HRM 3100: CORE PRACTICE EXAM EMPLOYMENT LAW 100% SOLVED

HRM 3100: CORE PRACTICE EXAM EMPLOYMENT LAW 100% SOLVED Equal Employment Opportunity Commission (EEOC) *** federal agency created by the Civil Rights Act of 1964 and today enforces federal anti-discrimination statutes, and provides oversight for all federal equal opp standards in employment regulations Discriminatory Evidence *** -Direct Evidence -Comparative Evidence -Bona Fide -Pattern and Practice Direct Evidence *** Real, clear evidence of discrimination that requires no inference or consideration to prove existence Comparative Evidence *** Two employees were similarly situated but were treated differently merely because of class characteristic. Bona Fide Occupational Qualification (BFOQ) *** A reasonable employment qualification that an employer is allowed to consider when making decisions about hiring and retaining employees Pattern and Practice *** discrimination is where the employers policies have the purpose or effect of segregation or assigning employees to particular aspects of a business enterprise for no legitimate business necessity Gender Plus Discrimination *** results when an employer classifies employees on a basis of gender, plus another characteristic-usually a family-related circumstance Anti-Female Animus *** An environment of animosity toward women Quid Pro Quo *** (this for that). Notion that an employer seeks sexual favors in exchange for some positive employment outcome for an employee Tangible Job Action *** an employment outcome arising out of sexual harassment Hostile Work Environment Requirements *** -Unwelcome conduct towards victim -objectionable conduct based on gender -conduct sufficiently sever or pervasive to create abusive working environment -conduct alters the conditions of employment in a way which negatively affects victim -employer knew or should have known the unwelcome conduct and took insufficient action to address Unwelcome Conduct *** not solicited by the employee and that a reasonable person would regard as offensive or unwanted First Written Warning *** 2nd step in a disciplinary process, which advises an employee that work behavior must change, lays out steps that have already been taken to advise the employee of the deficit and describes steps that need to be taken to improve performance and remain employed Age Discrimination in Employment Act (ADEA) *** protect workers aged 40 or older. applies to employers/unions with more than 20 employees Title VII Cover Employers that have... *** fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person EEOC *** federal agency created by the Civil Rights Act of 1964, and today it enforces federal anti-discrimination statutes, and provides oversight for all federal equal opportunity standards in employment regulations Disparate Impact Discrimination (Adverse Impact) *** plaintiff claims not that the employer intentionally discriminated, but rather the employer's procedures, policies, or practices are "not job-related and consistent with a business necessity" and have the effect of creating an unnecessary obstacle to employment opportunity for a specific protected class. Laws Enforced by EEOC *** -The Equal Pay Act of 1963 (EPA) The Age Discrimination in Employment Act of 1967 (ADEA) -The Americans with Disabilities Act of 1990 (ADA) (Title I and Title V) -The Rehabilitation Act of 1973 (Sections 501 and 505) -The Civil Rights Act of 1991 -The Uniformed Services Employment and Re-employment Rights Act (USERRA- Equal Pay Act of 1963 (EPA) *** protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; Age Discrimination in Employment Act of 1967 (ADEA) *** protects individuals who are 40 years of age or older Americans with Disabilities Act of 1990 (ADA) *** and its 2008 Amendments (ADAAA), which prohibit disability discrimination in the private sector The Rehabilitation Act of 1973 (Sections 501 and 505) *** prohibit discrimination against qualified individuals with disabilities who work in the federal government; The Civil Rights Act of 1991 *** allows for compensatory and punitive damages for violations of Title VII Uniformed Services Employment and Re-employment Rights Act (USERRA) *** protects military personnel from employment discrimination. Prima Facie *** "at first sight" elements: An apparently neutral employer's procedure, policy, or practice, which has the effect of limiting employment opportunities for a particular class. That the difference in impact is substantial. Examples of neutral polices and protected classes impacted might include: Height and weight restrictions - gender/national origin Language requirements - national origin Physical strength tests - gender Educational requirements - race; dress codes - gender/religion No beard policies - gender/race/national origin/religion Retaliation Under Title VII *** The prima facie case for a retaliation claim is 1) the employee engages in a protected activity; 2) the employee suffers some adverse employment action; and 3) there is a nexus - causal link - between the adverse employment action and the employee's protected activity. elements of a prima facie discrimination case for gender discrimination are: *** -The employee is the protected class. -The employee is qualified for the position. -The employee suffers some adverse employment action. -A person of