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U.S. Employment Laws and Regulations Flashcards

1
Q

Sources of Law

A
  • The Constitution
  • Statutes
  • Regulations
  • Agency guidelines
  • Executive orders
  • Common law
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2
Q

The Constitution

A
  • Highest law in the country and foundation on which all U.S. laws are built
  • Defines powers of the different governmental branches (executive, legislative, judicial) and how the entities operate and interrelate
  • Provides basic principles such as fundamental freedoms and rights
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3
Q

Statutes

A
  • Actions passed by legislative bodies
    • Ex: Congress, state legislatures and by local governments units(cities and counties)
  • One of the important function of court systems is to interpret these statutes (what they mean and how they are applied)
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4
Q

Regulation

A
  • Proposed, adopted and enforced by administrative agencies
  • Administrative agencies are given specific rule-making authority from the governmental units
  • Reflect how laws will be implemented and often have the force of law
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5
Q

The regulatory process

A
  • Includes a stage where proposed regulations are released to the public for comment which allows organizations and citizens to weigh in
  • The administrative agency will review and analyze comments before formally adopting it as a regulation
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6
Q

Agency Guidelines

A
  • Released by adminstrative agencies
  • Guidelines are used to interpret how laws and regulations will be enforced
  • Influence how organizations operate
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7
Q

Agency guidelines include

A
  • Agency interpetations
  • Policy statements
  • Letters
  • Advisory materials to supplement or explaign regulatons and statutes
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8
Q

Executive Orders

A
  • Directive by chief executive of governmental unit (ex: president of U.S) telling that governmental unit how it will act or interact with members of its community
  • Can only direct governmental units, but has direct impact on any individual or group interacting with that unit
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9
Q

Common Law

A
  • Based on court decisions, rather than statutory law,
  • Recognized on federal level and by all or almost all states
  • Source of the concept of precedent - if the court decides how a law interacts in one circumstance similar cases must have the same application
  • Gives the idea of stability and predictability in the law
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10
Q

Amendment

A
  • Modification of the Constitution or a law.
  • May alter the actual text of the Constitution or law.
  • Even if the text is not changed, an amendment changes its effect.
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11
Q

Bill

A

A proposal presented to a legislative body for possible enactment as a statute.

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12
Q

Public comment period

A

The time allowed for the public to express its views and concerns regarding an action of an administrative agency.

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13
Q

Veto

A
  • Action of rejecting a bill or statute.
  • For example, the President of the United States may veto a statute that has been passed by Congress.
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14
Q

Costs of Employment-Related Litigation

A
  • Negative impact on organization’s bottom line
  • Poor employee morale
  • Decreased employee productivity
  • Damage to employment brand and reputation
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15
Q

How HR can work with legal council to prevent legal issues

A
  • Consult with attorney to prepare for complaints
    • Gives a prompt, consistent and legally safe response
    • Having legally reviewed checklists and communication templates speed up response
  • Deliver training related to litigation responsibilities
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16
Q

Employment practices liability insurance (EPLI)

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.
  • Purpose is to protect business against heavy financial losses from employment claims and lawsuits
  • Transfers risk of losses associated with employment litigation during the whole employment life cycle to an insurance carrier
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17
Q

Employment practices liability insurance (EPLI) covers

A
  • Covers items that are not ususally covered by general business liability insurance
    • Discrimination, harrassment, breach of contract and wrongful discharge suits
  • Usually doesn’t cover worker’s comp or punitive damages that may be assessed by a court
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18
Q

If organization has concerns that HR audit will reveal noncompliance with HR laws

A

Organization should follow strict audit procedures and protocols and consider hiring outside legal counsel to conduct audit

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19
Q

HR Compliance Checklists

A
  • Used to prepare for HR compliance audit
  • Can be internal or external
  • Administrative agencies may be more or less rigorous in its efforts depending on the scope of audit.
  • It is a way to check if practices are in place, not to ensure 100% compliance
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20
Q

HR Compliance Checklists Helps To

A
  • Keep organization compliant with employment laws and regulations
  • Prevent potential liabilities and employment lawsuits
  • Ensure business operations are generating results and supporting the organization’s brand
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21
Q

Attorney-client privilege

A
  • Privledged and confidential discussions between client and attorney are not subject to the discovery process
  • Does not include dicussions for the purpose of commiting a crime or civil tort uncluding fraud
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22
Q

Discovery process

A

When each party learns facts about the other side’s case within certain limits.

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23
Q

Steps of Employment Lawsuit

A
  1. Notification
  2. Answering complaint
  3. Scheduling conferences
  4. Discovery process
  5. Motion to dismiss
  6. Summary judgement
  7. Pretrial and trial
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24
Q

Notification Step of Employment Lawsuit

A

Notification of complain in two ways:

  1. Delivery by sheriff or other process server
  2. Mail by plaintiff’s attorney along with “waiver of service of process” form
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25
Q

HR Involvement in Notification Step of Employment Lawsuit

A
  • Notify employer’s legal counsel promptly and respond as directed
  • Issue litigation hold letter
  • Ensure that employees refrain from retaliation against plaintiff
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26
Q

Answering Complaint Step of Employment Lawsuit

A

Responsive pleading filed with court that either admits or denies complaint allegations and raises affirmative defense or seeks dismissal of complaint

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27
Q

HR Involvement in Answering Complaint Step of Employment Lawsuit

A
  • Supply legal counsel with plaintiff’s personnel files and any other related documents
  • Assist legal counsel in any investigation as required
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28
Q

Scheduling Conferences Step of Employment Lawsuit

A

Meeting(s) of attorneys for both sides and judge to establish dates for getting case to trial as well as actual trial date

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29
Q

HR Involvement in Scheduling Conferences Step of Employment Lawsuit

A

Advise attorney of time required for conducting internal investigation

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30
Q

Discovery Process of Employment Lawsuit

A
  • Period where each party learns facts about the other side’s case
  • Generally time consuming (may go on for months)
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31
Q

HR Involvement in Discovery Process of Employment Lawsuit

A
  • Help employer’s legal counsel gather information in timely manner to prepare internal disclosures
  • May sign off on interrogatory answers
  • May need to provide deposition
  • May attend plaintiff’s disposition
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32
Q

Motion to dismiss step of employment lawsuit

A

Request from one side for judge to end the proceedings

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33
Q

HR involvement with motion to dismiss

A

Usually no HR involvement

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34
Q

Summary judgement step of employment lawsuit

A
  • Motion prepared at discretion of legal counsel requesting court to dismiss case without trial
  • Granted only if there are no material facts
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35
Q

HR involvement with summary judgement of employment lawsuits

A
  • May be requested to gather additional facts
  • May be asked to sign affidavit
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36
Q

Pretrial and trial step of employment lawsuit

A

Time leading up to trial date and actual trial proceedings

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37
Q

HR involvement in pretrial and trial of employment lawsuits

A
  • Support employer’s legal counsel with final trial preparations and trial litigation
  • Provide additional documentation as may be required
  • Help with scheduling of witnesses
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38
Q

Possible Remedies for Plaintiffs

A
  • Reinstatement, promotion, back pay and benefits, front pay (future wages, usually in lieu of reinstatement), remedial training and/or transfer, injunctive relief, and actual damages. May also include attorneys’ fees, expert witness fees, and court costs.
  • If complaint is to the National Labor Relations Board (NLRB) remedies may also include posting notices about rights to belong to unions, permit union agents to talk to employees in their workplace, permitting union agents to make speeches to employees on paid time and reading notices regarding rights of employees to unionize and engage in other NLRA protected activities
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39
Q

Equal Employment Opportunity Act

A
  • U.S act that amended Title VII
  • Gave the Equal Employment Opportunity Commission authority to “back up” its administrative findings and conduct its own enforcement litigation
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40
Q

Protected class

A
  • People who are covered under a particular federal or state antidiscrimination law
  • Can be based on 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
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41
Q

Disparate treatment

A

Type of discrimination that occurs when an applicant or employee is treated differently because of his or her membership in a protected class.

