WORKplace III Flashcards
The Age Discrimination in Employment Act (ADEA)
Passed to prohibit discrimination in the workplace on the basis of age
exceptions to ADEA’s nondiscrimination requirements may occur under the following circumstance
- The employer is adhering to a genuine seniority or benefit plan.
- The employer is disciplining or firing a person for reasonable factors other than age
exceptions to ADEA’s nondiscrimination requirements may occur under the following circumstance
- 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.)
ADEA covers
The ADEA covers all private employers and state and local governments with 20 or more employees, unions with 25 or more members, employment agencies, and apprenticeship and training programs
ADEA covers
Instead of punitive damages, the ADEA provides for doubling of the back-pay damages awarded by the jury for a “willful” violation; compensatory or punitive damages are not allowed.
Older Workers Benefit Protection Act (OWBPA) of 1990 prohibit discrimination in two areas:
- Employee benefits: The act provides guidance on the ADEA requirement that benefits offered to older workers must be equal to the benefits offered to younger works
Older Workers Benefit Protection Act (OWBPA) of 1990 prohibit discrimination in two areas:
- Waivers of claims: The act provides standards that an employee’s waiver of the right to sue for age discrimination must meet in order to be upheld by a court.
As a result of the OWBPA
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.
As a result of the OWBPA
Eligible employees must be provided with certain workplace demographic information as part of a group termination release.
Americans with Disabilities Act (ADA) of 1990
is a landmark civil rights law protecting qualified individuals with disabilities from discrimination in many areas.
passage of the ADA
established many responsibilities relating to this class of individuals for all private and state and local government employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.
The ADA does not cover the federal government when it acts as an employer. The Rehabilitation Act of 1973 (an affirmative action statute) applies to the federal government and its contractors
Section 501 applies only to the federal government as an employer; Section 503 applies only to federal contractors and subcontractors with contracts over $10,000.
To be “qualified” under the ADA, an individual must:
Have the requisite skills, experience, education, licenses, etc.
Be able to perform the essential functions of the job, either with or without reasonable accommodation.
Definition of disability
- Has an impairment that substantially limits one or more major life activities.
- Has a record of such an impairment
- Is regarded as having such an impairment.
Major life activities covered by the ADA include
Walking,seeing, hearing, breathing, thinking, communicating, operation of major bodily functions, transferring/mobility, toileting/personal hygiene, bathing and dressing, and caring for oneself.
ADA Amendments Act (ADAAA) of 2008
While the ADAAA retains the basic definition contained in the ADA, it expands the interpretation of these elements, making it much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of disability
examples of potential reasonable accommodations include the following:
Assigning a reader to help an applicant who is visually impaired
Constructing ramps or providing a wheelchair-accessible desk
Lowering counters or drinking fountains
Designing alternative formats for employee training
Providing a telephone device for a person who is hearing-impaired
Providing alternate work schedules
ADA: employer meeting undue hardship
- The nature and net cost of the accommodation.
- The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources.
ADA: employer meeting undue hardship
3.The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities.
ADA: employer meeting undue hardship
The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.
5 Step process for reasonable accommodation
Step 1: Individual asks for accommodation, directly or indirectly.
Step 2: Identify the barriers to performance of essential job functions for the individual
Step 3: Identify possible accommodations that might be helpful in overcoming the barriers
5 Step process for reasonable accommodation
Step 4: Assess the reasonableness of the accommodations, including whether they are the employer’s responsibility and whether they impose an undue hardship.
5 Step process for reasonable accommodation
Step 5: Choose the appropriate accommodation for the individual
The EEOC describes harassment
as a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 and the ADEA, EPA, GINA, and ADA.
The EEOC tells us that harassment becomes unlawful in the following situations:
When enduring offensive conduct becomes a condition of continued employment
When the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
When an individual is harassed in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit
Quid pro quo
Quid pro quo means “this for that” or “something for something.” Quid pro quo harassment occurs when an employee is forced to choose between giving in to a superior’s sexual demands and forfeiting an economic benefit such as a pay increase or continued employment
EEOC guidelines about sexual harassment state that “. . . unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
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.
Vicarious liability
is a legal doctrine under which a party can be held liable for the wrongful actions of another party. Because of this doctrine, employers are legally responsible for the discriminatory acts of their supervisors and managers and may be for their nonsupervisory employees as well.
These decisions established that an employer’s vicarious liability for supervisor harassment that does not result in tangible employment action is based on two principles:
(1) Employers have the responsibility to take reasonable care to prevent and correct or end harassment (sexual or otherwise) through appropriate intervention, including, if necessary, discipline, and (2) employees have the responsibility to take advantage of preventive and corrective opportunities.
Effective Harassment Policy/Prevention Program
- 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.
Effective Harassment Policy/Prevention Program
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.
