Chapter 2 - US Laws and Regulations Flashcards
(109 cards)
1
Q
The Clayton Act - 1914
A
- modified the Sherman Anti-Trust Act by prohibiting mergers and acquisitions that would lessen competition
- prohibited a single person from being a director of two or more competing organizations
- restricts the use of injunctions against labor and legalized peaceful strikes, picketing, and boycotts
2
Q
The Consumer Credit Protection Act - 1968
A
- Congress expressed limits to the amount of wages that can be garnished or withheld in any one week by an employer to satisfy creditors
- prohibits employee dismissal because of garnishment for any one indebtedness
3
Q
The Copeland “Anti-Kickback” Act - 1934
A
- precludes a federal contractor or subcontractor from inducing an employee to give up any part of his or her wages to the employer for the benefit of having a job
4
Q
The Copyright Act - 1976
A
- offers protection of “original works” for authors so others may not print, duplicate, distribute, or sell their work
- 1998: Copyright Term Extension Act further extended copyright protection to the duration of the author’s life plus 70 years for general copyrights and to 95 years for works made for hire and works copyrighted before 1978
5
Q
The Davis-Bacon Act - 1931
A
- requires contractors and subcontractors on certain federally funded or assisted construction projects worth more than $2,000 in the US to pay wages and fringe benefits at least equal to those prevailing in the local area where the work is performed
- applies only to laborers and mechanics
- allows trainees and apprentices to be paid less than predetermined rates under certain circumstances
6
Q
The Dodd-Frank Wall Street Reform and Consumer Protection Act - 2010
A
- wide range of mandates affecting all federal financial regulatory agencies and almost every part of the nation’s financial services industry
- a nonbinding vote for shareholders on executive compensation, golden parachutes, and return of executive compensation based on inaccurate financial statements
- requirements to report CEO pay compared to the average employee compensation and provision of financial rewards for whistleblowers
7
Q
The Economic Growth and Tax Relief Reconciliation Act (EGTRRA) - 2001
A
- modifications to the Internal Revenue Code that adjust pension vesting schedules, increasing retirement plan limits, permitting pretax catch-up contributions by participants older than 50 in certain places (which are not tested for discrimination when made available to the entire workforce), and modifying distribution and rollover rules
8
Q
The Electronic Communications Privacy Act (ECPA) - 1986
A
- composed of two pieces of legislation: the Wiretap Act and the Stored Communication Act
- provide rules for access, use, disclosure, interpretation, and privacy protections of electronic communications, and they provide the possibility of both civil and criminal penalties for violations
- prohibit interceptions of email sin transmission and access to emails in storage
- recording without notice can be a violation of this Act
9
Q
The Employee Polygraph Protection Act - 1988
A
- prohibits the use of lie detector test for job applicants and employees of companies engaged in interstate commerce
- exceptions are made for certain situations, including law enforcement and national security
- there is a federal posted requirement
10
Q
The Employee Retirement Income Security Act (ERISA) - 1974
A
- doesn’t require employers to establish pension plans, but governs how those plans are managed once they have been established
- establishes uniform minimum standards to ensure that employee benefit plans are established and maintained in a fair and financially sound manner
- protects employees covered by a pension plan from losses in benefits due to job changes, plant closings, bankruptcies, or mismanagement
- protects plan beneficiaries
- covers most employers engaged in interstate commerce
- public-sector employees and many churches are not subject to ERISA
- employers that offer retirement plans must also conform with the IRS code in order to receive tax advantages
11
Q
The Equal Pay Act (an Amendment to FLSA) - 1963
A
- equal pay requirements apply to all employers
- amendment to the Fair Labor Standards Act (FLSA) and enforced by the Equal Employment Opportunity Commission (EEOC)
- prohibits employers from discriminating on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work on jobs requiring equal skill, effort, and responsibility, and which are performed under similar working conditions
- does not address the concept of compensable worth
12
Q
The FAA Modernization and Reform Act - 2012
A
- amend the Railway Labor Act to change union certification election processes in the railroad and airline industries and impose greater oversight of the regulatory activities of the National Mediation Board (NMB)
- requires the Governemnet Accountability Office (GAO) initially to evaluate the NMB’s certificaiton procedures and then audit the NMB’s operations every two years