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42
Q

Disparate impact

A
  • Type of discrimination that results when a policy that appears to be neutral has a discriminatory effect
  • Also known as adverse impact.
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43
Q

Civil Rights Act of 1964

A
  • Landmark antidiscrimination legislation
  • Nation’s first comprehensive federal law making it unlawful to discriminate employment on base of race, color, religion, sex, or national origin
  • Passed to bring equality in hiring, transfers, promotions, compensation access to training and other employment-related decisions
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44
Q

Title VII of the Civil Rights Act of 1964

A
  • Provisions include
    • Recruiting, hiring and advancement
    • Segregation and classification of employees
    • Harrassment/hostile work environment
    • Compensation
    • Other terms, conditions and priviledges of employment
  • Includes: national origin, race, sex, gender, gender identity, sexual orientation
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45
Q

Employees who file discrimination lawsuit from Title VII Civil Rights Act of 1964

A

Must first file timely charge of discrimination with EEOC to preserve right to sue

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46
Q

Title VII Civil Right Act Includes What Types of Organizations

A
  • 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.
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47
Q

Exceptions to Title VII antidiscrimination principles in workplace

A
  • Work related reasons – defend practice
  • Bona fide occupational qualification (BFOQ)
  • Bona fide seniority systems
  • Affirmative action plans
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48
Q

Bona fide occupational qualification (BFOQ)

A
  • Factor (such as religion, gender, national origin, etc.) that is reasonably necessary, in the normal operations of an organization, to carry out a particular job function
  • Race can never be a BFOQ
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49
Q

Equal Employment Opportunity Act of 1972

A
  • U.S act that amended Title VII
  • Gave the Equal Employment Opportunity Commission authority to “back up” its administrative findings and enforcement.
  • Expanded Title VII to include educational institutions, state and local governments, federal executive agencies, and defined units of other branches
  • Reduced number of employees for private employer to be covered by act (25 to 15)
  • Expanded period of time changing parties have (30 to 90 days) to file lawsuit after EEOC has informed them that it is no longer working on their charge (allowing charging parties a better change to find lawyer if they want to bring charges to court)
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50
Q

Pregnancy Discrimination Act (PDA)

A
  • U.S. act that prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions
  • Requires employers to treat pregnancy the same as any other temporary disability.
  • Employers must provide access to medical benefits and sick leave on the same basis as such benefits are provided to other employees or for other conditions.
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51
Q

Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines)

A
  • Assist employers in complying with federal regulations prohibiting discrimination
  • Covers all aspects of the selection process including recruiting, testing, interviewing, and performance appraisals (to extend they are used in employment decisions)
  • Is not law – is a procedural document published in Code of Federal Regulations to help employer comply with Title VII and other equal employment opportunity requirements of federal law
  • Outlines requirements for employers to legally defend employment decisions based upon overall selection processes and specific selection procedures
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52
Q

According to Uniform Guidelines Adverse Impact Occurs

A
  • When selection rate for employment decision works to the disadvantage of a protected class
  • Applies 80% rule or four – fifths rule and the bottom-line concept
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53
Q

80% or Four-Fifths Rule

A
  • When selection rate of protected class is less than 80% of rate of class with highest selection rate
  • Based upon selection rate (percentage hired) for each group
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54
Q

Bottom-line concept

A

Federal enforcement agencies do not expect employer to evaluate each component of the selection process individually if total selection process does not have adverse impact

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55
Q

When 80% Rule is Violated Employers Must

A
  • Analyze the data more rigorously to determine whether there is in fact adverse impact. This may include both statistical and practical analyses.
    • This alternative may be the first step toward meeting the “strong basis in evidence” standard set by the U.S. Supreme Court decision Ricci v. DeStefano in 2009, but it is not the only step
  • Use another procedure that has been 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 a business necessity.
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56
Q

Griggs v. Duke Power 1971

A
  • Duke Power historically discriminated against black.
  • Then dropped the discriminatory practices and adopted “seemingly neutral” education and test score requirements.
  • Griggs was denied due to not being a high-school graduate who claimed job requirement was discriminatory and did not relate to job succes
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57
Q

Griggs v. Duke Power 1971 Outcome

A
  • Set the standard for determing if descrimination based on disparte impact exists
  • Employment discrimination does not need to be overt or intentional to be unlawful
  • Employment practices can be unlawful even when applied to all employees
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58
Q

Phillips v. Martin Marietta Corporation (1971)

A
  • One of first cases to apply sex discrimination provision of Title VII of Civil Rights Act of 1964
  • Employer may not without business necessity refuse to hire women with preschool-aged children while hiring men with such children
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59
Q

Civil Rights Act of 1991

A
  • Jury trials are allowed in cases where the plaintiff seeks compensatory or punitive damages
  • Provides for, but limits damage awards available to victims of intentional discrimination
  • Includes compensatory damages and punitive damages
  • Volations include
    • Title VII, the Americans with Disabilities Act
    • Section 501 of the Rehabilitation Act of 1973 (which applies to federal government employees and covered government contractors only)
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60
Q

Compensatory damages

A
  • Awarded to make injured person “whole”
  • Include
    • Damaged property, lost wages, pain, bereavement, medical expenses
    • Can also include financial payment for person’s out of pocket losses and future expenses due to injury, disability, disfigurement, pain and suffering and actual losses, whether economic or non economic
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61
Q

Punitive Damages (exemplary Damages)

A
  • Damages requested and/or awarded in lawsuit where defendant’s willful acts were malicious, violent, oppressive, fraudulent, wanton, or grossly reckless
  • Purpose is to punish defendant for misconduct and deter them (and others) from future similar misbehavior and is not possible for government unit or agency
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62
Q

Age Discrimination in Employment Act (ADEA)

A
  • Prohibits discrimination in every aspect of employment against employees and applicants age 40 and over
  • With a few limited exceptions to recognize that advanced age may, in some circumstances, affect an individual’s ability to perform certain jobs effectively.
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63
Q

Age Discrimination in Employment Act (ADEA) Covers

A
  • All state and local governments Private employers with 20 or more employees
  • Employment agencies
  • Apprenticeship and training programs
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64
Q

Exceptions to Age Discrimination in Employment Act (ADEA)

A
  • Adhering to a genuine seniority or benefit plan
  • Disciplining or firing a person for reasonable factors other than age.
  • The employee is a top executive or policy maker.
    • High-level managers and certain bona fide executives or high policy makers can be required to retire at age 65 if they are entitled to receive organization-sponsored retirement benefits of at least $44,000 per year, in the aggregate, and have held their position for two years immediately prior to retirement.) – dependent on the state
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65
Q

Age Discrimination in Employment Act (ADEA) Retirement Plans and Insurance

A
  • Employers must offer employees age 65 and older and their spouses the same group insurance coverage provided to younger workers and their spouses.
  • Medicare may be primary or secondary for active employees eligible to receive the organization’s group insurance coverage.
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66
Q

Age Discrimination in Employment Act (ADEA) Trials

A
  • Employee who wants to file a lawsuit must first file charge of discrimination with EEOC in order to preserve right to sue
  • Always allowed for jury trials
  • Instead of punitive or compensatory damages
    • Provides doubling of back-pay damages awarded by the jury for “willful” violation
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67
Q

Older Workers Benefit Protection Act (OWBPA)

A

Amended the ADEA to prohibit discrimination in two areas:

  1. Employee benefits.
    • Provides guidance on the ADEA requirement that benefits offered to older workers must be equal to the benefits offered to younger workers.
    • But does not require same cost of benefits
  2. Waivers of claims
    • Standards that an employee’s waiver of the right to sue for age discrimination must meet in order to be upheld by a court.
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68
Q

Older Workers Benefit Protection Act (OWBPA) Made it unlawful for employers to

A
  • Use an employee’s age as the basis for discrimination in benefits.
  • Target older workers for staff-cutting programs.
  • Require older workers to waive their rights without observing certain safeguards.
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69
Q

Older Workers Benefit Protection Act (OWBPA) Results

A
  • Compensation and terms, conditions, and privileges of employment are defined to encompass all employee benefits, including benefits provided under a bona fide employee benefit plan.
  • Older workers may not waive rights under the ADEA unless they are given 21 days (in the case of an individual termination) or 45 days (in cases of group termination or voluntary retirement programs) to consider the agreement and consult an attorney.
  • Employees must be given seven days to revoke the agreement after signing it (individual and group terminations).
  • Eligible employees must be provided with certain workplace demographic information as part of a group termination release.
  • The release must specifically reference age discrimination claims arising under the ADEA.
  • The release cannot cover claims arising after its execution.
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70
Q

Americans with Disabilities Act (ADA)

A

U.S. act that prohibits discrimination against a qualified individual with a disability because of his/her disability.