opposite gender received favorable employment action or the employer continues to look for applicants for the position. Gender Discrimination *** -stereotyping how a male or female should act -grooming and dress are often issues Grooming/Dress: Gender Discrimination *** Title VII allows for gender to be the basis for differing employer-imposed grooming requirements for employees, but the application must be fair and reasonable. However, if dress or grooming standards are applied unequally or used to promote unequal treatment, they are discriminatory. Requiring women, but not men, doing the same job to wear uniforms perpetuates the notion that women are inferior employees. Example of Gender Plus Discrimination *** an employer who treats a woman differently from other employees because she is a mother of small children is guilty of gender plus discrimination Prima Facie for Gender Plus Discrimination *** -He or she has small children -Is qualified for the job -Suffers an adverse employment action -Similarly situated workers of the same gender, without small children, are treated more favorably Immigration Reform and Control Act of 1986 (IRCA) *** preventing employers from knowingly hiring illegal/undocumented workers and requires them to verify employment within 3 days of hiring -I-9 -Birth Certificate -Passport -Resident Alien Card E-Verify *** an internet based system operated by the federal government which allows an employer to determine the eligibility of an employee to work in the US using info on the Form I9 Performance Appraisals *** -no law requiring these Immigration and Nationality Act of 1952 (INA) *** centralizes and organizes US immigration law. *important* to employers bc defines conditions permissible for temporary and permanent employment of aliens in the US Alien *** a person who lacks citizenship or status as a national of the US Proper Documentation for Employment (legal) *** -valid passport -border crossing ID card -permanent resident card (green card) -reentry permit Negligent Hiring *** an instance where an employer knew or should have known about a history of violence or trustworthiness Due Diligence *** reasonable steps taken by an employer to ensure that applicants are eligible to be hired Negligent retention *** when employer fails to terminate, or remove from authority position, an employee when it is apparent he or she poses a danger to other employees or the firm Defamation *** communicating false statements that harm a persons reputation Negligent Referral *** claim in which an employer has provided an untrue reference that omits information about an employees dangerous/criminal behavior Worker Adjustment and Retaining Notification Act (WARN) *** gives terminated employees an opportunity to search for other employment or obtain additional training Plant Closing *** single site of employment or temporarily shut down for 6 months or with a 50% reduction in house over a 6-month period and impacts 50 or more employees for a 30 day period Mass Layoff *** workforce reduction at a single employment site during a 30-day period that is not caused by a plant closing. involves workforce reductions of at least 50 full-time employees when they comprise at least 33% of full-time employees, or reduction of at least 500 employees WARN allows employers to escape notice requirements if *** -plant shutdown or layoffs or due to a natural disaster -firm experiences a severe and unforeseen loss of capital -company is falter and giving notice Contributory negligence *** the workers errant conduct that contributes to the injury Assumption of Risk *** worker knew and accepted the risk of potential injury Fellow Servent rule *** another employee, not employer, caused the injury Occupational Safety and Health Ace (OSHA) *** governs safety in virtually all businesses 1. Compliance requirement 2. General Duty Clause Compliance requirement *** mandates that every employer must comply with all DOL safety and health requirements -providing emergency exits -training on storing and using chemicals -proper ventilation -safety net and rails -protective eyewear General duty clause *** employer to 'furnish to each of its employees...a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm Workers compensation *** a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for relinquishment of employee's right to sue the employer for negligence Course of Employment *** any action by an employee that furthers an employers business Fair Labor Standards Act (FLSA) *** to protect workers from unfair wages, limit abusive overtime practices, and prevent child labor Opportunity Wage *** Exception to min wage that that applies to employees under 20 years of age, who may be paid $4.25/hr for the 1st 90 days Workweek *** defined as a consecutive seven-day period Exempted Employee *** white-collar professional who typically has a high degree of responsibility, works long hours, and receives high pay Titles do not matter, its's the nature of the duties Family Medical Leave Act (FMLA) *** governs leave for employees due to parental and medical necessity and applies to all gov employers and private employers w/ 50 or more employees -12 weeks annual unpaid leave to employee that has worked for at least 1250 hrs -timely notice to employer -26 weeks leave for qualifying family member of a veteran seriously