WORKplace III Flashcards
1
Q
The Age Discrimination in Employment Act (ADEA)
A
Passed to prohibit discrimination in the workplace on the basis of age
2
Q
exceptions to ADEA’s nondiscrimination requirements may occur under the following circumstance
A
- 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
3
Q
exceptions to ADEA’s nondiscrimination requirements may occur under the following circumstance
A
- 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.)
4
Q
ADEA covers
A
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
5
Q
ADEA covers
A
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.
6
Q
Older Workers Benefit Protection Act (OWBPA) of 1990 prohibit discrimination in two areas:
A
- 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
7
Q
Older Workers Benefit Protection Act (OWBPA) of 1990 prohibit discrimination in two areas:
A
- 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.
8
Q
As a result of the OWBPA
A
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.
9
Q
As a result of the OWBPA
A
Eligible employees must be provided with certain workplace demographic information as part of a group termination release.
10
Q
Americans with Disabilities Act (ADA) of 1990
A
is a landmark civil rights law protecting qualified individuals with disabilities from discrimination in many areas.
11
Q
passage of the ADA
A
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.
12
Q
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
A
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.
13
Q
To be “qualified” under the ADA, an 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.
14
Q
Definition of disability
A
- 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.
15
Q
Major life activities covered by the ADA include
A
Walking,seeing, hearing, breathing, thinking, communicating, operation of major bodily functions, transferring/mobility, toileting/personal hygiene, bathing and dressing, and caring for oneself.
16
Q
ADA Amendments Act (ADAAA) of 2008
A
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
17
Q
examples of potential reasonable accommodations include the following:
A
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
18
Q
ADA: employer meeting undue hardship
A
- 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.
19
Q
ADA: employer meeting undue hardship
A
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.
20
Q
ADA: employer meeting undue hardship
A
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.
21
Q
5 Step process for reasonable accommodation
A
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
22
Q
5 Step process for reasonable accommodation
A
Step 4: Assess the reasonableness of the accommodations, including whether they are the employer’s responsibility and whether they impose an undue hardship.
23
Q
5 Step process for reasonable accommodation
A
Step 5: Choose the appropriate accommodation for the individual
24
Q
The EEOC describes harassment
A
as a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 and the ADEA, EPA, GINA, and ADA.
25
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
26
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
27
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.
28
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.
29
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.
30
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.
31
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.
32
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
33
FLSA purpose
3.To restrict the hours and conditions of employment for minors
34
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.
35
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.
36
The FLSA covers the following organizations regardless of the dollar volume of their businesses:
1. Hospitals
2. Institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises
3. Schools for children who are mentally or physically disabled or gifted
37
The FLSA covers the following organizations regardless of the dollar volume of their businesses:
4. Preschools, elementary and secondary schools, and institutions of higher education
5. Federal, state, and local government agencies
38
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).
39
The following are some critical tests for an independent contractor:
1. Having the ability to set own hours and determine sequence of work
2. Working by the project rather than having a continuous relationship with the employer
3. Being paid by the job (rather than by the hour or pay period)
4. Having the opportunity for profit and loss
5. Furnishing own tools and training
6. Being self-employed and holding oneself out as such
40
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
41
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
42
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
43
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.
44
Nonexempt employees
are not excluded from minimum wage pay requirements and are entitled to overtime pay.
45
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.
46
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.
47
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:
1. Has a “clearly communicated policy” that prohibits improper pay deductions and includes a complaint mechanism
2. Reimburses employees for any improper deductions.
3. Makes a good-faith effort to comply in the future.
48
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.
```
49
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.
50
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.
51
There are some exceptions to the minimum wage, including but not limited to:
1. Employees younger than 20 years old, during their first 90 consecutive calendar days of employment.
2. Tipped employees.
3. Full-time students who are employed in retail or service establishments, agriculture, or institutions of higher education.
52
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.
4. 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.
5. Workers whose earning or productive capacity is impaired by physical or mental disability.
53
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.
54
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
55
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.
56
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.
57
Portal-to-Portal Act of 1947
amended the FLSA and defined additional rules for hours worked.
58
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.
59
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).
60
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.
61
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.
62
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.
63
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.
64
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.
65
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.
```
66
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.