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71
Q

Americans with Disabilities Act (ADA) includes these employers:

A
  • Private, state and local government employers with 15 or more employees
  • Employment agencies
  • Labor organizations
  • Join labor-management committees
  • Does not cover federal government when it acts as employer
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72
Q

To be Qualified As Disabled Under ADA Individual Must

A
  • Have the requisite skills, experience, education, licenses, etc.
  • Be able to perform the essential functions of the job, either with or without reasonable accommodation.
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73
Q

ADA Essential Functions

A
  • Primary job duties that a qualified individual must be able to perform, either with or without accommodation
  • Reasons why function may be essential
    • Reason job exists is to perform this function
    • There are limited number of employees available that can take over this job function
    • Function may be highly specialized to require specific expertise or ability
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74
Q

Disability

A
  • Physical or mental impairment that substantially limits one’s major life activities
  • Has record of such impairment
  • Is regarded as having an impairment
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75
Q

Title I of ADA Covers

A
  • Medical examinations and inquiries
    • Only able to ask spplicants if they can preform essential job functions - not the information regarding the disability
    • Offer may be contingent on medical examination if it is required for all employees in similar jobs and must be job related
  • Drug and alcohol abuse
    • Illegal drug use is not covered under ADA
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76
Q

ADA Amendments Act (ADAAA)

A
  • Kept the ADA definition of disability and exapnded the interpretation to make it easier for those looking for protection to show they meet the definition of a disability
  • Directed the EEOC to amend its ADA regulations to reflect the changes made by the ADAAA.
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77
Q

ADAAA’s Nine Rules of Construction (to determine disability)

A
  1. “Substantially limits”
    • Used broadly to expansive coverage, to the maximum extent permitted by the terms of the ADA.
  2. An impairment
    • Disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people
    • It does not need to prevent or significantly restrict a major life activity to be considered “substantially limiting.”
    • Not every impairment will constitute a disability.
  3. Extensive analysis is not needed to termine if disability exists
  4. Determining whether an impairment substantially limits a major life activity requires an individualized assessment that is “simple and straightforward.”
  5. The comparison of an individual’s performance of a major life activity to that of most people usually will not require scientific, medical, or statistical analysis.
    • Nothing prohibits the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
  6. With one exception (eyeglasses or contact lenses), determining if an individual has a disability shall be made without regard to the ameliorative effects of mitigating measures.
    • Employees will be evaluated without regard to the hearing aids, medication, prosthetic devices, and other measures they use to manage their impairments.
  7. Impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they substantially limit a major life activity when active.
  8. An impairment that substantially limits one major life activity need not substantially limit other major life activities to be considered a substantially limiting impairment.
  9. While there is no minimum duration in determining whether an impairment substantially limits a major life activity, disabilities under the ADA must be conditions that are not both transitory and minor.
    • Impairments that last only a short period of time may be covered if sufficiently severe.
    • Minor imparements that longer than six months, for example, may also be a covered disability.
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78
Q

ADAAA Regulations Imparements that Always Meet Definition of Disability

A
  • Deafness that substantially limits hearing
  • Blindness that substantially limits seeing
  • An intellectual disability (formerly termed mental retardation) that substantially limits brain function
  • Partially or completely missing limbs or mobility impairments that substantially limit musculoskeletal functions and that require the use of a wheelchair
  • Autism that substantially limits brain function
  • Cancer that substantially limits normal cell growth
  • Cerebral palsy that substantially limits brain function
  • Diabetes that substantially limits endocrine function
  • Epilepsy that substantially limits neurological function
  • Human immunodeficiency virus (HIV) infection that substantially limits immune function
  • Multiple sclerosis that substantially limits neurological function
  • Muscular dystrophy that substantially limits neurological function
  • Major depressive disorder, bipolar disorder, post-traumatic disorder, obsessive-compulsive disorder, and schizophrenia that substantially limit brain function
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79
Q

ADAAA imparements do not include

A
  • Homosexuality
  • Bisexuality
  • Transvestism
  • Compulsive gambling
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80
Q

Reasonable Accommodation

A
  • Modifications or adjustments to a job or job application process that accommodate persons with disabilities but do not impose a disproportionate or undue burden on the employer.
  • Is a case by case basis
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81
Q

How to determine if accomidation imposes an undue harship

A
  • Nature and net cost of accomidation
  • Overall financial resources of the facility, the number of employees at the facility, and the effect on expenses and resources.
  • Overall financial resources of the covered entity
    • The overall size of the business of the covered entity: the number of its employees, and the number, type, and location of its facilities.
  • Type of operation or operations of the covered entity
    • Includes the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity.
  • Impact of the accommodation upon the operation of the facility
    • Includes the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.
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82
Q

Steps to Identify Reasonable Accomidation

A
  1. Individual asks for accommodation or employer knows of needs for an accommodation
  2. Identify the barriers to performance of essential job function for the individual
  3. Identify possible accomidations that may be helpful in overcoming the barriers
  4. Assess the reasonablness of accomidation including whether they are the employer’s responsibility and if they impose undue hardship
  5. Choose the appropriate accomidation for the individual
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83
Q

Harassment Violates

A
  • Title VII of the Civil Rights Act of 1964
  • ADEA
  • ADA Equal Pay Act
  • The Genetic Information Nondiscrimination Act
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84
Q

Harassment is Unlawful When

A
  • Becomes a condition of continued employment
  • A reasonable person would consider the work environment intimidating, hostile, or abusive
  • Individual is harassed in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit
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85
Q

How to Identify harassment

A
  • Whole picture in context of the alleged incidents occurred and if there is a pattern or a series of incidents over time
  • Frequencey of incidents
  • Looked at on a case by case basis
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86
Q

Sexual Harassment Types

A
  • Quid Pro Quo
  • Hostile environment
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87
Q

Sexual Harassment

A
  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.
  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals.”
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88
Q

Sexual harassment cases

A
  • Faragher v. City of Boca Raton
  • Burlington Industries, Inc. v. Ellerth.
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89
Q

Outcomes of sexual harrasment cases:

Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.

A
  1. Employers having responsibility to take reasonable care to prevent and correct or end harassment (sexual or otherwise)
  2. Employees have responsibility to take advantage of preventative and corrective opportunities
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90
Q

To Prevent Harassment Claims Companies Should

A
  • Train employees and managers on regular basis
  • Have employees report any incidents of harassment
  • Investigate reported allegations promptly and thoroughly
  • Implement corrective measures when necessary
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91
Q

Measures Employers Can Take to Help Ensure Fair Workplace

A
  • Include sexual orientation in nondiscrimination policies.
  • Provide training.
  • Prohibit and prevent harassment of lesbian, gay, bisexual, and transgender employees.
  • Recognize organizations representing the interests of lesbian, gay, bisexual, and transgender employees.
  • Refer to “sexual orientation” rather than “sexual preference.”
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92
Q

Effective Harassment Policy/Prevention Program Should

A
  • Be in writing.
  • Define what constitutes harassment and declare that it will not be tolerated.
  • Establish a complaint procedure that encourages employees to come forward.
  • Involve training and education programs to focus on the specific culture and needs of a particular workplace.
  • Provide workplace civility and bystander intervention training.
  • Include a prompt and thorough investigation of every complaint and ensure that employees have confidence in the process.
  • Provide for an investigation that results in corrective action if it is determined that unlawful harassment has occurred.
  • Use a variety of methods to communicate the policy to management and employees.
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93
Q

Purpose of Core Wage and Hour Regulations

A
  • Set a minimum wage for certain workers
  • Regulate the number of hours certain individuals must work before being entitled to overtime compensation
  • Restrict the hours and conditions of employment for minors
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94
Q

Fair Labor Standards Act (FLSA)

A
  • Also known as Wage and Hour Law
  • U.S act
  • Purpose: to protect workers and address conditions that burdened the American economy during the great depression
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95
Q

Fair Labor Standards Act (FLSA) Establishes

A
  • Minimum wage
  • Overtime pay
  • Youth employment
  • Recordkeeping standards affecting full- and part-time workers in the private sector and in federal, state, and local governments
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96
Q

FLSA affects these employers

A
  • Public and private
  • At least $500,000 annual dollar volume of business (few exceptions)
  • Applies to organizations with employees who engage in interstate commerce or the production of goods for interstate commerce
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97
Q

Interstate Commerce and FLSA

A
  • Business with employees who handle, sell, or work on goods or materials being moved in or produced for interstate commerce
  • Includes employees who travel across state lines and those who use mail, telephone, internet, or other means to communicate across state lines
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98
Q

FLSA covers these employees regardless of dollar volume of business

A
  • Hospitals
  • Institutions that 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
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99
Q

FLSA and Contractors

A
  • Employees are covered by FLSA regulations
  • Independent Contractors are not covered by FLSA regualtions)
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100
Q

Criteria for independent contractors

A
  • Ability to set own hours and determine sequence of work
  • Work by the project rather than having a continuous relationship with the employer
  • Paid by the job (rather than by the hour or pay period)
  • Opportunity for profit and loss
  • Provide own tools and training
  • Be self-employed and holding oneself out as such
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101
Q