FLSA purpose
1.To set a minimum wage for 2.certain workers
To regulate the number of hours those individuals must work before being entitled to overtime compensation
FLSA purpose
3.To restrict the hours and conditions of employment for minors
Fair Labor Standards Act (FLSA) of 1938
establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments.
The FLSA applies to
public and private employers with at least $500,000 in annual dollar volume of business (with some limited exceptions). It also applies to organizations with employees who engage in interstate commerce or the production of goods for interstate commerce.
The FLSA covers the following organizations regardless of the dollar volume of their businesses:
- Hospitals
- Institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises
- Schools for children who are mentally or physically disabled or gifted
The FLSA covers the following organizations regardless of the dollar volume of their businesses:
- Preschools, elementary and secondary schools, and institutions of higher education
- Federal, state, and local government agencies
An employer has no ongoing obligations under the FLSA to self-employed independent contractors.
Therefore, it is critical that the organization clearly identify which of its workers are employees (covered by FLSA regulations) and which are independent contractors (not covered by FLSA regulations).
The following are some critical tests for an independent contractor:
- Having the ability to set own hours and determine sequence of work
- Working by the project rather than having a continuous relationship with the employer
- Being paid by the job (rather than by the hour or pay period)
- Having the opportunity for profit and loss
- Furnishing own tools and training
- Being self-employed and holding oneself out as such
Basics of IRS Independent Contractor Guidance:Behavioral control
Facts that show whether the organization has a right to direct and control how the worker does the task for which the worker is hired, include the type and degree
Example:
Instructions the organization gives the worker
Training the organization gives the worker
Basics of IRS Independent Contractor Guidance:Financial Control
Facts that show whether the organization has a right to control the business aspects of the worker’s job
Examples:
The extent to which the worker has unreimbursed business expenses
The extent of the worker’s investment
The extent to which the worker makes services available to the relevant market
How the organization pays the worker
The extent to which the worker can realize a profit or loss
Basics of IRS Independent Contractor Guidance: Relationship of the parties
Facts that show the parties’ type of relationship
Examples:
Written contracts describing the relationship the parties intended to create
Whether the organization provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay
The permanency of the relationship
The extent to which services performed by the worker are a key aspect of the regular business of the organization
Exempt employees
are excluded from the minimum wage and overtime pay requirements of the law. To qualify for exemption, these employees must work in a bona fide manner in, for example, executive, administrative, professional, or outside sales positions. In general, they must meet certain tests regarding their job duties and must be paid on a salary basis, with a guaranteed minimum amount no matter how many hours are worked per week, at not less than $455 per week.
Nonexempt employees
are not excluded from minimum wage pay requirements and are entitled to overtime pay.
Any employee compensated on an hourly basis is automatically considered a nonexempt employee under the FLSA
Except for certain computer and outside sales employees, teachers, and a few select other employees.
FLSA exemptions.
Generally, in order for an employee to be exempt, three requirements must be met: (1) minimum salary, (2) paid on a salary basis (without improper deductions), and (3) primary duties.
A safe-harbor provision prevents an employer from losing an overtime exemption for improper pay deductions—regardless of the reason for the improper deductions—where the employer:
- Has a “clearly communicated policy” that prohibits improper pay deductions and includes a complaint mechanism
- Reimburses employees for any improper deductions.
- Makes a good-faith effort to comply in the future.
The DOL regulations provide several examples of positions that qualify for overtime and those that are exempt. Additional examples of exempt and nonexempt positions in this category include:
First responders. Insurance adjusters. Financial service industry workers. Human resource employees. Nurses. Registered or certified medical technologists.
Under the FLSA,
all nonexempt workers must be paid overtime pay—1.5 times their regular rate of pay for hours worked in excess of 40 in any workweek.
The FLSA
also stipulates that employers must be sure that nonexempt employees are fully relieved of their duties during lunch or other unpaid breaks and that lunch and other breaks are of the length of time required under federal and state law.
There are some exceptions to the minimum wage, including but not limited to:
- 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.
There are some exceptions to the minimum wage, including but not limited to:
To qualify an employer first must obtain a certificate from the appropriate regional office of the DOL’s Wage and Hour Division.
- 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.
Penalties of FLSA’s
An employer who violates the FLSA’s requirements to pay overtime is liable to an employee in the amount of the unpaid overtime compensation as well as an additional, equal amount as liquidated damages.
Penalties of FLSA’s
The statute of limitations under the FLSA is generally two years, but the time period can be extended to three years if there has been a willful violation by the employer
Penalties of FLSA’s
In addition to an award of unpaid wages, the employee is also entitled to recover reasonable attorneys’ fees and costs incurred in bringing the action. An employee may not bring suit if he or she has been paid back wages under the supervision of Wage and Hour Division of the DOL or if the secretary of labor has already filed suit to recover the wages.