67
Enforcement and jurisdiction of ERISA
Split across the DOL, the IRS, and the Pension Benefit Guaranty Corporation
68
Enforcement and jurisdiction of ERISA: DOL
Has jurisdiction over reporting, disclosure, and fiduciary responsbility
69
Enforcement and jurisdiction of ERISA: IRS
Has jurisdiction over tax-related matters involving benefit plans (funding, eligibility, etc.)
70
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.
71
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.
72
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.
73
General Rules under ERISA
Fiduciary duty: prudent person rule: The fiduciary cannot take more risks than a prudent expert investor would under similar circumstances.
74
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
75
ERISA (Vesting Requirements)
The minimum vesting requirements differ between defined benefit plans and defined contribution plans.
76
ERISA (Communication Requirements)
Requires retirement and benefit plan administrators to prepare and distribute summary plan descriptions (SPDs) to participants.
77
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.
78
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.
79
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.
80
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.
81
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.
82
SOX created ERISA section 101(i)
Requires administrators of 401 (k) and other defined contribution plans to provide notice to affected participants and beneficiaries at least 30 days in advance of a blackout period.
83
SOX created ERISA section 101(i): Blackout period definition
A period of more than 3 consecutive business days during which participants or beneficiaries cannot direct the investment of or diversify assets credited to their accounts or obtain loans or distributions, other than certain exceptions specified in ERISA Section 101(i)
84
Blackout periods
Typically occur when there is a new plan provider or a change in investment options.
85
Black periods length
two to six weeks
86
Blackout period prohibits
directors or executive officers of public companies from engaging in trading that involves company stock held outside of the plan during the blackout period if the blackout period prevents at least 50% of the plan participants from engaging in transactions involving company stock held in their plan accounts.
87
Blackout notice information to provide in communication
1. Reasons for the blackout period.
2. Identification of the investments and participants rights that are affected.
3. Expected beginning date and length of the blackout period.
4. Statement that individuals should evaluate the appropriateness of their current investment decisions in light of their inability to direct or diversify their accounts.
88
A plan administrator who fails to provide a required blackout notice
may be fined up to $100 per day per affected participant or beneficiary who did not receive the notice
89
SOX: employees are protected under the act when they:
1. 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.”
2. File, testify in, participate in, or assist in a proceeding filed or about to be filed related to securities fraud.
90
In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the U.S. Supreme Court ruled against Lilly Ledbetter’s claims of sex discrimination in pay under Title VII.
The court ruled that Ledbetter’s claims were not timely because she did not file discrimination charges with the EEOC within the 180-day time frame, which is a prerequisite for bringing a discrimination lawsuit. (The EEOC complaint process is covered at the end of this section.)
91
Lilly Ledbetter Fair Pay Act of 2009
Law's coverage of unlawful employment practices, which includes compensation decisions or "other practices," suggests that employees and their families or heirs could file a discrimination lawsuit against an employer regarding benefits such as salary-based defined benefit and contribution-based defined contribution retirement plan payouts and salary-based life insurance proceeds.
92
Lilly Ledbetter Fair Pay Act of 2009
Proactive organizations will identify and remedy any potentially discriminatory pay practices. These discriminatory practices include basing pay decisions from a protected class
93
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Employers who provide health-care benefits to their employees and who employed an average of 20 or more people in the prior calendar year must allow covered employees and their covered dependents to continue their group health coverage in the event that coverage would end due to termination of employment, divorce, death of employees, etc.
94
COBRA qualified beneficiaries must pay the full premium for the coverage.
In addition, the plan may elect to charge a qualified beneficiary a 2% administrative fee.
95
COBRA length
Usually 18 or 36 months, sometimes longer
96
Event: Termination of employment for gross misconduct
No maximum length of continuation
97
Termination of employment for any reason other than gross misconduct
18 months maximum length of continuation
98
Reduction in hours
18 months maximum length of continuation
99
Employee is disabled at the time of reduction in hours or termination (if required notice is provided to plan administrator in timely manner)
29 months maximum length of continuation
100
Divorce or death of the employed spouse
36 months maximum length of continuation
101
Dependent child loses eligibility status
36 months maximum length of continuation
102
COBRA coverage generally ends
when the employee or dependent ceases paying premiums, becomes eligible for medical insurance from a new employer, gains Medicare coverage after electing COBRA coverage, or when the employer terminates its health-care plan (e.g., goes out of business).