IRS 3 Considerations of Contractors

A
  1. Behavioral control
  2. Financial control
  3. Relationship of the parties
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102
Q

Behavioral Control IRS Considerations of Contractors

A

Facts that show if the organization has the right to:

  • Driect and control how the worker does the task
  • Which worker is hired - include type and degree
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103
Q

Financial Control IRS Considerations of Contractors

A

Facts that show whether the organization has a right to control the business aspects of the worker’s job

Ex:

  • How the worker is paid
  • Extent of worker’s investment
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104
Q

Relationship of Parties IRS Consideration of Contractors

A

Facts that show the parties’ type of relationship

ExL

  • If the organization provides worker with employee benefits
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105
Q

Requirements for an employee to be exempt

A
  • Minimum salary
  • Paid on salary basis (without improper deductions)
  • Primary duties

Must be paid on salary basis with guarenteed minimum no matter how many hours worked per week

Minimum is no less than $455 per week

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106
Q

FLSA Non-exempt employees

A
  • Workers paid less than $23,660 per year or $455 per week
  • Employee compensation on hourly basis (aside from certain computer, outside sales employees, teachers, and a few others
  • Primary duties
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107
Q

Primary Duty

A
  • Main or most important duty of the position
  • To be exempt, this must be the performance of the employees work
    • No particular percentage required but the lower total percentage, the greater risk
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108
Q

FLSA “White-Collar Exception”

A
  • Includes executive, administrative and professional (EAP) employees as well as computer and outside sales position
  • Released “overtime” rule for this population and made them eligible for overtime
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109
Q

Safe-Harbor Provision

A
  • Prevents employer from losing an overtime exemption for imporper pay deductions - regarless of the reason for the improper deductions
  • 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.
110
Q

Willful Violations of Safe Harbor

A

If employer continues willfully violating after receiving employee complaints, will remove employer from safe harbor

111
Q

Blue-Collar Workers and DOL

A
  • Those who perform work involving repetitive operations with their hands, physical skill, and energy
  • Always non-exemp regardless of how high their compensation is
112
Q

Military Training and blue-collar work

A
  • Not sufficient to meet requirements of professional exemption
    • Only applies to employees in occupations who have recognized professional status.
  • Veterans working in traditionally blue-collar positions will not find themselves subject to white-collar exemption due to military training/experience
113
Q

Time worked as it applies to overtime

A
  • FLSA requires that overtime be paid on time worked, not time compensated.
    • No overtime need be paid on: sick pay, holiday pay, vacation pay, jury duty pay, or similar compensation for unworked days.
  • Applies to time that goes over 40 in any workweek
114
Q

Workweek

A
  • Any fixed, recurring period of 168 consecutive hours (7 days times 24 hours = 168 hours)
  • Must be consistent week to week
115
Q

Compensatory time as it applies to overtime

A
  • Provides time off instead of wage payments
  • Rate is no less than 1.5 hours per 1 hour OT
  • Applies to public sector (federal, state and local governments)
  • Not allowed in the private sector
    • Includes organizations not controlled by the government (privately owned businesses and non-profits)
116
Q

FLSA and Breaks

A
  • Employers must be sure non-exempt employees are fully relieved of their duties during lunch and other unpaid breaks
  • Lunch and unpaid breaks need to be at the length required by federal and state law
117
Q

FLSA Child Labor Provision

A
  • Restricts hours and conditions of employment for minors
  • Protects children under 18 from “oppressive” employment conditions
  • Employers should obtain employment and/or age certificate
  • Designed to protect educational opportunities of youth
118
Q

Employment and/or age certificate

A
  • Approved by the Wage and Hour Division of the DOL
  • Usually issued by the appropriate state agency of the minor’s school
119
Q

Exceptions to Minimum Wage

A
  • 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.
120
Q

FLSA Enforcement

A

Enforced by the Wage and Hour Division of DOL

121
Q

FLSA claims

A
  • Complaints can be created by any employee covered by the FLSA
  • Investigator
    • May visit worksite
    • Review employer’s pay practicies and status determinations
    • Conference between investigator and employer
    • If settlement is not agreed, employer can be taken to court by either secretary of labor or employer
  • Lawsuit may be scheduled without going through the DOL
122
Q

FLSA penalties

A
  • Liable to employee for unpaid comission and equal amount as liquidated damages
  • 2 year statute of limitations can be extended to 3 if willful violation by employer
  • Attorney fees and legal costs may also be provided
123
Q

When State Law Differs From FLSA

A

Whenever state and federal laws or regulations differ, follow what most benefits the employee

124
Q

Portal-to-Portal Act

A
  • Amended FLSA
  • Defined additional rules of hours worked
    • Changing time
    • Arriving early/beaks
    • On call time
125
Q

Portal-to-Portal Act payment of employee restricted hours

A

Hours that the employer restricts employee’s activities and does not allow pesonal business, including overtime

126
Q

Portal-to-Portal Act payment of on call time

A

Unpaid if employee is off permise and otherwise not restricted

127
Q

Portal-to-Portal Act time at office payment

A
  • Unpaid if employee arrives before work
    • Employee should not do work at this time
  • Waiting time in middle of shift
    • Paid (ex: equipment breaks down)
128
Q

Portal-to-Portal Act breaks

A
  • =Dependent on state law and collective bargaining
  • Rest periods of 5-20 min are paid
  • Meal breaks are not considered hours worked
129
Q

Portal-to-Portal Act changing time

A

Paid if required for job, if optional it will not likely be paid

130
Q

Portal-to-Portal Act Commuting Time

A
  • Is not paid time, even when employee uses organization vehicle
  • Nonexempt employees who drive vehicles with essential tools or equipment of employers from home to work site may include travel pay
131
Q

Portal-toPortal Act Workday Travel

A
  • Employees who travel in the course of a workday, such as from one work location to another
  • Entitled to compensation for their travel time.
  • Travel to work-related meetings is compensable.
132
Q

Out-of-town travel during the course of a day FLSA

A
  • When an employee who normally works at one location is sent out of town on a single-day trip, the time spent traveling is work time.
  • Time spent traveling to and from the airport may be considered the equivalent of the home-to-work commute and not compensable work time.
133
Q

Overnight travel FLSA

A
  • An employee who travels away from home overnight is not working when he or she is a passenger on an airplane, train, boat, bus, or automobile outside of regular work hours.
  • Time employee spends traveling as a passenger on a weekend will be counted as work time if the travel cuts across the hours that the employee would normally work during the week.
  • Any time that an employee spends working while a passenger must be counted and paid as work time.
134
Q

Time in conferences, meetings, or seminars do not need to be compensated if

A
  • Attendance is voluntary
  • Attendance is outside of the employee’s regular work hours
  • Event is not directly job related
  • Employee preforms no productive work during this period
135
Q

Travel that is compensable by contract, custom, or practice

A

Must be counted as work time regardless of the limitations of the law

136
Q

Equal Pay Act (EPA)

A
  • Prohibits wage discrimination by requiring equal pay for equal or “substantially equal” work performed by men and women
  • Amended FLSA.
  • Enforced by EEOC
137
Q

Equal Pay Act: Equal Work Factors

A
  • Skills
  • Effort
  • Responsibility
  • Working conditions
138
Q

EAP pay desparities can be based on

A
  • Seniority
  • Merit
  • Quality or quantity of work.
  • Geographic differences
  • Any factor other than sex.

Union riles and prevaling pay for the market is not permitted

139
Q

EAP plantiff must have a prima facie case

A
  • Prima facie - Minumum amount of evidence employee must show to have a claim as a matter of law
  • Law does not address compariable worth
140
Q

Comparable worth

A
  • Pay differentials between men and women who perform comparable, but not equal work
  • Looks at different jobs that require comparable skills, effort, responsibilities and working conditions
  • Not a considerable factor in EPA
  • May be used in some states and public jurisdictions
141
Q

Employee Retirement Income Security Act (ERISA)

A
  • Created minimum standards to ensure that employee benefit and pension plans are set up and maintained in a fair and financially sound manner.
  • Designed to protect participants in pension and welfare benefit plans and their beneficiaries
142
Q

ERISA and Employer Retirement or Welfare Plans

A
  • Employers are not required to offer a retirement or welfare benefit plan
  • If plan exists, it must meet the requirements of the Internal Revenue Code and ERISA in order for employers and participating employees to receive available tax advantages.
143
Q

Enforcement and jurisdiction for ERISA

A
  • Split across:
    • DOL
    • IRS
    • Pension Benefit Guaranty Corporation.
  • DOL
    • Reporting, disclosure, and fiduciary responsibility.
  • IRS
    • Tax-related matters involving benefit plans (e.g., funding and eligibility).
144
Q

