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SHRM-CP 2021 > Workplace - U.S. Employment Law & Regulations > Flashcards

Workplace - U.S. Employment Law & Regulations Flashcards

1
Q

Sources of Law

A

The Constitution

Statutes

Regulations

Agency Guidelines

Executive Orders

Common Law

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2
Q

Things that every business should have in place to be compliant and to prevent potential liabilities and EE lawsuits:

A
  1. Workplace policies, procedures, training program
  2. Workplace posters
  3. New EE orientation
  4. Workers Comp Insurance
  5. Proper withholding from taxes
  6. Compliance training
  7. Code of Conduct
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3
Q

HR Professionals should be aware of the importance and limits of attorney client privilege’s

A

HR should be forthcoming in sharing any and all information they think may be relevent to the issue at hand

HR should speak to opposing counsel only under the direction of the employers attorney

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4
Q

Compliant Workplaces–HR should:

A
  1. Ensure confidentiality
  2. Select an appropriate investigator
  3. Create a plan
  4. Conduct interviews
  5. Create a report, if appropriate
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5
Q

The concept of EEO

A

Employers should not make employment decisions on the basis of an applicants or employees (protected items) race, sex, ethnicity, national origin, citizenship, religion, age, color, military status, genetic info, FMLA entitlement, disability status, sexual orientation, gender identity, gender expression.

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6
Q

Protected Classes

A

Describes people who are covered under a particular federal, state, or local antidiscrimination law

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7
Q

Disparate Treatment v. Disparate Impact

A

Disparate Treatment: Discrimination occurs when an applicant or EE is treated differently because of his or her membership in a protected class.

Disparate Impact: Results when a policy that appears to be neutral has a discrimination effect.

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8
Q

Terms embedded in T7 legislation

A
  1. National Origin: place of birth
  2. Race: certain race or personal characteristics
  3. Sex: biological and physiological characteristics
  4. Gender: masculinity v. femininity
  5. Sexual orientation: attraction to another
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9
Q

T7 provisions include the following:

A
  1. Recruiting, hiring, advancement
  2. Segregation and classification of EEs
  3. Harassment/hostile work environment
  4. Compensation
  5. Other terms, conditions, and privileges of employment
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10
Q

Exceptions that affect the application of T7:

A
  1. Work related requirements: required by business necessity
  2. BFOQ: reasonably necessary to carrying out a particular job function (race/color never a BFOQ)
  3. Bona fide seniority system: seniority systems that were not designed to discriminate
  4. Affirmative action plans
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11
Q

EEO Act

A

The EEO act amended T7 and gave the EEOC authority to ‘back up’ its administrative findings and conduct its own enforcement litigation.

*EEOC could work on your behalf prior to courts

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12
Q

Pregnancy Discrimination Act (PDA)

A

Amended T7 to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions; it requires employers to treat pregnancy the same as any other temporary disability

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13
Q

Uniform Guidelines on Employee Selection Procedures

A

Covers all aspects of the selection process, including recruiting, testing, interviewing, and performance appraisals

*How to hire and legally defend

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14
Q

Four-fifths Rule

A

As a rule, this occurs when the selection rate for a protected class is less than 80% of the rate for the class with the highest selection rate.

200 apps (100 men and 100 women)

80/100=.8
60/100-.6

80 men hired and 60 women hired

60/80=75%==>could be an indication of adverse impact

*Adverse impact is indicated if the selection rate of the minority group is less than 80% of the selection rate of the majority group

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15
Q

Civil Rights Court Cases

A

Griggs v Duke Power: set standard for determining whether discrimination based on disparate impact exists (discrimination against blacks, relegating them to employment in low level positions)

Phillips v Marietta Corporation: apply the sex discrimination provisions of T7 of the Civil Rights Act to employment decisions. An employer may not, in the absence of business necessity, refuse to hire women with preschool aged children while hiring men with such children.

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16
Q

Civil Rights Act of 1991

A

Jury trials are allowed in cases where the plaintiff seeks compensatory or punitive damages.

*Compensatory damages are awarded to make an injured person ‘whole’.

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17
Q

Punitive Damages

A

AKA exemplary damages:

  • damages requested and or awarded in a lawsuit when the defendant’s willful acts were malicious, violent, oppressive, faudulent, or grossly reckless.
  • punitive damages are not possible against a governmental unit or agency under federal law, but could be available under state law.
18
Q

Age Discrimination in Employment Act and Amendments (ADEA)

A

The act prohibits discrimination in every aspect of employment against employees and applicants age 40+.

*Covers all state/local government, private employers with 20 or more employees, unions with 25 or more members, employment agencies, and apprenticeship and training programs

19
Q

Exceptions to the ADEA

A

Age Discrimination is permissible if:

  • age is a bona fide occupational qualification
  • adhering to a genuine seniority plan
  • employer is disciplining a person for reasonable cause
  • employee is a top executive or policy maker
20
Q

ADEA Prohibits

A
  • Mandatory retirement based on age (with few limited exceptions)
  • Employment discrimination against those 40 and over
21
Q

Older Worker Benefit Protection Act (OWBPA)

A

The OWBPA amended the ADEA to prohibit discrimination in 2 areas (21 days, 7 days):

  • Employee benefits: benefits offered to older workers must be equal to the benefits offered to younger workers
  • Waivers of claims: standards that an EE waiver of the right to sue for age discrimination must meet in order to be upheld by a court
22
Q

Americans with Disability Act (ADA)

A

A landmark civil rights law protecting qualified individuals with disabilities from discrimination in many areas.

