4 - Workplace: US Employment Laws & Regulations (From Study Group) Flashcards
(83 cards)
1
Q
ADA Amendments Act (ADAAA) of 2008
A
- Retains the basic definition of disability contained in the ADA but expands interpretation.
- Makes it easier to meet the definition of disability.
- Includes nine rules of construction.
- Identifies several impairments that virtually always meet the definition of disability.
- Expands the ADA list of major life activities.
2
Q
Adverse Actions
(Retaliation)
A
- Firing, demoting, or disciplining an employee or treating an employee in a discriminatory manner
- Threatening action against or criticizing the employee
- Inappropriate discussions with the employee and internal or external parties
3
Q
Age Discrimination in Employment Act (ADEA)
Covers
A
- Employers with 20 or more employees
- Unions with 25 or more members
- Employment agencies and apprenticeship and training programs
4
Q
Age Discrimination in Employment Act (ADEA)
Prohibits
A
- Employment discrimination against persons age 40 and over
- Mandatory retirement based on age (with few limited exceptions)
5
Q
Americans with Disabilities Act (ADA)
A
- Prohibits discrimination against qualified individuals with disabilities.
- Applies to employers with 15 or more employees, employment agencies, labor organizations, and joint labor-management committees.
6
Q
Child Labor Provisions
FLSA
A
Restricts the hours and conditions of employment for minors
7
Q
Civil Rights Act of 1991
A
- Allows jury trials when a plaintiff seeks compensatory or punitive damages.
- Compensatory damages are awarded to make an injured person “whole.”
- Punitive damages (exemplary damages) are awarded when the defendant’s willful acts were malicious, violent, oppressive, fraudulent, wanton, or grossly reckless.
- Under federal law, punitive damages are not possible against a governmental unit or agency (but may be available under state law).
8
Q
Consolidated Omnibus Budget Reconciliation Act (COBRA)
A
- Provides continuous group medical coverage after a qualifying event.
- Type of event determines the length of coverage, generally 18 or 36 months.
- Employer can charge actual cost plus a 2% administrative fee.
- Applies to employers who provide health-care benefits to 20 or more employees.
9
Q
Disability
(ADA)
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
10
Q
Disparate (adverse) impact
A
Indirect discrimination that results when a policy that appears to be neutral has a discriminatory effect
11
Q
Disparate treatment
A
Direct discrimination that treats protected classes differently from other applicants or employees
12
Q
Dodd-Frank Wall Street Reform and Consumer Protection Act
A
FCRA Amendment
- Adds notification requirements if any adverse action is taken either partly or wholly because of information in a consumer report.
- Examples:
- Notice of the adverse action
- Specific credit score information
- Name of the consumer reporting agency or person that furnished the credit score
13
Q
Drug-Free Workplace Act
A
Federal contractors with contracts of $100,000 or more and recipients of grants from federal government in any amount must:
- Develop a policy that maintains a drug-free workplace.
- Specify penalties for policy violations.
- Provide a copy of the policy to employees.
- Establish a drug-awareness program.
14
Q
EEOC Complaint Process
A
15
Q
Electronic Record Keeping
A
- Systems must have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of records.
- Records must be maintained in reasonable order in a safe and accessible place.
- Records must be able to be converted to paper format.
- Adequate records management practices must be in place.
16
Q
Employee Polygraph Protection Act
(EPPA)
A
- Regulates the use of polygraph tests (lie detectors).
- Allows the use of polygraph tests when:
- The employer is the federal, state, or local government.
- Current employees are under reasonable suspicion of involvement in workplace incident that results in economic loss.
- Prospective employees will work in security-sensitive, drug manufacturing, or intelligence situations.
- Employer may not discharge an employee based solely on test results or refusal to test.
17
Q
Employee Retirement Income Security Act (ERISA)
A
- Establishes minimum standards for retirement plans
- Plans must conform to the Internal Revenue Code’s requirements and ERISA to receive tax advantages.
- Sets up the Pension Benefit Guaranty Corporation (PBGC).