Pension Benefit Guaranty Corporation (PBGC)

A
  • Insures payment of certain pension plan benefits in the event private-sector defined benefit pension plans lack sufficient funds to pay promised benefits
  • Covered plans or their spouses are required to pay permiums to PBGC
  • PBGC guarantees payment of vested benefits (up to a maximum limit) to employees covered by these pension plans.
  • Does not insure retirement plans that do not promise specific benefit amounts—defined contribution plans such as profit-sharing or 401(k) plans.
145
Q

ERISA employer requirements

A
  • Fiduciary Duties
  • Eligibility Requirements
  • Vesting Requirements
  • Communication requirements
  • Reporting requirements
146
Q

Fiduciary Duties of ERISA employer requirements

A
  • Plan must be operated for the exclusive benefit of the participant and their beneficiaries
  • The plan fiduciaries must follow the prudent person rule with handling, investment and management of assets
147
Q

Prudent person rule

A

States that a fiduciary of a plan covered by ERSIA has legal and financial obligations not to take more risks when investing employee benefit program funds than a reasonably knowledgeable, careful investor would under similar circumstances

148
Q

Eligibility Requirements of of ERISA employer requirements

A
  • Minimum eligibility requirements for retirement plan
    • Age of 21 and completion of 12 months of service
  • Employers are able to make change to plan in favor of employees (ex: age 18 not 21)
149
Q

Vesting Requirements of ERISA employer requirements

A

The minimum vesting requirements differ between defined benefit plans and defined contribution plans

150
Q

Vesting

A

Process by which a retirement benefit becomes nonforfeitable

151
Q

Cliff Vesting

A

Benefits become 100% nonforfitable after participant has completed a certain number of years

152
Q

Graded Vesting

A

Benefits become incrementally nonfofeitable as participant completes each specified number of years of service

153
Q

Communication Requirements of ERISA employer requirements

A
  • Requires summary plan descriptions (SPDs) to participants
  • Issued when employee begins participating in plan and at least once every 5 years after.
  • If plan is modified - materials need to be distributed to participants to describe changes or issue new summary plan description
154
Q

Summary plan descriptions (SPDs)

A
  • Summaries show participant rights, benefits and responsibilities
  • Should be written to be easily understood.
155
Q

Summary plan descriptions (SPDs)

A
  • Summaries show participant rights, benefits and responsibilities under the plans should be designed and written so they are easily understood by reader.
156
Q

ERISA reporting requirements

A
  • Annual report (Form 5500) must be filed with IRS and made available for participants to inspect
  • Form is required for all qualified retirement plans and welfare benefit plans that have at least 100 employees participating
157
Q

Sarbanes-Oxley Act (SOX)

A

Requires that all publicly held companies establish internal controls and procedures for financial reporting to reduce the possibility of corporate fraud

158
Q

Sarbanes-Oxley Act (SOX) Impact on Defined Contribution Plans

A
  • Requires administrators of 401(k) and other defined contribution plans to provide notice to affected participants and beneficiaries at least 30 but no more than 60 days in advance of a blackout period
  • Added civil penalty for failure/refusal to provide timely notice of a blackout period
  • prohibits directors and executives of public companies from engaging in trading that involves company stock held outside of the plan during blackout period if blackout period prevents at least 50% of the plan participants from engaging in transactions involving in company stock held in their plan accounts
159
Q

Blackout Period and Defined Contribution Plans

A
  • When participants/beneficiaries cannot
    • Direct their investments
    • Diversify assets
    • Obtain loans or distributions
  • Period of more than 3 consecutive business days
  • May last 2-6 weeks
  • Typically occur when there is a new plan provider or a change in investment options
  • Ongoing record keeper or investment option manager completes final processing of participant activity and performs a final reconciliation of accounts.
  • New record keeper or investment option manager receives data, loads it on its system, and checks for accuracy.
160
Q

30-60 Day Blackout Notice Must Include

A
  • Reasons for the blackout period.
  • Identification of the investments and participant rights that are affected.
  • Expected beginning date and length of the blackout period.
  • Statement that individuals should evaluate the appropriateness of their current investment decisions in light of their inability to direct or diversify their accounts during the blackout period.
161
Q

SOX Whistleblower Provision

A
  • Prohibits publicly traded companies (as well as their officers, employees, contractors, subcontractors, or agents) from taking any adverse employment action against employees because of protected whistleblowing activities.
  • The act protects employees who report conduct that they “reasonably believe” violates federal securities laws, the rules of the Securities and Exchange Commission, or any federal law relating to fraud against shareholders.
162
Q

Employees are protected under the SOX Whistleblower Provision when they

A
  • Raise the allegations of fraud to either a federal agency or a member of the organization who has authority to “investigate, discover, or terminate misconduct.”
  • File, testify in, participate in, or assist in a proceeding filed or about to be filed related to securities fraud.
163
Q

Ledbetter v. Goodyear Tire and Rubber Company

A

Supreme Court ruled that claims of sex discrimination in pay under Title VII were not timely because discrimination charges were not filed with the EEOC within the required 180-day time frame

164
Q

Lilly Ledbetter Fair Pay Act

A

Overturned the Ledbetter vs Goodyear 2007 U.S. Supreme Court Decision

165
Q

Lilly Ledbetter Fair Pay Act Statute of Limitation Changes

A
  • Statute of limitations resets as the employer issues each allegedly discriminatory paycheck
  • Allows employees and their families or heirs to be able to file a discrimination lawsuit against employer regarding benefits such as salary-based defined benefit and contribution-based defined contribution retirement plan payouts and salary-based life insurance
166
Q

Consolidated Omnibus Budget Reconciliation Act (COBRA)

A
  • Gives individuals and their dependents who would lose coverage due to COBRA qualifying event the opportunity to receive health-care coverage under the employer’s group health plan at the individual’s expense
  • Cost is full premium for coverage.
  • The plan may additionally choose a 2% administrative fee
167
Q

COBRA Events

A
  • Termination of employment
    • Not including gross misconduct
  • Reduction in hours
  • Employee is disabled at time of reduction in hours or termination
  • Divorce or death of employed spouse
  • Dependent child loses eligibility status
168
Q

COBRA coverage ends when

A
  • Employee or dependent stops making payments
  • Becomes eligible for medical insurance from new employer
  • Gains Medicare coverage
  • When employer terminates health care plan (ex: goes out of business)
169
Q

COBRA compliance

A
  • Administered by DOL and IRS
  • Failure to comply include penalties and payments of incurred medical expenses
  • Employer is resonsible legally when using third-party administrator
170
Q

Time Restrictions of COBRA

A
  • COBRA notifications must be submitted at a particular time
  • Employees must make COBRA elections within 60 days of the day they lose coverage or date notified to elect COBRA (whichever is later)
171
Q

Patient Protection and Affordable Care Act (PPACA) and COBRA

A
  • Patient Protection and Affordable Care Act (PPACA) amends COBRA
  • Requires dependents to have health insurance until 26
172
Q

Amendment of COBRA by the Health Insurance Portability and Accountability Act

A
  • 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.
173
Q

Family and Medical Leave Act (FMLA)

A
  • Provides employees with up to 12 weeks of unpaid leave to care for family members or because of a serious health condition of the employee.
  • Time for certain care-giving, medical, military and family needs
174
Q

FMLA Covers What Organizations

A
  • Private-sector employers with 50 or more employees (full- or part-time) for 20 or more workweeks in the current or preceding calendar year.
  • Private employers
  • Nonprofit organizations
  • Public agencies (regardless of the number of employees)
  • Congress
175
Q

FMLA Eligibility

A
  • Worked at least 12 months (total) for the employer
  • At least 1,250 hours in the 12-month period preceding the commencement of the leave
  • At a site within 75 miles of which 50 or more employees work.
176
Q

DOL documents regarding employer and employee rights include

A
  • Guidance on how the FMLA applies when there is no legal or biological parent-child relationship.
  • Definition of spouse
  • Clarification of intermittent leave (when leave is taken a little at a time, as needed).
  • Medical certification requirements and under what circumstances an employer is permitted to contact an employee’s health-care provider.
  • Terms for fitness-for-duty certification (both for the initial return to work and any periodic requirements).
  • Provisions for health benefits continuation while the employee is on approved FMLA leave and how COBRA is triggered if the employee does not return to work.
  • Reinstatement rights regarding an employer’s responsibility to restore the employee to the same position that the employee occupied prior to FMLA leave or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
  • Modified-duty programs when the employee returns to work from FMLA leave.
  • Provisions for cost containment and how employers can integrate leave benefits (sick or vacation days), workers’ compensation leave, and/or disability insurance with FMLA leave to reduce the costs of FMLA compliance.
177
Q