injured in line of duty Qualifying Event *** event that entitles an employee to 12 weeks unpaid leave -birth, adoption, placement of a new foster child -serious health condition of the employee, spouse, child or parent Continuous Leave *** type of leave in which an employee is absent from work or a continuous length of time Intermittent Leave *** type of leave in which an employee is intermittently absent from work Serious Heath Condition *** -3 or more days of incapacitating illness followed by continuous treatments -incapacity related to a risky pregnancy -long-term periods of illness related to serious conditions like cancer, heart disease and stroke -absence from work to seek treatment for other physical or mental conditions Employee Retirement Income Security Act (ERISA) *** protects worker benefits and encourages employer management of retirement funds Summary Plan Document (SPD) *** issued from an employer to and employee that contains info about an employees benefits Abuse of Discretion *** employers failure to consider important and relevant facts; acting in an arbitrary or capricious manner Defined Benefit Pension Plan *** type of pension plan that provides a fixed amount payment upon retirement Defined Contribution Pension Plan *** type of pension plan in which an employer sets aside a certain amount each year for the employee, to be distributed upon retirement Vesting *** process by which an employee accrues a non-forfeitable rights over employer-provided pension plan contributions Consolidated Omnibus Budget Reconciliation Act (COBRA) *** federal act that allows an employee-at his or her own expense-to continue company health care benefits for up to 18 months when he or she leaves a job. -Applies to firms with 20 or more employees and authorizes the firm to change to a 2% premium for administering costs of the coverage to former employees Whistleblowing *** action of an employee to report the wrongdoings of an employer False Claims Act (FCA) *** federal law imposes liability on entities that defraud governmental programs Federal Whistleblower Statute *** protects contractor employees from employment discrimination or retaliation for reporting company violations of the law Uniformed Services Employment and Reemployment Rights Act (USERRA) *** prevents any employer from discriminating against someone who is, or has been, in military service Exceptions for USERRA *** -veteran fails to return to work within a specified time following military service -subsequent circumstances have made it 'impossible/unreasonable' -prior employment was brief and carried no expectation or reemployment -additional new training of the employee would place an undue hardship on employer Escalator principle *** provision of USERRA that requires an employer to place a returning veteran in positions that he or she may have attained, absent the military leave Privacy Act of 1974 *** governs the release of private information by federal agencies about public employees -guarantees that employees have access to personnel files, a method to correct erroneous information in those files, and power to prevent the release of any personal info. 4 Torts under Invasion of Privacy umbrella *** -intrusion upon seclusion -public disclosure of private facts -placement in false light -appropriation of image or likeness Intrusion Upon Seclusion *** must show: -there was unauthorized employer intrusion or prying into his/her seclusion -employer intrusion was highly offensive Pre-Employment Tests *** -HR Managers should only adopt which clearly establish a casual link between the test and its predictive behavior for success in specific job function. -Ex: eligibility tests Ineligible Tests *** -Drug, Medical and polygraph tests Drug Free Workplace Act of 1988 *** requires federal contractors doing more than $100k in business with the fed. gov. to ensure a drug-free workplace through education and enforcement of polices -Does not require drug testing Omnibus Transportation Employee Testing Act (Omnibus Act) *** Authorizes and regulates drug testing of employees in the airline, railroad, trucking, and public transportation sectors Defending Drug Testing Program *** -include clear drug policy -identify when testing can be expected -state procedure required for prescription medication -stipulate consequence for positive drug test Medical Testing *** Pre-employment medical testing is prohibited -Permissible when it is designed to determine if an employee is physically or mentally able to perform the job. Polygraph Test (Employee Polygraph Act of 1988) *** Prevents employers from using polygraph tests for employment recruiting and retention purposes. Electronic Comm. Privacy Act (ECPA) *** Prohibits employers from purposefully 1. intercepting by electronic means any employee wire, oral, or electronic comm. 2. Accessing without permission, stored electronic comm. -bc employer owned devices, courts have consistently held that employees have very limited expectations of privacy Fair Credit Reporting Act (FCRA) *** regulated how consumer reporting agencies collect, correct, disseminate, and use consumer credit information Consumer Reporting Agency (CRA) *** entity which collects and provides information about persons for use in credit evaluation and, for our purposes, employment evaluation. Type of Information