- Rules cover:
- Fiduciary duties.
- Eligibility requirements.
- Vesting requirements.
- Communication requirements.
- Reporting requirements.
18
Q
Employment Practices Liability Insurance
EPLI
A
- Protects against the risk of heavy financial losses resulting from employment claims and lawsuits.
- Must be carefully considered and reviewed to ensure that it provides the level of protection needed.
19
Q
Equal Employment Opportunity Act
Title VII Amendment
A
Gives the EEOC authority to “back up” its administrative findings and conduct its own enforcement litigation
20
Q
Equal Opportunity
A
Laws require employment decisions to be job- and business-related and not made on the basis of:
- Race.
- Sex (including pregnancy).
- Ethnicity.
- National origin.
- Citizenship.
- Religion
- Age
- Color.
- Military/veteran status.
- Genetic information.
- FMLA entitlement.
- Disability status.
- Other factors.
21
Q
Equal Pay Act (EPA)
A
Prohibits unequal pay for equal or “substantially equal” work performed by men and women (with limited exceptions).
- Skills
- Effort
- Responsibility
- Working conditions
22
Q
Essential Functions
(ADA)
A
Primary job duties that a qualified individual must be able to perform, with or without accommodation
23
Q
Exempt
A
- Excluded from minimum wage and overtime pay requirements of the law.
- Must work in a bona fide manner and meet requirements for:
- Primary (exempt) duties.
- Salary compensation (as a uniform amount).
- Minimum salary.
24
Q
Fair and Accurate Credit Transactions Act
(FACT Act)
A
FCRA Amendment
- Eliminates consent and disclosure requirements for certain third-party investigations (e.g., suspected misconduct, a violation of laws or regulations).
- Includes directives aimed at uncovering and preventing incidents of identity theft or unauthorized use of the information.
- Provides some relief to employers using third parties to conduct workplace investigations.
25
Fair Credit Reporting Act
| (FCRA)
* Protects privacy of background information and ensures that information supplied is accurate.
* Applicant/employee must provide written authorization before a consumer report is ordered (with limited exceptions).
* Employer must provide:
* Written notice that a report may be used and time for a response to the report.
* Notice if adverse action procedures are taken.
* Certification to credit bureaus of FCRA compliance.
26
Fair Labor Standards Act
| (FLSA)
Establishes minimum 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 governments.
**Applies to:**
* Employers with at least $500,000 in annual dollar volume of business (with limited exceptions).
* Organizations with employees who engage in interstate commerce or the production of goods for interstate commerce.
27
Fair Workplace Recommendations
* Include sexual orientation in nondiscrimination policies.
* Provide training.
* Prohibit and prevent harassment of lesbian, gay, bisexual, transgender employees.
* Recognize organizations representing interests of lesbian, gay, bisexual, transgender employees.
* Refer to “sexual orientation” rather than “sexual preference.”
28
Family and Medical Leave Act (FMLA)
* Covers private employers that have employed 50 or more employees for 20 or more workweeks in current or preceding year.
* Employee must have worked at least 12 months (total within last seven years) for employer, have worked 1,250 hours in past year, and work at site within 75 miles of which 50 or more employees work.
* Provides up to 12 workweeks of unpaid, job-protected leave for incapacity due to pregnancy; prenatal medical care; childbirth; child care following birth or placement for adoption or foster care; serious health condition of a child, spouse, parent, or the employee; for obligations arising from military service.
29
FLSA Overtime Pay Provisions
* Sets rate of overtime pay (1.5 times regular pay after 40 hours worked).
* Sets workweek as any fixed, recurring period of 168 consecutive hours (7 days ´ 24 hours).
* Requires overtime on time worked, not time compensated.
* Requires overtime to be paid in cash, except for public-sector employees. (Presently, compensatory time is not allowed for private-sector nonexempt employees.)
30
FMLA Expansion
According to National Defense Authorization Acts provisions:
1. Qualified Exigency Leave
2. Military Caregiver Leave
31
FMLA Military Caregiver Leave
* FMLA leave for an eligible employee who is spouse, son, daughter, or parent of or next of kin to covered service member with serious injury or illness.