FMLA serious health condition is defined as

A
  • Requiring requiring inpatient hospital, hospice, or residential care or continuing treatment by a health-care provider (with multiple definitions).
  • Employee incapacity for more than 3 consecutive, full calendar days plus two visits to a health-care provider or one visit to a health-care provider plus a regimen of continuing treatment.
  • The first health-care provider visit must occur within seven days of the first day of incapacity.
  • Where applicable, the two visits must occur within 30 days of the beginning of the period of incapacity, absent extenuating circumstances.
  • For chronic serious health conditions, the employee must visit a health-care provider at least twice per year.
178
Q

National Defense Authorization Act (NDAA)

A
  • U.S. act that expanded FMLA leave for employees with family members who are covered members of the military
  • Two new FMLA events
    • Qualifying exigency leave
    • Military caregiver leave
179
Q

Qualifying exigency leave of NDAA

A
  • Provides up to 12 work weeks of FMLA leave due to a spouse, son, daughter, or parent:
    • Being on covered active duty
    • Been notified of an impending call or order to covered active duty in the armed forces.
180
Q

Covered Active Duty

A
  • Duty during deployment with the armed forces to a foreign country.
  • National Guard - duty during deployment of member in armed forces to foreign country under call or order to active duty in contingency operation
181
Q

Exigency leaves under FMLA military leave protections

A
  • 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
182
Q

Military caregiver leave

A
  • Provides up to 26 work weeks of unpaid FMLA leave during a single 12-month period
  • Eigible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness.
183
Q

Uniformed Services Employment and Reemployment Rights Act (USERRA)

A
  • Protects the employment, reemployment, and retention rights of persons who serve or have served in the uniformed services.
  • Applies to virtually all employers public and private regardless of size
184
Q

USERRA DOL regulatory provisions:

A
  • Confirm that applicants are covered by USERRA if an organization rejects a candidate or withdraws an offer of employment due to pending military leave.
  • Require employees or an appropriate representative of the military to provide oral or written notice of the need for leave (according to Department of Defense regulations cited in the USERRA regulations, 30 days when feasible).
  • Allow an employee to take military leave for up to five years (extended in some circumstances, such as an order to remain on active duty because of a war or national emergency that is unrelated to training).
  • Clarify the types of military service covered by USERRA.
  • Give employees on military leave the same non-seniority-based benefits and rights generally provided (by contract, agreement, policy, practice, or plan) to other employees with similar seniority, status, and pay on other types of leaves.
  • Give employees on military leave the same seniority-based benefits they would have received if they had not taken military leave.
  • Give covered employees the right to choose whether they want to use paid leave, if any is available during their absence for covered service.
  • Require that military leave not create a break in service for retirement plan purposes, including participation, vesting, and accrual of benefits.
  • Establish specific time frames for employees on military leave to apply for reemployment.
  • Define employers’ reemployment obligations, including timing of reemployment, reemployment position, and discharge restrictions.
  • Provide additional protection for disabled veterans.
185
Q

Veterans Opportunity to Work (VOW) to Hire Heroes Act amended USERRA

A
  • Recognizes claims of hostile work environment on account of military status
  • Prohibits discrimination
186
Q

Patient Protection and Affordable Care Act (PPACA)

A
  • 2010 U.S. law
  • Obamacare or Affordable Care Act (ACA)
  • Requires virtually all citizens and legal residents to have minimum health coverage
    • Falure to have coverage is a tax penalty
  • Requires employers with more than 50 full-time employees to provide health coverage that meets minimum benefit specifications or pay a penalty.
187
Q

Patient Protection and Affordable Care Act (PPACA) Provisions

A
  • Lifetime maximum benefit limits
  • Preexisting conditions
  • Small employer health-care tax credit
  • Preventative care
  • Dependent coverage
  • Uniform explanation of coverage
  • Notice of material modifications
  • Annual benefit limits
  • State health marketplaces
  • Cadillac plan tax
188
Q

National Federation of Independent Business v. Sebelius (2012) outcomes

A
  • Two key PPACA provisions
    • Medicaid expansion
    • Individual mandate
  • Removed the PPACA provision conditioning all federal Medicaid funds on a state complying with expanded Medicaid coverage requirements
189
Q

Medicaid

A
  • Provides federal funding to states to assist
190
Q

Occupational Safety and Health (OSH) Act

A
  • Established the first national policy for workplace safety and health
  • Requires employes to provide safe and healthful working conditions for employees
  • Mission is to help employers and employees reduce on-the-job injuries, illnesses and deaths
  • Sets responsibilities and rights for employees and employers
191
Q

Occupational Safety and Health (OSH) Act Covers

A
  • Covers almost all workers in the country
  • Exceptions
    • Family farms only worked by family members
    • Self-employed workers
192
Q

Occupational Safety and Health (OSH) Act objectives

Resource card

A
  • Encourage reducing safety and health hazards.
  • Encourage perfecting safety and health programs.
  • Authorize the secretary of labor to establish mandatory occupational health and safety standards.
  • Create an Occupational Safety and Health Review Commission (OSHRC) to hear appeals under the act.
  • Provide health and safety research through the National Institute for Occupational Safety and Health (NIOSH).
  • Discover the causal connections between diseases and work and establish appropriate standards to eliminate industrial disease.
  • Establish medical criteria to ensure that no employee will suffer diminished health, functional capacity, or life expectancy.
  • Implement training programs to improve the quantity and quality of people engaged in the safety and health field.
  • Provide an effective program of enforcement of safety and health standards.
  • Encourage the states to assume responsibility for the administration and enforcement of safety and health regulations.
  • Provide appropriate reporting procedures with regard to safety and health.
  • Encourage joint labor-management efforts to reduce injuries and disease.
193
Q

Occupational Safety and Health (OSH) Employee Responsibilities

A
  • Employees are not cited for violations of their responsibilities
  • States that each employee shall comply with the standards, rules, regulations and orders issued under the act
194
Q

General Duty Clause

A
  • Statement in OSHA
  • Requires employers subject to OSHA to provide employees with a safe and healthy work environment.
195
Q

OSHA employee rights include

A
  • Demand safety and health on the job.
  • Eequest inspections
  • Have an authorized employee representative accompany an inspection.
  • File a complaint.
  • Be informed of workplace hazards.
  • Request action from the employer to correct hazards or violations.
  • File a discrimination complaint.
  • Receive training.
196
Q

OHSA representatives will help employees by

A
  • Respond promptly to their requests for correction of serious hazards at work.
  • Advise employees of their safety and health rights and responsibilities.
  • Complete, within 90 days, investigations of charges of employer discrimination against employees who report unsafe conditions to OSHA.
  • Promote employee participation in health and safety programs.
  • Issue a citation and proposed penalty within six months of a violation’s occurrence.
197
Q

OSHA Employer Responsibilities

A
  • Keep employees informed
  • Keep employees healthy and safe
198
Q

OSHA Employer Responsibility of Keeping Employees Informed

A
  • Show OSHA poster where it can be seen and read by all employees.
  • Make copies of the act and relevant OSHA rules and regulations available to employees upon request.
  • Post OSHA citations at or near the work site involved until the alleged violation has been abated or for three working days, whichever is longer.
  • Notify any employee who has been/is being exposed to hazardous agents at levels exceeding those in a mandatory OSHA standard and inform exposed employees of corrective action being taken.
  • Maintain accurate records of and periodically report on work-related deaths and injuries and illnesses beyond first aid; permit employees to review records.
  • Permit an authorized employee representative to accompany the OSHA compliance officer during any physical workplace inspection
199
Q

OSHA Employer Responsibility of Keeping Employees Healthy and Safe

A
  • Correct cited violations within the period prescribed or agreed to by OSHA.
  • Allow employees to refuse abnormally dangerous work when faced with an imminent danger of death or serious injury.
    • Some state laws also provide a procedure for employees to follow when protesting unsafe working conditions.
  • Provide employees with personal protective equipment required for the job, at the employer’s expense, except for footwear that can be used off the job and prescription eyewear.
  • Provide medical surveillance of employees when required by OSHA standards.
  • Provide training mandated under specific OSHA standards.
  • Ensure that persons directing work understand and enforce all applicable safety laws, rules, and regulations.
200
Q

Employer Can be Cited Under OSHA General Duty Clause for Employee Injury and Fatalities Where

A
  • Employer failed to keep the workplace free of a hazard.
  • The hazard was recognized either by the employer individually or by the employer’s industry generally.
  • Recognized hazard was causing or was likely to cause death or serious physical harm.
  • There was a feasible means available that would eliminate or materially reduce the hazard.
201
Q