103
COBRA is administered by the DOL in conjuction with the IRS
an employee must make COBRA elections within 60 days of the date that he or she loses coverage or the date that he or she was notified of the right to elect COBRA coverage (whichever is later).
104
Impact on COBRA of Patient Protection and Affordable Care Act (PPACA)
Requires group health plans to provide coverage to dependent children up to age 26, Regardless of whether the adult child is a tax dependent, has any financial relationship with the participant, resides with the participant, is a student, or meets any other requirement of a relationship other than that of a son, daughter, stepchild, or adopted or foster child of the participant.
105
Health Insurance Portability and Accountability Act (HIPAA) made the following changes to COBRA:
1. 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.
106
Health Insurance Portability and Accountability Act (HIPAA) made the following changes to COBRA:
2. 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.
107
Health Insurance Portability and Accountability Act (HIPAA) made the following changes to COBRA:
3. 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.
108
Family and Medical Leave Act (FMLA) of 1993
Requires employers to allow employees to take time off for certain caregiving, medical, military, and family needs.
109
FMLA allows employees to take up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period in the following cases
1. For incapacity due to pregnancy, prenatal medical care, or childbirth
2. To care for the employee's child after birth or placement for adoption or foster care.
110
FMLA allows employees to take up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period in the following cases
3. For a serious health condition that makes the employee unable to perform his or her job.
4. To care for any next of kin who is a covered service member with a service-related illness or injury (military caregiver leave)
111
FMLA allows employees to take up to 12 workweeks of unpaid, job-protected leave during a designated 12-month period in the following cases
5. To attend to obligations that arise as a result of an immediate family member's call to or return from covered military service (exigency leave)
112
National Defense Authorization Act (NDAA)
Qualifying exigency leave and military caregiver leave.
113
Qualified Exigency Leave
Provides up to 12 workweeks of FMLA leave due to a spouse, son, daughter, or parent being on covered active duty or having been notified of an impending call or order to covered active duty in the armed forces.
114
Qualified Exigency Leave for the following categories:
1. Short-notice deployment
2. Military events and related activities
3. Child-care and school activites
4. Financial and legal arrangements
5. Counseling;rest and recuperation
6. Post-deployment activities
7. Additional activities agreed to by the employer and the employee
115
Military Caregiver Leave
Provides up to 26 workweeks of unpaid FMLA leave during a single 12-month period for an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered service member with a serious injury or illness
116
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Enacted to protect the employment, reemployment, and retention rights of persons who voluntarily or involuntarily serve or have served in the uniformed services. Applies to any business public and private
117
USERRA DOL
1. Confirm that applicants are covered by USERRA if an organization rejects a candidate or withdraws an offer of employment due to pending military leave.
118
USERRA DOL
2. Require employees or an appropriate representative of the military to provide oral or written notice of the need for leave
119
USERRA DOL
3. Allow an employee to take military leave for up to five years (extended in some circumstances, such an order to remain on active duty because of a war or national emergency that is unrelated to training)
120
USERRA DOL
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.
121
USERRA DOL
Give employees on military leave the same seniority-based benefits they would have received if they had not taken military leave
122
USERRA DOL
Give covered employees the right to choose whether they want to use paid leave, if any is available during their absence for covered service.
123
USERRA DOL
Require that military leave not create a break in service for retirement plan purposes, including participation, vesting, and accrual of benefits.
124
USERRA DOL
employees giving notice of the need for military leave are not required to state their intention to return to work following military leave at the time they take leave.
125
Patient Protection and Affordable Care Act (PPACA)
Starting in 2014, virtually all citizens and legal residents of the U.S. are required to have minimum essential health coverage (an exception is made for lower-income individuals). Failure to do so results in an excise tax penalty.
126
Patient Protection and Affordable Care Act (PPACA)
Requires employers with more than 50 full time employees to offer minimum essential health coverage that meets minimum benefit specifications or pay a penalty of $2000 per full-time employee per year.
127
The National Federation of Independent Business v. Sebelius
Medicaid offers federal funding to states to assist pregnant women, children, low-income individuals, the blind, the elderly, and the disabled in obtaining medical care.