* Up to 26 workweeks during 12-month period
32
FMLA Qualified Exigency Leave
* FMLA leave due to spouse, son, daughter, or parent being on or called to covered active duty.
* Up to 12 workweeks
33
FMLA Regulations
Department of Labor regulations pertaining to:
* Absence of a legal or biological parent-child relationship.
* “Spouse” definition.
* Intermittent leave.
* Medical certification.
* Fitness for duty.
* Health benefits continuation during
* FMLA leave and trigger for COBRA.
* Reinstatement rights.
* Modified-duty programs.
* Cost containment.
* “Serious health condition” definition.
34
Genetic Information Nondiscrimination Act
(GINA)
* Prohibits discrimination against an individual in employment and health insurance on the basis of genetic information about the individual or a family member.
* With limited exceptions, prohibits an employer from requesting, requiring, or purchasing genetic information on the individual or a family member.
35
Griggs v. Duke Power (1971)
* Sets the standard for determining whether discrimination based on disparate impact exists.
* Practices, procedures, or tests that appear neutral on their face, and even neutral in their intent, and that result in a discriminatory effect on a protected class are illegal.
36
Harassment Policy/Prevention
* Have a written policy with a clear definition of harassment and a statement that it will not be tolerated.
* Establish a complaint procedure.
* Provide training and education.
* Investigate every complaint.
* Discipline if necessary.
* Communicate via variety of methods to management and employees.
37
Health Insurance Portability and Accountability Act (HIPAA)
COBRA Coverage Amendment
Amended continuation coverage rules related to:
* Disability extension.
* Pre-existing conditions.
* Definition of qualified beneficiary.
38
Hostile environment
Sexual or other discriminatory conduct creates a threatening or abusive work environment.
39
Immigration Reform and Control Act
| (IRCA)
* Prohibits discrimination on the basiss of national origin or citizenship
* Establishes penatlies for hiring illegal aliens
* Places burden on employers to verify an employee's identiry and right to work
* Generally, documents must be unexpired
E-Verify electronically checks the information provided by the employee on Form I-9.
40
Improper Deductions
* Employers can lose the exemption if they did not intend to pay on a salary basis.
* Regulations specify several factors to identify a practice of making improper deductions.
* Improper deductions that are either isolated or inadvertent are forgiven if the employer reimburses the employees.
41
National Federation of Independent Business v. Sebelius (2012)
(PPACA)
The individual mandate was ruled constitutional; Congress has the power to assess a tax against those who do not purchase insurance.
42
IRS Independent Contractor Guidance
Under FLSA, an employer has no ongoing obligations to self-employed independent contractors.
* Behavioral control
* Financial control
* Relationship of the parties
43
Key Sexual Harassment Cases
**Faragher v. City of Boca Raton**
**Burlington Industries, Inc. v. Ellerth**
* Two separate U.S. Supreme Court rulings distinguishing between supervisor harassment that results in tangible employment action (e.g., discharge, failure to promote, demotion) and supervisor harassment that does not.
* When harassment results in a tangible adverse employment action, the employer is always liable.
Example: Vicarious liability
44
Labor Management Reporting and Disclosure Act
National Labor Relations Act and Amendment
Provides balance of power between union and management by designating certain union activities as unfair labor practices.
Labor-Management Reporting and Disclosure Act (LMRDA)
1959
Protects the rights of union members fr
45
Lechmere, Inc. v. NLRB (1992)
Stated that an employer cannot be compelled to allow nonemployee organizers onto the business property.
46
Lilly Ledbetter Fair Pay Act
2007
* Ledbetter v. Goodyear Tire and Rubber Company
* States that the statute of limitations on pay discrimination lawsuits resets as each allegedly discriminatory paycheck is issued.
* Proactive organizations will identify and remedy any potentially discriminatory pay practices.