OSHA Employer Rights

A
  • Monitor OSHA’s announcements of its intent to propose new regulations and participate in the rule-making process by attending public hearings on the proposed rules and submitting comments on the rules to the extent that they affect their workplace.
  • Be active in their industry association’s involvement in job safety and health and take an active role in developing safety and health standards through participation in OSHA Standards Advisory Committees, through nationally recognized standards-setting organizations, and through evidence and views presented in writing or at hearings.
  • Apply to OSHA for a temporary variance from a standard if unable to comply because of the unavailability of materials, equipment, or personnel needed to make necessary changes within the required time.
  • Apply to OSHA for a permanent variance from a standard if the employer can furnish proof that the facilities or method of operation provides employee protection at least as effective as that required by the standard.
202
Q

Key OSHA Standards

A
  • Emergency Exit or Evacuation Procedures
  • Occupational Noise Exposure
  • Machine Guarding
  • Hazard Communication
  • Control of Hazardous Energy
  • Bloodborne Pathogens
  • Confined Space Entry
  • Personal Protective Equipment
  • Process Safety Management
203
Q

Emergency Exit or Evacuation Procedures: OSHA Standard

A
  • Also known as Means of Egress standard.
  • Provides guidelines for preparing an emergency action plan and includes specifications regarding exits and maintenance of emergency systems
204
Q

Occupational Noise Exposure: OSHA Standard

A
  • Also known as Hearing Conservation standard.
  • Requires employers to provide for effective engineering or administrative controls to reduce unsafe noise levels in the workplace
205
Q

Machine Guarding: OSHA Standard

A

Provides general requirements for all machinery to protect operator and other employees.

206
Q

Hazard Communication: OSHA Standard

A
  • Also known as Employee Right-to-Know Law.
  • Requires use of labeling, safety data sheets, training, orientation for new and transferred employees, and written hazard communication programs to inform employees of hazardous chemicals in the workplace
207
Q

Control of Hazardous Energy: OSHA Standard

A

Requires action so equipment cannot be activated (lockout) and signs or labels (tagout) to be attached to dangerous equipment that should not be activated.

208
Q

Bloodborne Pathogens: OSHA Standard

A
  • Requires employers to protect employees from potentially infectious materials
  • Needlestick Safety and Prevention Act revised the standard to require employers to minimize employees’ exposure to blood from sharps injuries through annual reviews and employee input.
209
Q

Confined Space Entry: OSHA Standard

A
  • Addresses concerns over adequate oxygen content in the air, toxic or flammable substance exposure, and physical exposures for workers in confined spaces.
  • Requires space-entry restrictions, rescue procedures, and written safe-entry program.
210
Q

Personal Protective Equipment: OSHA Standard

A
  • Protects employees from environmental, process, chemical, mechanical, or radiological hazards capable of causing injury or impairment
  • Sets criteria for acceptable equipment designs.
211
Q

Process Safety Management: OSHA Standard

A

Aimed at preventing or minimizing the effect of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.

212
Q

OSHA Record Keeping Requirements

A
  • Posting requirements
  • All organizations with more than ten employees, except low-risk business must report all employee occupational injury and illness data
213
Q

Occupational injury

A
  • Injury that results from a work-related accident or exposure involving a single incident in the work environment.
    • Ex: cut, fracture, sprain or amputation
214
Q

Occupational illness

A

Medical condition or disorder, other than one resulting from an occupational injury, caused by exposure to environmental factors associated with employment.

215
Q

OSHA Forms

A
  • OSHA’s Form 300: Log of Work-Related Injuries and Illnesses
  • OSHA’s Form 300A: Summary of Work-Related Injuries and Illnesses
  • OSHA’s Form 301: Injury and Illnesses Incident Report
216
Q

OSHA Data Initiative (ODI)

A
  • Work-related injury and illness data from employers within specific industry and employment size specifications
  • Data is used to show level of injuries and illnesses among different industries, firms or operations within a single firm
217
Q

OSHA Inspections

A
  • Does not need to give advanced notice and can be conducted at random or in response to complaints about unsafe conditions
  • With warrent
    • Employer must submit to inspection
  • If there is not a warrent
    • Concent to the inspection
    • Refruse and require OSHA to provide a search warrent
218
Q

OSHA penalties are assessed on

A
  • Severity of the violation
  • Size of the business
  • Good faith efforts of employer to abade by cited violations
  • Employers previous violations

Employer has the right to challenge a citation

219
Q

Drug-Free Workplace Act

A

U.S. law that requires federal contractors with contracts of $100,000 or more as well as recipients of grants from federal government to certify that they are maintaining a drug-free workplace

220
Q

Drug-Free Workplace Act Requirements Include

A
  • Developing a policy that prohibits the unlawful manufacturing, distribution, possession, or use of a controlled substance in the workplace.
  • Specifying the actions that will be taken against those who violate the policy.
  • Providing a copy of the policy and the consequences of violating the policy to employees, including employees having to inform the employer within five days if they are convicted of a criminal drug offense occurring in the workplace.
  • Establishing a drug-awareness program that informs employees about the dangers of drug use in the workplace, the availability of drug treatment and counseling, and the employer’s drug-free policy and penalties for drug violations.
221
Q

Marijuana Laws

A
  • Employers are generally not required to have employees under the influence of marijuana
    • Unless there is an accomidation
  • Be aware of statutes in states that allow marijuana
222
Q

Drug-Free Workplace Act Requirements: Employer requirements in case of drug-related convictions

A
  • Notifying the federal contracting agency within ten days of receiving notice of any employee conviction of a criminal drug offense occurring in the workplace.
  • Imposing a sanction on a convicted employee or requiring satisfactory participation in a rehabilitation program.
223
Q

National Labor Relations Act (NLRA)

A
  • Protects and encourages the growth of the union movement
  • Establishes workers’ rights to organize and bargain collectively with employers.
  • Established the National Labor Relations Board (NLRB)
224
Q

National Labor Relations Act (NLRA) Agency

A

National Labor Relations Board (NLRB).

225
Q

Labor-Management Relations Act (LMRA)

A
  • Also called the Taft-Harley Act
  • Amended the NLRA
  • Imposed several restrictions and requirements on unions.
226
Q

Labor Management Reporting and Disclosure Act (LMRDA)

A
  • Further amended the NLRA
  • Imposed regulations on internal union affairs and the relationship between union officials and union members
227
Q

NLRB Covers

A
  • All employers participating in interstate commerce
  • Does not cover
    • Governments
    • Religious schools
    • Agriculture employers
    • Railroad
    • Airline
228
Q

NLRB enforces the self-organization rights of employees to

A
  • Form, join, or assist labor organizations.
  • Bargain collectively through representatives of their own choosing.
  • Engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.
  • Refrain from any or all such activities.
229
Q

NLRB enforcement

A
  • Union election process
  • Determines standards for union and investigates claims of unfair labor practices
230
Q

Unfair Labor Practice (ULP)

A

Occurs when union or employer violates Section 8 of National Labor Relations Act

231
Q

Common employer ULPs include:

A
  • Interfering with employees as they engage in concerted activity.
  • Dominating or assisting a labor union.
  • Retaliating against any employee because of union activity.
  • Retaliating against an employee for filing charges with the NLRB.
  • Refusing to bargain collectively in good faith with a union.
  • Promising or giving benefits to employees who oppose a union (e.g., rewarding employees who infiltrate or spy on union meetings or question other workers about their support for a union).
232
Q

If Employer Commits ULP

A
  • NLRB will order guilty party to cease and deist from unlawful behavior and to post notice informing workers of board’s decision
  • If employee is injured by ULP - NLRB may order employer to compensation the employee
    • Ex: reinstatement, payment of lost wages and benefits, seniority credits
233
Q

NLRA Covered Activities

A
  • 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.

May also include when one employee acts on authority of one or more coworkers

234
Q

Weingarten rights.

A

The right of unionized employees to have another person present during certain investigatory interviews

235
Q

NLRB v. Weingarten

A
  • Labor relations case
  • Dealt with right of unionized employee’s right to have another person present during certain investigation emails
236
Q

Investigatory interview

A

When a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his or her conduct.