Penalties of FLSA’s
Criminal penalties of not more than $10,000 and six months’ imprisonment may also be imposed for certain willful violations. Under the FLSA, a violation is willful generally if the employer knew or showed reckless disregard as to whether its conduct violated the law.
Portal-to-Portal Act of 1947
amended the FLSA and defined additional rules for hours worked.
On-Call/Standby Time
If the employer restricts an employee’s activities and does not allow any personal business, then the hours are included as time worked, including overtime. Employers may not be required to pay wages or overtime when an employee is off the premises and on call (asked to stay by the phone or computer, carry a mobile device, or respond to a beeper) as long as the employee generally is not otherwise restricted.
Preparatory/Concluding Activities
The general test is whether the activity is performed solely for the employer’s benefit and is an integral and indispensable part of the employee’s job activities (e.g., putting on safety gear, making deliveries for the employer on the way home).
Meals and Breaks
The act does not require an employer to provide rest or meal breaks to non-minors. State law and collective bargaining agreements may vary greatly, however. Under the act, rest periods of five to 20 minutes are considered hours worked. Bona fide meal periods of 30 minutes or longer, during which the employee is completely relieved of duty, are not considered hours worked.
as a matter of enforcement, the DOL may scrutinize closely any break that is less than 30 minutes, regardless of whether the break is characterized as a rest or a meal break.
Out-of-town travel during the course of a day.
Travel out of town may also comprise work. 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. However, the employer may consider the time spent traveling to and from the airport or other transportation terminal in the morning and evening to be the equivalent of the home-to-work commute and not compensable work time.
Overnight travel.
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. Any time that the 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.
Exemptions from paying an employee in training
Attendance is voluntary.
Attendance is outside of the employee’s regular work hours.
The event is not directly job-related.
The employee performs no productive work during this period.
Equal Pay Act (EPA) of 1963
technically an amendment to the FLSA, prohibits unequal pay for equal or “substantially equal” work performed by men and women.
Equal Pay Act (EPA) of 1963: An employer can defend its pay disparity by showing that the pay disparity was based on:
A seniority system. A merit system. A difference in the quality or quantity of work. Geographic work differentials Any factor other than sex.
Employee Retirement Income Security Act (ERISA) of 1974
Establish uniform minimum standards to ensure that employee retirement plans are set up and maintained in a fair and financially sound manner.
Enforcement and jurisdiction of ERISA
Split across the DOL, the IRS, and the Pension Benefit Guaranty Corporation
Enforcement and jurisdiction of ERISA: DOL
Has jurisdiction over reporting, disclosure, and fiduciary responsbility
Enforcement and jurisdiction of ERISA: IRS
Has jurisdiction over tax-related matters involving benefit plans (funding, eligibility, etc.)
Pension Benefit Guaranty Corporation (PBGC
Insures payment of certain pension plan benefits in the event that a private-sector defined benefit pension plan lacks sufficient funds to pay the promised benefits. Covered plans or their sponsors are required to pay premiums to the PBGC.
Pension Benefit Guaranty Corporation (PBGC
In turn, the PBGC guarantees payment of vested benefits (up to a maximum limit) to employees covered by these pension plans.
General Rules under ERISA
Fiduciary duties: An ERISA plan must be operated for the exclusive benefit of the participants and their beneficiaries. The plan fiduciaries must follow the prudent person rule.
General Rules under ERISA
Fiduciary duty: prudent person rule: The fiduciary cannot take more risks than a prudent expert investor would under similar circumstances.
ERISA (Eligibility requirements)
At least 21 and completion of 12 months of service. An employer cannot set the age for plan participation at more than 21. However, an employer can lower the age and service requirement thresholds
ERISA (Vesting Requirements)
The minimum vesting requirements differ between defined benefit plans and defined contribution plans.
ERISA (Communication Requirements)
Requires retirement and benefit plan administrators to prepare and distribute summary plan descriptions (SPDs) to participants.
ERISA (Communication Requirements)
Summary plan descriptions include participants rights, benefits, and responsibilities. Should be issued when an employee first begins participating in a plan and at lest once every 5 years thereafters.
ERISA (Communication Requirements)
If plans are modified in the interim years, plan administrators are required to either distribute summaries of material modifications (SMMs) or a new summary plan description.
ERISA (Communication Requirements)
Participants must also receive a summary annual report (SAR) that contains financial information about a welfare or defined contribution retirement plan or annual funding notice for a defined retirement plan.
ERISA (reporting requirements)
An annual report (FORM 5500) must be filed with the IRS and made available for participants to inspect. Filing Form 5500 is required all qualified retirement plans and for welfare benefit plans that have at least 100 employees participating.
Sarbanes-Oxley Act (SOX) of 2002
Enacted in response to Enron and other corporate accounting scandals. The act requires that all publicly held companies establish internal controls and procedures for financial reporting to reduce the possibility of corporate fraud.