47
Medicaid Expansion
National Federation of Independent Business v. Sebelius (2012)
(PPACA)
The requirement that states choose between complying with the PPACA or losing federal funding for Medicaid was ruled unconstitutional.
48
Minimum Wage
Requires employers to pay covered nonexempt employees at least the federal minimum wage for all hours worked up to 40 in a workweek
49
National Labor Relations Act
(NLRA)
Wagner Act
* Intended to protect and encourage growth of union movement.
* Workers have right to organize and bargain collectively with employers
* National Labor Relations Board (NLRB).
50
National Labor Relations Act Amendments
* Labor-Management Relations Act
* Labor Management Reporting and Disclosure Act
51
NLRB Enforcement
The NLRB protects the self-organization rights of employees to:
* Form, join, or assist labor organizations.
* Bargain collectively through representatives of their own choosing.
* Engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.
* Refrain from any or all such activities.
**The NLRB investigates charges of unfair labor practices.**
52
NLRB v. Weingarten (1975)
* Deals with the rights of union employees to have another person present during investigatory interviews (the so-called **Weingarten rights**).
* Person attending must be affiliated with the union, not an attorney or relative.
53
Nonexempt
Not excluded from minimum wage requirements and entitled to overtime. This includes blue-collar workers, no matter their compensation level, as well as veterans in blue-collar jobs.
54
Occupational Safety and Health Act (OSHA)
Established the first national policy for workplace safety and health; requires employees to comply with OSHA standards and requires employers to provide safe and healthful working conditions for employees
* Covers virtually all workers in the country, with a few exceptions.
* Provisions are enforced by the Occupational Safety and Health Administration (OSHA).
* Overarching employee rights under the act are covered by the **General Duty Clause**.
55
OSHA Key Standards
* Emergency Exit or Evacuation Procedures
* Occupational Noise Exposure
* Machine Guarding
* Hazard Communication
* Control of Hazardous Energy
* Bloodborne Pathogens
* Confined Space Entry
* Personal Protective Equipment
* Process Safety Management
56
Other Administrative Concerns
Other issues such as enforcement, claims investigations, penalties, and what to do when state laws differ from federal regulations
57
OWBPA
Older Workers Benefit Protection Plan
Amended the ADEA to prohibit discrimination in employee benefits and waivers of claims.
58
Patient Protection and Affordable Care Act
(PPACA)
Requires virtually all citizens and legal residents of the U.S. to have minimum health coverage and requires employers with more than 50 full-time employees to provide health coverage that meets minimum benefit specifications or pay a penalty.
* Preexisting conditions
* Small employer health-care tax credit
* Preventive care
* Dependent coverage
* Uniform explanation of coverage
* Notice of material modifications
* Annual benefit limits
* State health marketplaces
* “Cadillac plan” tax
59
Phillips v. Martin Marietta Corporation (1971)
* Applied the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 to employment decisions.
* Prohibits an employer (in the absence of business necessity) from refusing to hire women with preschool-aged children while hiring men with such children.
60
Portal-to-Portal Act
* Amends FLSA and defines additional rules for hours worked.
* Provides guidelines on:
* On-call/standby time.
* Preparatory/concluding activities.
* Waiting time.
* Meals and breaks.
* Travel time.
* Training time.
61
Pregnancy Discrimination Act (PDA)
Title VII Amendment
Prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions; requires employers to treat pregnancy the same as any other temporary disability
62
Protected Activities
| (Retaliation)
* Filing a complaint
* Threatening to file a complaint
* Refusing to obey a discriminatory or unsafe order
* Engaging in concerted activity with other employees
63
Protected Classes
People who are covered under a federal, state, or local anti-discrimination law.
64
Qualified
| (ADA)
* Has the requisite skills, experience, education, licenses, etc.
* Can perform the essential functions of the job, either with or without reasonable accommodation
65
Quid pro quo
Employee must give in to sexual demands or forfeit an economic benefit (job or raise).
66
Reasonable Accommodation
Modifying or adjusting a job application process, a work environment, or the circumstances under which a job is usually performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions
* Involves an interactive process between the employer and the employee.