13
Q
The Fair and Accurate Credit Transactions Act (FACT) - 2003
A
- amendments to the Fair Credit Reporting Act, providing certain requirements to third-party investigations of employee misconduct charges
- employers are released from obligations to disclose requirements and obtain employee consent if the investigation involves suspected misconduct, a violation of the law or regulations, or a violation of preexisting written employer policies
- a written plan to prevent identity theft is required
14
Q
The Fair Credit Reporting Act (FCRA) - 1970, amended 2011
A
- the first major legislation to regulate the collection, dissemination, and use of consumer information, including consumer credit information
- requires employers to notify any individual in writing if a credit report may be used in making an employment decision
- employers must also get written authorization from the subject first
- protects the privacy of background investigation information and provides methods for ensuring that information is accurate
- employers who take adverse action against a job applicant or current employee based on information contained in the prospective or current employee’s consumer report will have additional disclosures to make to that individual
15
Q
The Fair Labor Standards Act (FLSA) - 1938
A
- federal laws that establish the foundation for employee treatment
- a major influence in how people are paid, in employment of young people, and in how records are to be kept on employment issues such as hours of work
- introduced a maximum 44-hour, 7-day workweek
- established a national minimum wage
- guaranteed time-and-a-half for overtime in certain jobs
- prohibited most employment of minors in “oppressive child labor”
- applies to employees engaged in interstate commerce or employed by an enterprise engaged in commerce or in the production of goods for commerce, unless the employer can claim an exemption from coverage
- the first federal law to require employers to maintain records on employee race and sex identification
16
Q
Provisions and Protections of FLSA
A
- covered employees include public agencies, private employers who annual gross sales exceed $500,000, those operating a hospital or a school for mentally or physically disabled or gifted children, and a preschool, an elementary or secondary school, or an institution of higher education (profit or non-profit)
- if an employee’s work regularly involves commerce between states, they would be covered (communications or transportation; regular use of mail/telephone/telegraph for insterstate communication or keep records of interstate transactions; handle shipping and receiving goods moving in interstate commerce; regularly cross state lines in the courst of employment; work for independent employers who contract to do clerical, custodial, maintenance, or other work for firms engaged in interstate commerce or in the production of goods for interstate commerce
- the FLSA establishes a federal minimum wage that has been raised from time to time since the law was originally passed
- the FLSA prohibits shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions of the law
17
Q
Recordkeeping Requirements of FLSA
A
- methods for determining whether a job is exempt or nonexempt from the overtime pay requirements of the act
- records include employee’s full name and SSN, address (including ZIP), birth date (if younger than 19), sex, occupation, time and day of week when employee’s workweek begins, hours worked each day and total hours worked each workweek, basis on which employee’s wages are paid (hourly, weekly, piecework), regular hourly pay rate, total daily or weekly straight-time earnings, total overtime earnings for the workweek, all additions or deductions frmo the employee’s wages, total wages paid each pay period, date of payment and the pay period covered by the payment
- there is no limit in the FLSA to the number of hours employees ages 16 and older may work in any workweek
- employers must retain all payroll records, collective bargaining agreements, sales, and purchase records for at least 3 years
- time cards, piecework records, wage rate tables, and work and time schedules should be retained for at least 2 years
- a workplace poster is required to notify employees of the federal minimum wage
18
Q
Federal Child Labor Provisions of the FLSA
A
- workers younger than 14 are restricted to jobs such as newspaper delivery to local customers, babysitting on a casual basis, acting in movies/TV/radio/theater, working as a home worker gathering evergreens and making evergreen wreaths