128
Occupational Safety and Health Act (OSH Act) of 1970
Established the first national policy for workplace safety and health. This federal law requires employers to provide safe and healthful working conditions for employees.
129
OSH Act covers
Virtually all workers in the country, with a few exceptions, such as family farms worked only by family members and self-employed workers.
130
OSHA Objectives:
1. Encourage employers and employees to reduce safety and health hazards.
131
OSHA Objectives:
2. Encourage employers and employees to perfect safety and health programs.
132
Employee responsibilities under OSHA
Stipulates that each employee "shall comply with all occupational safety and health standards and all rules, regulations, and orders issued under the act" that are applicable.
133
OSHA Employee Rights: General Duty Clause
Employee has the right to "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm."
134
OSHA provides employees with specific rights:
1. The right to demand safety and health on the job.
2. The right to request inspections.
3. The right to have an authorized employee representative accompany an inspection
4. The right to file a complaint
5. The right to be informed of workplace hazards.
135
OSHA provides employees with specific rights:
6. The right to request action from the employer to correct hazards or violations.
7. The right to file a discrimination complaint.
8. The right to receive training.
136
Employees can expect OSHA representatives to:
1. Respond promptly to their requests for correction of serious hazards at work.
2. Complete, within 90 days, investigations of charges of employer discrimination against employees who report unsafe conditions to OSHA.
137
Employees can expect OSHA representatives to:
3. Issue a citation and proposed penalty within six months of a violation's occurrence.
138
OSHA Employer Responsibilities
1. Display the OSHA poster in a conspicuous place where it can be seen and read by all employees.
2. 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.
139
Key OSHA standards: Emergency exit or evacuation procedures
Provides guidelines for preparing an emergency action plan and includes specifications regarding exits and maintenance of emergency system; also known as Means of Egrees standard.
140
Key OSHA standards: Occupational Noise Exposure
Requires employers to provide for effective engineering or administrative controls to reduce unsafe noise levels in the workplace; also known as Hearing Conservation standard.
141
Key OSHA standards: Machine Guarding
Provides general requirements for all machinery to protect operator and other employees
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Key OSHA standards: Hazard Communication
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; also known as employee Right-to-know law
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Key OSHA standards: Control of Hazardous Energy
Requires action so equipment cannot be activated (lockout) and signs or labels (tagout) are attached to dangerous equipment that should not be activated.
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Key OSHA standards: Bloodborne Pathogens
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.
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Key OSHA standards: Confined Space Entry
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.
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Key OSHA standards: Personal Protective Equipment
Protects employees from environmental, process, chemical, mechanical, or radiological hazards capable of causing injury or impairment and sets criteria for acceptable equipment designs.
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Key OSHA standards: Process safety management
Aimed at preventing or minimizing the effect of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.
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Company requirements for OSHA
all organizations with more than ten employees, except for low-risk businesses, must report all employee occupational injury and illness data.
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ASHA Forms: OSHA Form 300
Log of work-related injuries and illnesses
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ASHA Forms: OSHA Form 300A
Summary of work-related injuries and illnesses
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ASHA Forms: OSHA Form 301
Injury and illnesses incident report
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Drug-Free Worklace Act of 1988
Federal contractors with contracts of $100,000 or more as well as recipients of grants from the federal government in any amount must follow requirements to certify that they are maintaining a drug-free workplace
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Drug-Free Worklace Act of 1988
1. Developing a policy that prohibits the unlawful manufacturing, distribution, possession, or use of a controlled substance in the workplace.
2. Specifying the actions that will be taken against those who violate the policy.
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Drug-Free Worklace Act of 1988
3. Providing a copy of the policy and the consequences of violating the policy to employees, including employees having to inform the employer within 5 days if they are convicted of a criminal drug offense occurring in the workplace.
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Employer is required in the case of drug-related convictions
Notifying the federal contracting agency within 10 days of receiving notice of any employee conviction of a criminal drug offense occurring in the workplace.
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Employer is required in the case of drug-related convictions
Imposing a sanction on a convicted employee or requiring satisfactory participation in a rehabilitation program.
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Some states require accommodations for registered medical marijuana users
In those states, an employe cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program.