Covered by FCRA *** -Medical Records/Payments -Residential/Tenant History -Check Writing History -Employment History -Insurance Claims Clayton Act *** Prohibited eliminations of unions expressly removed union organizing efforts from the "anti-combination" language of the Sherman Anti-Trust Act Norris-LaGuardia Act *** Enacted in 1932, it governs the interplay between unions and businesses. National Labor Relations Act (NLRA) AKA Wagner Act *** Enacted in 1935, it establishes workers' rights to form unions, collectively bargain, and strike. concerted activity *** whether as part of a union or not - is any and all efforts of workers to join together to seek working condition improvements from management National Labor Relations Board *** the federal agency given power to safeguard employees' rights to organize and to determine whether to have unions as a bargaining representative NLRB acts to prevent and remedy unfair labor practices committed by private sector employers and unions Labor Management Relations Act of 1947 *** -curbs union overreaching by protecting employee rights and prohibiting wildcat strikes. -more commonly known as the Taft-Hartley Act (Taft-Hartley), Closed Union Shop *** illegal a closed union shop, or one that makes union membership a condition of employment Union Shops *** which allow, in collective bargaining agreements, a condition that all workers must join the union once hired - were heavily restricted, and states were allowed to pass right-to-work laws that gave workers freedom to not join a union if they wished right-to-work laws *** Laws that give employees the option to not join a union. Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) *** also known as the Landrum-Griffin Act, covers both workers and unions covered by the NLRA and workers and unions who are covered by the Railway Labor Act, but not public sector workers and unions. -LMRDA created a union member "bill of rights" which included the right to attend union meetings, vote in elections and on union business, and nominate and vote for candidates in secret elections. mandatory bargaining subject *** is generally one that concerns wages, benefits, hours, and layoff procedures. permissive bargaining subject *** one that either party may bring to the table, but over which the other party is not required to bargain. These might include the type of grades of employment, technology issues, methods of performing work, or supervision requirements. illegal bargaining subject *** A bargaining subject that cannot legally be implemented into a collective bargaining agreement. Under the NLRA, an employer has engaged in an unfair labor practice when it: *** -Interferes with employees as they engage in concerted activity -Dominates or assists a labor union -Discriminates against any worker because of union activity -Punishes a worker for filing charges with the NLRB -Fails to bargain collectively in good faith with the union an unfair labor practice occurs when the union: *** -Interferes with any employee's rights under the NLRA -Aids an employer in discriminating or interfering with union activities -Pickets unlawfully -Charges excessive dues and initiation fees to union members -Causes the employer to pay for work not performed -Refuses to bargain in good faith wildcat strike *** strike by a portion of the employees, that is not authorized by the union unfair labor practices strike *** attempts to pressure management to follow the law by stopping work economic strike *** one based upon the union's frustration that management will not meet its demands for alterations in wages, hours, and benefits. Judicial Review *** power of the supreme court to determine whether a law complies with the constitution Stare Decisis *** "Let the Decision Stand" the doctrine of a court followed by the precedent of an earlier court Joint Employer *** two or more entities not engaged in an integrated exercise exert control over an employee, such that each entity may be considered an employer. Integrated Enterprise *** one in which the operations of two or more employers are considered so intertwined that they can be considered a single employer for purposes of both federal statutory coverage and liability - an important consideration. Covered Employer *** Employer that regularly procures employees for at least 1 employer; subject to employment law regulations Covered Employment Agency *** agency that regularly procures employees for at least 1 covered employer subject to employment law requirements Constructive Discharge *** employer allows intolerable conditions of unfairness or mistreatment to exist at work to such a degree that no reasonable employee would feel he or she had any other option but to quit implied contract *** legally binding agreement which is created, not through formal contract negotiation and documentation, but by the actions of the employer and the employee. -oral assurances Respondeat Superior Doctrine *** Under respondeat superior doctrine, an employer is only responsible for the employee action performed within the scope of employment. Disparate Treatment *** the intentional adverse or unequal treatment of an individual based upon a protected class characteristic. -discriminatory intent Hostile Work Environment *** work environment in which individual(s) subjected to a pattern of harassment "when submission to or rejection of this conduct explicitly or implicitly affects an individuals employment, unreasonably interferes with an individuals work performance or creates an intimidating, hostile, or offensive work environment. Four Fifths Rule *** -EEOC has established a way to measure unlawful disparate impact for the employee testing component of a hiring process -Under this statistical test, any hiring criteria may be deemed discriminatory if the selection rate of a protected class is less than 80 percent of the majority Reverse Discrimination *** when an employee alleges disparate treatment under title vii in cases where an employer, subject to an AA plan preference, impermissibly considers race and gender in an employment practice in favor of another Affirmative Action *** is any action taken by an employer to overcome discriminatory effects of past or current practices or policies that create barriers to equal employment opportunity. Requirements for Race-Based Harassment *** 1. Must be unwelcome 2. Must be sufficiently severe or pervasive to alter the t&cs of employment in the mind of the victim and from the perspective of a reasonable person in the victim's position Severity and Pervasiveness of Unwelcome Conduct *** 1. Frequency 2. Severity 3. Physical or threatening nature of harassment 4. Impact on victim's performance E-verify *** Internet-based system operated by the federal government which allows an employer to determine the eligibility of an employee to work in the US using info reported on employee's Form I-9, Employment Eligibility Verification Negligent Retention *** employer fails to terminate, or remove from authority position, an employee when it is apparent he/she poses a danger or others or the firm What makes a search reasonable? *** 1. Justified at the start 2. Limited in scope in its execution Workers Compensation *** Form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for relinquishment of the employees right to sue the employer for negligence National Labor Relations Board (NLRB) *** federal agency given power to safeguard employee's rights to organize and to determine whether to have unions as a bargaining representative. acts to prevent/remedy unfair labor practices committed by private sector employers and unions Authorities of NLRB *** executive, legislative-rule making, and judicial authority Labor Management Reporting and Disclosure Act of 1959 (LMRDA) *** effort to empower union members and reduce union elite corruption -union member 'bill of rights' LMRDA Restraints *** -required to hold elections for officers every 3 years -candidates in office could have access to voter rolls -compelled to submit annual financial reports to DOL -Every officer must act as a fiduciary in handling the assets and affairs of union Impasse *** deadlock reached by 2 bargaining parties whereby an issue cannot be resolved Employer is engaged in Unfair Labor Practices when: *** 1. Interferes with employees as they engage in concerted activity 2. Dominates or assists a labor union 3. Discriminates against any worker because of union activity 4. Punishes a worker for filing charges with the NLRB 5. Fails to bargain collectively in good faith with the union Unfair labor practice occurs when the union *** 1. Interferes with any employee's rights under the NLRA 2. Aids an employer in discriminating or interfering with union activities 3. Pickets unlawfully 4. Charges excessive dues and initiation fees to union members 5. Causes the employer to pay for work not performed 6. Refuses to bargain in good faith Reasonable Accommodation *** a reasonable change to the work environment that allows a religious individual to perform job functions Implied Contract *** Legally binding agreement which is created, not through formal contract negotiation and documentation, but by actions of employer and employee AKA-oral assurances Supremacy Clause *** mandates that the constitution, federal law, treaties and federal regulations are the highest laws of the land and have priority over state law. Frolic and Detour *** Employee's physical departure from the job in order to further his/her own interests and not the employers. Dual Purpose Mission *** Occurs when an employee conducts personal and work business at the same time; subjecting the employer to the employees actions Pregnancy Discrimination Act (PDA) *** 1978; Prohibits employment discrimination on the basis of pregnancy, childbirth, or related medical conditions. Pregnant women must be treated in the same manner as other applicants or employees with similar abilities or limitations. (possibly as a temporarily disabled worker) Equal Pay Act 1963 (EPA) *** protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination Civil Rights Act of 1991 *** allows for compensatory and punitive damages for violations of Tytle VII Age Discrimination in Employment Act of 1967 (ADEA) *** protects individuals who are 40 years of age or older Americans with Disabilities Act of 1967 (ADA) *** prohibits disability discrimination in the private sector The Rehabilitation Act of 1991 *** prohibits discrimination against qualified individuals with disabilities who work in the federal government Uniformed Services Employment and Re-employment Rights Act (USERRA) *** protects military personnel from employment disctrimination