- no person under 18 may work in any of the 17 most hazardous jobs (manufacturing or storing explosives; driving a motor vehicle or working as an outside helper on motor vehicles; coal mining; forest fire fighting and forest fire prevention, timber tract, forestry service, and occupations in logging and sawmilling; using power-driven woodworking machines; exposure to radioactive substances and ionizing radiation; using power-driven hoisting apparatuses; using power-driven metal-forming, punching, and shearing machines; mining other than coal; using power-driven meat-processing machines, slaughtering, meat and poultry packing, processing or rendering; using power-driven bakery machines; using balers, compactor, and power-driven paper-products machines; manufacturing brick, tile, and related products; using power-driven circular saws, band saws, guillotine shears, chainsaws, reciprocating saws, wood chippers, and abrasive cutting discs; trenching or excavating
- workers age 14 and 15: all work must be performed outside school hours; may not work more than 3 hours on a school day, including Friday; may not work more than 18 hours per week when school is in session; may not work more than 8 hours per day or 40 hours per week when school is not in session; may not work before 7a or after 7p except from June 1 - Labor Day, when nighttime shifts are extended to 9p; a work permit from the school district is required until they reach the age of 18
- for workers age 16 and 17 there is no resctriction on the number of hours that can be worked per week
19
Q
Overtime Computation in the FLSA
A
- required at a rate of 1.5 times the normal rate of pay for all hours worked over 40 in a single workweek
- an employer may designate the day and time a workweek begins but that must be maintained until there is a legitimate business reason for changing it
- compensating time off is permitted under the FLSA if it is given the same rates required for overtime pay
20
Q
Enforcement of the FLSA
A
- provisions are enforced by the US Dept. of Labor’s Wage & Hour Divisions
- if a violation is found, the agency has the authority to make recommendations for changes that would bring the employer into compliance
- retaliation against any employee for filing a complaint under the FLSA, or in any other way availing him/herself of the legal rights it offers, is subject to additional penalties
- willful violations may bring criminal prosecution and fines up to $10,000
- employers who get convicted a second time for willful violations can find themselves in prison
21
Q
Foreign Corrupt Practices Act (FCPA) - 1997
A
- prohibits American companies from making bribery payments to foreign officials for the purpose of obtaining or keeping business
22
Q
The Health Information Technology for Economic and Clinical Health (HITECH) Act - 2009
A
- requires that anyone with custody of personal health records send notification to affected individuals if their personal health records have been disclosed, or the employer believes they have been disclosed, to any unauthorized person
- made several changes to HIPAA, including the establishment of a federal standard for security breach notifications that requires covered entities, in the event of a breach of any (protected) health information (PHI), to notify each individual whose PHI has been disclosed without authorization
23
Q
The Health Insurance Portability and Accountability Act (HIPAA) - 1996
A
- ensures that individuals who leave or lose their jobs can obtain health coverage, even if they or someone in their family has a serious illness or injury or is pregnant
- provides privacy requirements related to medical records for individuals as young as 12
- limits exclusions for preexisting conditions and guarantees renewability of health coverage to employers and employees, allowing people to change jobs without the worry of loss of coverage
- restricts the ability of employers to impose actively-at-work requirements as preconditions for health plan eligibility
24
Q
The Immigration and Nationality Act (INA) - 1952
A
- the foundation on which all following immigration laws have been built
- addresses employment eligibliity and employment verification
- defines conditions for the temporary and permanent employment of aliens in the US (alien = any person lacking citizenship or status as a national of the US: resident or nonresident, immigrant or nonimmigrant, documented and undocumented)
25
The Immigration Reform and Control Act (IRCA) - 1986
- the first law to require new employees to prove both their identity and their right to work in this country
- regulations created the I-9
- prohibits discrimination against job applicants on the basis of national origin or citizenship
- establishes penalties for employers who hire illegal aliens
26
The IRS Intermediate Sanctions - 2002
- guidelines for determining reasonable compensation for executives of nonprofit organizations
- allows the IRS to impose penalties when it determines that top officials have received excessive compensation for their organizations
27
The Labor-Management Relations Act (LMRA; Taft-Hartley Act) - 1947
- first national legislation that places controls on unions
- prohibits unfair labor practices by unions and outlaws closed shops (where union membership is required in order to get and keep a job)
- requires both parties to bargain in good faith and covers nonmanagement employees in private industry who are not covered by the Railway Labor Act