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National Labor Relations Act (NLRA) of 1935
Passed with the purpose of protecting and encouraging the growth of the union movement. The act established workers' rights to organize and bargain collectively with employers.The NLRA established the National Labor Relations Board (NLRB)
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Labor-Management Relations Act (LMRA) of 1947
Amended the NLRA and imposed several restrictions and requirements on unions.
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Labor Management Reporting and Disclosure Act (LMRDA)
Of 1959 further amended the NLRA and imposed regulations on internal union affairs and the relationship between union officials and union members.
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NLRA AKA Wagner Act, or Wagner-Connery Act
LMRA AKA Taft-Hartley Act
| LMRDA AKA Landrum-Griffin Act
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NLRA
Applies to all employers participating in interstate commerce, with the exception of governments, religious schools, agricultural employers, and the railroad and airline industries.
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NLRA covers
Generally protects all the nonsupervisory employees of a covered employer. The NLRA does not protect certain types of workers (such as agricultural workers, domestic laborers, and independent contractors as well as managers and supervisors)
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NLRB was created to enforce the self-organization rights of employees to:
1. Form, join, or assist labor organizations.
2. Bargain collectively through representatives of their own choosing.
3. Engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.
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NLRB was created to enforce the self-organization rights of employees to:
4. Refrain from any or all such activities.
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Unfair labor practice (ULP)
Occurs when a union or an employer violates Section 8 of the National Labor Relations Act.
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Common employer ULPs include
1. interfering with employees as they engage in concerted activity
2. Dominating or assisting a labor union
3. Retaliating against any employee because of union activity.
4. Retaliating against an employee for filing charges with the NLRB
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Common employer ULPs include
5. Refusing to bargain collectively in good faith with a union.
6. 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).
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Fair Credit Reporting Act (FCRA)
Regulates collection and use of consumer credit information.Calls for full disclosure of consumer reports (Including credit reports, criminal background checks, motor vehicle history, employment verification, and reference checks) by consumer reporting agencies (CRAs) so that individuals subject to them can dispute the accuracy, wrongful use, or interpretation of the information.
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Fair and Accurate Credit Transaction Act (FACT Act) of 2003
Written notice and authorization. An employer must clearly and conspicuously notify the individual in writing, in a document consisting solely of that notice, that a report may be used.With limited exceptions, the employer must also get the person's written authorization before asking a CRA for a report.
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Fair and Accurate Credit Transaction Act (FACT Act) of 2003
Pre-adverse action: If an employer decides to not hire an applicant or to take some other adverse action with regard to a current employee based in whole or in part on the consumer report, the applicant or employee must be provided with a copy of the report and given “a reasonable period of time” to present evidence challenging the information contained in the report. Employee or applicant must be given a copy of the report
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Fair and Accurate Credit Transaction Act (FACT Act) of 2003
Adverse action procedures: The employer must give the applicant or employee notice that such action has been taken.
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Fair and Accurate Credit Transaction Act (FACT Act) of 2003
Credit bureaus will 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.
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Fair and Accurate Credit Transaction Act (FACT Act) of 2003
Penalties: Plaintiffs who prove willful noncompliance with the act can recover actual damages (between $100 and $1,000), punitive damages, and costs—including attorneys’ fees. Negligent noncompliance subjects an employer to actual damages, costs, and attorneys’ fees.
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Fair and Accurate Credit Transactions Act (FACT Act)
an employer who uses a third party to conduct a workplace investigation no longer needs to follow the consent and disclosure requirements of the FCRA before commencing the investigation if the investigation involves suspected misconduct, a violation of law or regulations, or a violation of any preexisting written policies of the employer.
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Dodd-Frank Wall Street Reform and Consumer Protection Act
whenever any adverse action is taken against an individual, either partly or wholly because of information contained in a consumer report, the employer must provide the individual with oral, written, or electronic notice of the adverse action as well as specific credit score information used and the name of the consumer reporting agency or person that furnished the credit score.
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Immigration Reform and Control Act (IRCA) of 1986
IRCA prohibits discrimination against job applicants on the basis of national origin or citizenship and, at the same time, establishes penalties for hiring undocumented workers, with certain exceptions.
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Employee Polygraph Protection Act (EPPA) of 1988
Prevents most private employers from requiring applicants or employees to take a polygraph test for preemployment screening or during the course of employment.