*All private and state/local government with 15 or more employees, employment agencies, labor orgz, joint labor mgmt committees.

23
Q

ADA Terms

A
  1. Qualified: have the requisite skill and be able to perform the essential functions of the job, either with/without reasonable accommodation
  2. Essential function: the primary job duties that a qualified individual must be able to perform, with/without accommodation
  3. Disability: an individual is disabled if they have an impairment that substantially limits a major life activity OR has a record of such an impairment, OR is regarded as having such an impairment
24
Q

Major Life Activities

A

Not limited to: walking, seeing, hearing, breathing, thinking, communicating, operation of major bodily functions, transferring/mobility, toileting/personal hygiene, bathing and dressing, and caring for oneself.

25
Q

ADA Amendments Act

A

The ADAAA overturned court decisions that narrowly interpreted the definition of disability.

Makes it much easier for individual seeking the protection of the law to demonstrate that they meet the definition of disability

*ADAAAs 9 Rules of Construction

26
Q

Reasonable Accommodation

A

Modifying or adjusting a job application process, a work environment, or the circumstances under which a job is usally peformed to enable a qualified individual with a disability to be considered for the job and peform its essential functions.

27
Q

Identifying a Reasonable Accommodation

A

Step 1: individual asks for accommodation or employer knows of the need for an accommodation

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

Step 4: Assess the reasonableness of the accommodations, including whether they are the employers responsibility and whether they impose an undue hardship

Step 5: Choose the appropriate accommodation for the individual

28
Q

Workplace Harassment

A

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
29
Q

Sexual Harassment

A
  1. Quid Pro Quo: occurs when an EE is forced to choose between giving in to the supervisors sexual demands and forefeiting a benefit
  2. Hostile Environment: when sexual or other discriminatory conduct is severe and pervasive that is unreasonably interferes with an individuals performance, creates an intimidating, threatening, or humiliating work environment, or perpetuates a situation that affects the employees psychological well being.
30
Q

Civil Rights Court Cases Part 2

A

Faragher v City of Boca Raton AND Burlington Industries v Ellerth: are two rulings between supervisor harassment that results in tangible employment action (discharge, failure to promote, demotion).

*Employers have the responsibility to prevent, correct and end harassment

31
Q

Vicarious Liability

A

A legal doctrine under which a party can be held liable for the wrongful actions of another party–becasue of this, employers are legally responsible for the discriminatory acts of their supervisors and managers and may be for their non supervisors as well.

32
Q

Fair Workplace Recommendations for Employers

A
  1. Include sexual orientation in policies
  2. Provide training
  3. Prohibit and prevent harassment of gay EEs
  4. Recognize orgz representing the interest of gay EE
  5. Refer to sexual orientation rather than sexual preference
33
Q

Employer Responses to Harassment

A
  1. Be in writing
  2. Define what is harassment and 0 tolerance
  3. Establish complaint procedure
  4. Training and education
  5. Prompt investigation of complaints
  6. Corrective action if needed
  7. Communicate the policy in different methods
34
Q

Fair Labor Standards Act (FLSA)

A

Establishes wage, overtime pay, youth employment, and record keeping standards affecting full and part time workers in the private sector and in federal, state, and local government

  • Applies to public and private employers with at least $500k of volume in business, also applies to employees who engage in interstate commerce
  • Also covers hospitals, schools, government agencies–regardless of volume!
35
Q

Independent Contractors

A

An employer has no ongoing obligations under the FLSA to self employed independent contractors

  1. Behavioral control
  2. Financial control
  3. Relationship of parties
36
Q

Exempt EEs

A

Must meet salary thresholds which are:

$35,568/yr or $684/week==standard salary level

37
Q

Improper Deductions

A
  1. Employers can lose the exemption if they did not intend to pay on a salary basis
  2. Regulations specify several factors to identify a practice of making improper deductions
  3. Improper deductions that are either isolated or inadvertently are forgiven if the employer reimburses the EE
38
Q

Safe Harbor

A

Prevents an employer from losing an OT 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
  2. reimburse EEs for any improper deduction
  3. Makes a good faith effort to comply in the future
39
Q

FLSA Provisions

A

Overtime Pay: all non exempt workers must be paid OT–1.5x the regular rate of pay for hours worked in excess of 40 in any work week

Workweek: any fixed recurring period of 168 consecutive hours (7 days*24 hours). Workweek can be any day but must be consistent from week 2 week.

Minimum wage: requires employers to pay covered nonexempt EEs at least the federal minimum wage for all hours worked up to 40 in a workweek

40
Q

Child Labor Provisions

A

FLSA restricts the hours and conditions of employment for minors and protects children under 18 from oppressive employment conditions.

41
Q

Portal to Portal Act

A

Amended the FLSA and defined additional rules for hours worked–it provided guidelines on:

  • oncall/standby
  • prep/concluding activities
  • waiting time
  • meals and breaks
  • travel time
  • training time

*<20 min break is paid, >20 mins can be their lunch

SHRM-CP 2021 (26 decks)

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