28
The Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act) - 1959
- outlines procedures for redressing internal union problems, protects the right of union members from corrupt or discriminatory labor unions, and applies to all labor organizations
- unions must conduct secret elections (results can be reviewed by DOL
- a Bill of Rights guarantees union members certain rights, including free speech
- convicted felons and members of the Communist Party cannot hold office in unions
- annual financial reporting from unions do the DOL is required
- all union offical have a fiduciary responsibility in managing union assets and conducting business of the union
- union power to place subordinate organizations in trusteeship is limited
- minimum standards for union disciplinary action against its members are provided
29
The Mine Safety and Health Act - 1977
- converted the existing Mine Enforcement Safety Administration (MESA) to the Mine Safety and Health Administration (MSHA)
- brought all coal, metal, and nonmetal mining operations under the same DOL jurisdiction
30
MSHA provisions and protections
- reqiures secretaries of Labor an dHealth, Education, and Welfare to create regulations governing the country's mines
- all mines are covered if they are involved in commerce
- regulations that implement this law specify that employees must be provided with certain protective equipment (respiration and fire prevention, etc.)
31
MSHA recordkeeping requirements
- employers must inspect their worksites and document the results, reflecting hazards and actions taken to reduce or eliminate such
- employees are to be given access to info re: accident prevention, factal accident yearly stats, instructions on specific hazards they will face while working in the mine
- requirements includ the written content of emergency response plans, emergency mapping, and rescue procedures
- individual employee exposure records must be maintained
- each mine operator is required to conduct surveys of mine exposures and hazards, a plan to deal with the problems, and a record of results
- must be made to MSHA inspectors upon request
32
MSHA standards
- enforces mine safety standards such as ventilation, chemical exposure, noise, forklifts and other mining equipment, mine shoring, etc.
- MSDS sheets must be available to employees in mining as other industries overseen by OSHA
33
MSHA enforcement
- a team of federal inspectors that conduct on-site audits of mining operations
- has the authority to cite mine operators for violations of its regulations (can carry $1000/day penalty in some circumstances)
34
The National Industrial Recovery Act - 1933
- proposed the creation of "Codes of Fair Competition" for each of several differetn industries (every business would have to identify with and belong to a trade association, and the association would have to create a Code of Fair Competition;" antitrust laws would be suspended in favor of the code
- the code would have to be aprpoved by the US president, and administration would issue federal licenses to every business in the country
- businesses that refuse to participate could end up with a suspended license; financial penalties as well
- declared unconstitutional by the US Supreme Court in 1935 and replaced by the National Labor Relations Act
35
The National Labor Relations Act (NLRA; Wagner Act) - 1935
- provided that employees have a right to form unions and negotiate wage and hour issue with employers on behalf of the union membership
- employees have the right to organize, join unions, and engage in collective bargaining and other "concerted activities"
- protects against all unfair labor practices by employers
- established the National Labor Relations Board (NLRB), which helped define fair labor practices and has the power to accept and investigate complaints of unfair labor practices by either management or labor unions; plays a judicial role in an administrative setting
- key provisions: right of workers to organize into unions for collective bargaining, the requirement of employers to bargain in good faith when employees have voted in favor of a union to represent them, requirement that unions represent all members equally, covers nonmanagement employees in private industry who are not already covered by the Railray Labor Act
36
The Needlestick Safety and Prevention Act - 2000
- modifies Occupational Safety and Health Act
- sharps (needles, puncture devices, knives, scapels, other tools that can harm either the person or someone else)
provides rules related to handling sharps, disposing of them, and encouraging invention of new devices that will reduce or eliminate the risk associated with injury due to sharps
- sharps injuries are to be recorded on the OSHA 300 long with "privacy case" listed and not employee's name
- objective is to reduce the amount of injury and subsequent illness due to puncture, stab, or cut wounds
- communication requirements including employment poster content requirements