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Employee Polygraph Protection Act (EPPA) of 1988
Federal, state, and local governments are excluded. In addition, polygraph test administer by the fed govt to employees of fed contractors engaged in national security intelligence.
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Exceptions where polygraph tests may be used in private sector
1. To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss or injury to the employer's business and the employee had access to the property.
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Exceptions where polygraph tests may be used in private sector
2. To prospective employees of armored car, security alarm, and security guard firms that protect facilities, materials, or operations affecting health or safety, or currency and other like instruments.
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Exceptions where polygraph tests may be used in private sector
3. To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute, or dispense controlled substances who would have direct access to such controlled substances as well as current employees who are involved in an ongoing investigation of related criminal or other misconduct
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Worker Adjustment and Retraining Notification Act (WARN Act) of 1988
requires some employers to give a minimum of 60 calendar days of advance written notice if a plant is to close or if mass layoffs will occur.
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Worker Adjustment and Retraining Notification Act (WARN Act) of 1988
Applies to 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.
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Worker Adjustment and Retraining Notification Act (WARN Act) of 1988: Exceptions to 60-Day Notice
Faltering company.an organization has actively sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business. The faltering company exception is narrowly construed and applies only to plant closings.
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Worker Adjustment and Retraining Notification Act (WARN Act) of 1988: Exceptions to 60-Day Notice
Unforeseeable business circumstances.applies to closings and layoffs that were sudden and were not reasonably foreseeable at the time notice would otherwise have been required (such as the sudden and unpredicted loss of a key business client that severely impacts the organization’s financial stability).
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Worker Adjustment and Retraining Notification Act (WARN Act) of 1988: Exceptions to 60-Day Notice
Natural disaster. applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought, or storm.
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Genetic Information Nondiscrimination Act (GINA) of 2008
prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance.
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GINA covered
15 or more employees and include state and local governments. Unlike GINA, some state laws may apply to employers with fewer than 15 employees.
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GINA Exceptions
1. Inadvertent acquisitions of genetic information. Manager overhears an employee talking about a family member's illness or the manager receives an unsolicited e-mail indiciating that an employee's family member has cancer are valid exceptions.
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GINA Exceptions
For health or genetic services offered by the employer on a voluntary basis, if certain specific requirements are met. In certain circumstances, family medical history may be obtained for participation in a wellness program.
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GINA Exceptions
For purposes of complying with the FMLA (or leave under similar state/local laws or pursuant to an employer policy). An employer can collect information as part of the certification process when an employee asks for medical leave to care for a family member with a serious health condition.
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GINA Exceptions
An employer might acquire genetic information that appears in a commercially purchased newspaper but should not search online discussion groups that focus on genetic testing of individuals and genetic discrimination issues with the intent of profiling employees.
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EEOC Complaint Process
Under Title Vii a claim must be filed within 180 days after the alleged discriminatory practice took place. However, states and localities may be different and they have 200 days
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Steps to EEOC Complaint Process
1. EEO charge filed.
2. EEOC notifies respondent of charge via a letter
3. EEOC sends respondent a copy of the charge
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Steps to EEOC Complaint Process
4 Employer is requested to submit its written response to the charge and/or EEOC's request for information. The EEOC may schedule a fact-finding conference and/or offer mediation.
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Steps to EEOC Complaint Process
5. EEOC reviews charge and assesses "resonable cause"
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Steps to EEOC Complaint Process: If reasonable cause if found
EEOC attempts conciliation.
Respondent required to provide remedies to settle.
or charge is settled or may go to litigation with EEOC or private court
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Steps to EEOC Complaint Process: If EEOC does not make a determination
1. Charging party has right to request right-to-sue letter after 180 days
2. Charging party must file suit in court within 90 days
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Steps to EEOC Complaint Process: If reasonable cause is not found
EEOC notifies both parties.
Charging party is notified of right to sue.
EEOC involvement ends
and then charging party may file suit in court within 90 days.
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Which statement describes the key principle of Title VII of the Civil Rights Act of 1964?
It prohibits discrimination based on race, color, religion, sex, or national origin.
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Under the Pregnancy Discrimination Act, how should an employer treat pregnancy?
The same as any other temporary disability
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Which legislation prohibits mandatory retirement based on age?
Age Discrimination in Employment Act