237
Q

NLRB v. Weingarten outome

A
  • Management must inform the union representative of the subject of the interview.
  • The representative must be allowed to speak privately with the employee before the interview.
  • The representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
  • The representative cannot tell an employee what to say but may advise the employee as to how to answer a question.
  • At the end of the interview, the representative can add information to support the employee’s case.
238
Q

Limitations of Weingarten ruling

A
  • A bargaining unit employee’s right to have a union representative present applies only to an investigatory interview
    • One conducted to gather facts that may lead to a disciplinary action. It does not apply to other types of meetings, such as where the employer is merely informing the employee of a decision it has already made to impose discipline.
  • The person attending the investigatory interview must be affiliated with the union that represents the employee. An employee can be prohibited from having an attorney or a relative present.
  • If the interview proceeds, the employer is not required to bargain with the representative or to permit him or her to disrupt the proper conduct of the interview.
239
Q

Lechmere, Inc. v. NLRB

A

Rruled that an employer cannot be compelled to allow nonemployee organizers onto the business property

240
Q

Fair Credit Reporting Act (FCRA)

A
  • Regulates the collection and use of consumer credit information
  • Protects privacy of background information and ensures that information supplied is accurate.
241
Q

Fair Credit Reporting Act (FCRA) purpose

A

Protect the privacy and background information of consumer credit is accurate

242
Q

Employer FCRA requirements

A
  • Written notice and authroization
  • Pre-adverse action
  • Adverse action procedures
  • Certifications to credit bureaus
  • Penalties
243
Q

Employer FCRA written notice and authorization employer requirement

A
  • Individual must be notified in writting consisting soley of that notice that a report may be used
  • Notice cannot be incorporated into an employment application
  • Must get person’s written authroization before asking for CRA report
244
Q

Employer FCRA pre-adverse action employer requirement

A
  • Occurs when employer decides not to hire applicant or to take some other adverse action regarding a current employee based in whole or part of the consumer report
  • Applicant/employee
    • Needs to provide copy of report and given a reasonable amount of time to present evidence challenging the information in the report
    • Needs to be provided a copy of the “A Summary of Your Rights Under the Fair Credit Reporting Act”
245
Q

Employer FCRA adverse action procedures employer requirement

A
  • After the employer has taken adverse action based in whole or in part on the consumer report
  • Employer must give the applicant/employee notice that such action has been taken.
246
Q

Employer FCRA certification to credit bureaus employer requirement

A

Credit bureaus require employers to certify that they are in compliance with the FCRA and that they will not misuse any information in the report in violation of federal or state laws.

247
Q

Employer FCRA penalties employer requirement

A
  • Plaintiffs who prove willful noncompliance with the act
    • Actual damages (between $100 and $1,000)
    • Punitive damages
    • Costs—including attorneys’ fees.
  • Negligent noncompliance subjects an employer to actual damages, costs, and attorneys’ fees.
248
Q

Fair and Accurate Credit Transactions Act (FACT Act)

A
  • Amends Fair Credit Reporting Act
  • Frees employers who use third parties to conduct workplace investigations from the consent and disclosure requirements of the Fair Credit Reporting Act in certain cases.
249
Q

Immigration Reform and Control Act (IRCA)

A
  • Prohibits discrimination against job applicants on the basis of national origin or citizenship
  • Establishes penalties for hiring undocumented workers.
250
Q

Employers who hire someone who is not entitled to work in this country face

A

Civil and/or criminal penalties.

251
Q

IRCA is enforced by

A
  • U.S. Citizenship and Immigration Services (USCIS)
    • A branch of Department of Homeland Security
252
Q

Employer Responsibilities with Immigration

A
  • Burden is on employer to verify eligible to work in U.S.
  • First day of employment, I9 document
253
Q

E-Verify

A
  • Checks the I-9 against the records at the Department of Homeland Security and Social Security Administration databases
  • Voluntary for most businesses
    • Some companies are required by state or federal law
254
Q

Employee Polygraph Protection Act (EPPA)

A
  • Prevents private employers from requiring applicants or employees to take a polygraph test for preemployment screening or during the course of employment, with certain exemption
  • Even if it is an exception and test is allowed
    • Employer cannot discriminate or discharge employee/applicants based soly on refusal to take polygraph test or analysis of a test
    • If employee volunteered to take test, they can stop it at any time
255
Q

Those Excluded from Employee Polygraph Protection Act (EPPA)

A
  • Federal, state and local governments
  • Limited times where private sector employee must complete
    • Employee had reasonable suspected involvement in workplace incident that results in economic loss or injury due to employer’s business and where employee had access to the property
    • Prospective employees of armored car, security alarm, and security guard firms that protect facilities, materials, or oprations affecting health and safety, national security or currency and other instruments
    • Prospective employees of pharmaceutical and other firms authroized to manaufacture, distribute or disense controlled substances
256
Q

Violations of Employee Polygraph Protection Act (EPPA) Penalties of Violation

A

Fined and can by sued by an employee or prospective employee to recover lost wages and benefits, attorneys’ fees, and court costs as well as possible equitable relief such as reinstatement and promotion

257
Q

Worker Adjustment and Retraining Notification (WARN) Act

A
  • Requires some employers to give a minimum of 60 days’ notice if a plant is to close or if mass layoffs will occur.
  • Allows displaced workers time to search for a new job and allows government entities to determine whether any assistance may be available for affected workers
    • Potentially reduces the impact of any mass layoff or plant closing.
258
Q

WARN Coverage

A
  • Employers who employ 100 or more
    • Full-time employees, or
    • Full-time and part-time employees who, in the aggregate, work at least 4,000 hours (exclusive of overtime hours) per week at all employment sites.
259
Q

Worker Adjustment and Retraining Notification (WARN) Act Exceptions of 60 Days Rule

A
  • Faltering company
    • Providing notice would ruin opportunity for new capital or business
    • Only applies to plant closings
  • Unforeseeable business circumstances
    • Ex: loss of a key client
  • Natural disaster
260
Q

State laws and WARN acts

A
  • Some states have WARN acts with stricter critera
  • Some have mini warn laws that may apply when federal WARN does not
261
Q

Genetic Information Nondiscrimination Act (GINA)

A
  • Prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance.
  • Employment decisions based on genetic information are inappropriate because genetic information does not tell the employer anything about an individual’s current ability to work.
262
Q

Genetic Information Nondiscrimination Act (GINA) unlawful for employers to get genetic information on individual or family members except

A
  • Inadvertent acquisitions of genetic information
    • Ex: manager overhears
  • For health or genetic services offered by the employer on a voluntary basis, if certain specific requirements are met
  • For purposes of complying with the FMLA
  • Where the employer purchases documents that are commercially available (such as newspapers) or accesses sources (such as websites) as long as the employer is not searching those sources with the intent of finding genetic information
  • For genetic monitoring of the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
263
Q

EEOC Compliant

A
  • Charging parties who believe that they have been discriminated against can file a charge in any field office.
  • Complaint must be filed within 180 days after the commission of the alleged discriminatory practice
    • Some states provide 300 days
264
Q

Considerations in HR record keeping requirements

A
  • Federal and state statutes and regulations
  • If it is an employee, contractor, subcontractor
  • Number of employees
  • Industry, location, business customers
  • Same or similar records
265
Q

Record keeping is important to

A
  • Document and support an organization’s employment actions.
  • Demonstrate the effectiveness of policies and procedures (e.g., through records of actions).
266
Q

If claims is filed or government investigation is indicated HR records

A
  • Docuemnts remotely related to the claim or investigation need to be retained for the duration of the claim or investigation until final disposition (including appeals)
  • This may be longer than the normal retention guidelines
267
Q

HR Record Keeping Must Know

A
  • What records must be kept under each law
  • Retention period for those records
  • Applicability for each law
268
Q

Good records retention includes

A
  • Well-organized records.
  • Establish and implement a record retention and destruction policy.
  • Investigate federal requirements.
  • Investigate applicable individual state requirements.
  • Retain info for the longer period of time when the same or similar records are required by more than one law but the period of retention varies
  • Determine if there are laws regulating employees’ access to their personnel files in the state(s) in which the organization has business operations.
  • Establish a system for auditing the organization’s record keeping (including personnel files).
269
Q

Records during the employee lifecycle

A

Begins before a job candidate is hired and after the employee leaves the organization

270
Q

Considerations when moving Record Keeping from Paper to Computer

A
  • The record-keeping system must have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of the records kept in electronic form.
  • Electronic records must be maintained in reasonable order, in a safe and accessible place, and in such manner as they may be readily inspected or examined
  • The electronic records must be able to be readily converted into legible and readable paper copy as may be needed to satisfy reporting and disclosure requirements or any other obligation under Title I of ERISA.
  • Adequate records management practices must be established and implemented
271
Q

OSHA electronic submission

A
  • Enable OSHA to use its enforcement and compliance assistance resources more efficiently.
  • Improve OSHA’s ability to identify, target, and remove safety and health hazards, thereby preventing workplace injuries, illnesses, and deaths.

All Notecards (32 decks)

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