* Does not require employers to provide reasonable accommodation but to give consideration for the reasonableness of the accommodation.
67
Records Management
Requirements may depend on....
* Federal and state statues/regulations
* Status as government contractor or subcontractor
* Number of employees or purpose of record keeping
* Industry, location or customers
68
Retaliation
Employers are prohibited from retaliating against employees engaged in “protected activities.”
69
Safe Harbor
Exists if:
* The employer has a clearly communicated policy prohibiting improper pay deductions.
* Employees are reimbursed for any improper deductions.
* The organization makes a good-faith effort to comply in the future.
70
Defined Contribution Plans
Sarbanes-Oxley Act (SOX)
* Requires plan administrators to provide at least 30-day notice of blackout period (of more than three consecutive business days).
* Places restrictions on directors or executive officers from trading of company stock.
* 30-day blackout notice must be in writing and
71
Sources of Law
* The Constitution
* Statues
* Regulations
* Agency guidelines
* Executive Orders
* Common Law
72
Key questions:
State Drug-Free Workplace Laws and Marijuana Laws
* If an employee uses medical marijuana, can the employee be terminated following a positive workplace drug test result?
* Must an employer accommodate an employee using medical marijuana?
* Do employers in states with legal recreational marijuana have to allow for marijuana use apart from participation in a recognized medical marijuana program?
Consult with legal counsel.
73
Steps in Employment Employment Lawsuits
1. Notification
2. Answering complaint
3. Scheduling conferences
4. Discovery process
5. Motion to dismiss
6. Summary judgment
7. Pretrial and trial
74
Title VII Exceptions
* Work-related requirements
* Bona fine seniority systems
* Bona fid occupational qualifications (BFOQs)
* Affirmative action plans
75
Title VII Protections
Specific provisions apply to:
* Recruiting, hiring, and advancement.
* Segregation and classification of employees.
* Harassment/hostile work environment.
* Compensation.
* Other terms, conditions, and privileges of employment.
76
Title VII
Civil Rights Act of 1964
Illegal to discriminate in employment:
* RAce
* Color
* Religion
* Sex
* National origin
77
Uniform Guidelines on Employee Selection Procedures
* Assists employers in complying with Title VII, Executive Order 11246, and other EEO requirements.
* Covers all aspects of the selection process.
* Prohibits selection procedures that have adverse impact on protected classes.
* Adverse impact occurs when the rate for a protected class is less than 80% of the rate for the group with the highest selection rate (also known as the 80% or four-fifths rule).
78
Uniformed Services Employment and Reemployment Rights Act (USERRA)
Protects the employment, reemployment, and retention rights of persons who voluntarily or involuntarily serve or have served in the uniformed services.
* Applies to virtually all employers, both public and private, regardless of size.
* VOW to Hire Heroes Act amended USERRA to recognize claims of a hostile work environment.
79
Worker Adjustment and Retraining Notification
(WARN Act)
Requires a minimum of 60 days’ notice for:
* Plant closings.
* Mass layoffs.
* Limited exceptions: faltering company, unforeseeable business circumstances, natural disaster
Requires that notice be given to:
* Affected workers or their representatives.
* State dislocated worker units.
* Local government
Employers must check state and local laws for other criteria and “mini WARN” laws that may apply.
80
Workplace Harassment
According to the EEOC, harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 and ADEA, ADA, EPA, and GINA.
**Harassment becomes unlawful:**
* 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.
81
Labor-Management Relations Act
National Labor Relations Act Amendment
Significantly amended NLRA to restrict activity and power of unions.
82
Whistleblower Provisions
Sarbanes-Oxley Act (SOX)
Prohibits any adverse employment action against employees because of protected whistleblowing activities.
83
“White-Collar” Exemptions
* “White-collar” exemptions include EAP employees and computer and outside sales positions.
* Employees who meet requirements of exemption tests in addition to minimum salary and salary basis tests are exempt from overtime pay.
