Additional activities agreed to by the employer and the employee
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what is USERRA
USERRA was enacted to protect the employment, reemployment, and retention rights of persons who voluntarily or involuntarily serve or have served in the uniformed services.
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number of workweeks of unpaid FMLA leave for military caregiver
26
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who does USERRA apply to
USERRA applies to virtually all employers, both public and private, regardless of size, and prohibits discrimination in employment, job retention, advancement, or any benefit of employment on the basis of membership, application for membership, application for service, performance of service, or obligation for service in the uniformed services.
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What did the Veterans opportunity to work to hire heroes act do to USERRA
In 2011, the Veterans Opportunity to Work (VOW) to Hire Heroes Act amended USERRA to recognize claims of a hostile work environment on account of an individual’s military status generally. By amending USERRA to prohibit discrimination with respect to the “terms, conditions, or privileges of employment,” the VOW to Hire Heroes Act establishes the same standard for hostile environment claims on account of military status as that governing Title VII and other employment discrimination laws.
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what is PPACA
The Patient Protection and Affordable Care Act (PPACA) of 2010, amended by the Health Care and Education Reconciliation Act, is one of the largest U.S. health-care reforms since Medicare legislation in 1965. PPACA provisions are extensive. Since 2014, virtually all citizens and legal residents of the U.S. have been required to have minimum essential health coverage. (An exception is made for lower-income individuals.) Failure to do so results in an excise tax penalty.
A key PPACA provision requires employers with more than 50 full-time employees to offer minimum essential health coverage that meets minimum benefit specifications or pay a penalty of $2,000 per full-time employee per year. This provision became effective for employers with at least 100 full-time employees beginning in 2015 and for employers with at least 50 full-time employees beginning in 2016.
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threshold for the PPACA in terms of employer responsibility to cover employees
more than 50 full time.
Penalty of $2000 per full time employee per year for non compllianc
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what is national federation of independent Business v Sebellius
In National Federation of Independent Business v. Sebelius (2012), the U.S. Supreme Court considered two key PPACA provisions: Medicaid expansion and the individual mandate
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what is DOMA
The Defense of Marriage Act (DOMA) defined marriage as the union of one man and one woman and permitted states to not recognize same-sex marriages recognized by other states. It was ruled unconstitutional by the United States Supreme Court in cases including United States v. Windsor (2013) and Obergefell v. Hodges (2015).
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what did the respect for marriage act of 2022 do?
DOMA was formally repealed by the federal Respect for Marriage Act of 2022, which defined marriage for the purposes of federal law as a legal union between two individuals and required states to recognize same-sex and interracial marriages duly performed in other jurisdictions. The new language of the Respect of Marriage Act requires states to approve and acknowledge out-of-state marriage licenses issued to interracial couples.