37
The Norris-LaGuardia Act - 1932
- prohibits "yellow dog" contracts (where employees promise employers they would not join unions)
- prohibited fedearl courts from issuing injunctions of any kind against peaceful strikes, boycotts, or picketing when used by a union in connection with a labor dispute
- defined labor dispute to include any disagreement about working conditions
38
The Occupational Safety and Health Act (OSHA) - 1970
- an administrative agency within the US DOL
- also created National Institute of Occupational Safety and Health (NIOSH), which resides in the Cenders for Disease Control (CDC)
39
OSHA provisions and protections
- holds employers accountable for providing a safe and healthy working environment ("free frmo recognized hazards that are likely to cause death or serious injury")
- hold employers responsible for abiding by all safety rules and regulations in the workplace
- some provisions require notices be posted in the workplace covering some of the OSHA requirements
- applies to all employers regardless of the employee population size
40
OSHA recordkeeping requirements
- conduct and document inspections of the workplace, looking for safety and health hazards
- document and make available to employees the records of hazardous materials and how they must be properly handled
- employers with 10+ employees must summarize all injury and illness instances and post the summary in a conspicuous place within the workplace from Feb. 1 to April 30 each year (certain employers are exempt)
- any time there is a serious or fatal accident, a full incident report must be prepared by the employer and maintained in the safety file (must be maintained for a minimum of 5 years from the date of the incident)
- log of occupational injury or illness must include: a record of each incident resulting in medical treatment (other than first aid), loss of consciousness, restriction of work or motion, or transfer or termination of employment
- medical/construction/manufacturing industries, or nuclear materials have other requirements
- key to compliance: communication with employees
- training provided by employers to meed hazard communication requirement
- summary: periodic safety inspections of the workplace, injury or illness incident reports, annual summary of incidents during the previous calendar year, Injury and Illness Prevention Program (if required by rules governing your industry), employee training on safety procedures and expectations, records on training participation, MSDS for each chemical used in the workplace (made available to all employees in a well-marked file or binder that can be accessed at any time during work hours)
41
OSHA enforcement
- onsite visits that are conducted without advance notice
- onsite inspections or phone/fax investigation
- highly trained compliance officers
- inspection priorities: imminent danger, fatalities and catastrophes, worker complaints, referrals, follow-ups, planned or programmed investigations
42
OSHA "Normal" safety and health standards
- if OSHA determines that a specific standard is needed, any of several advisory committees may be called upon to develop specific recommendations
- 2 standing committees, and ad hoc committees may be appointed to examine special areas of convern to OSHA
- all advisory committes must have members representing management, labor, and state agencies, as well as the Secretary of Health and Human Services
- occupational safety and health professions and the general public may also be represented
43
OSHA "Emergency Temporary" safety and health standards
- under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately
- must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them
- OSHA publishes emergency standard in Federal Register, where it also serves as a proposed permanen t standard
- subject to the usual procedure for adopting a permanent standard except that a final ruling must be made within 6 months
- validity may be challenged in appropriate US Court of Appeals
44
The Omnibus Budget Reconciliation Act (OBRA) - 1993
- reduse compensation limites in qualified retirement programs and triggers increased activity in nonqualified retirement programs
- calls for termination of some plans
45
The Pension Protection Act (PPA) - 2006
- requires employers that have underfunded pension plans to pay a higher premium to the Pension Benefit Guarantee Corporation (PBGC)
- requires employers that terminate pension plans to provide additional funding to those plans
- changes to rules about IRAs
46
The Personal Responsibility and Work Opportunity Reconciliation Act - 1996
- requires all states to establish and maintain a new hire reporting system designed to enhance enforcement of child support payments
- requires welfare recipients to begin working after 2 years of receiving benefits (states may exempt parents with children younger than 1 from work requirements - only once, and are still subject to the 5-year time limit for cash assistance)
47
The Portal-to-Portal Act - 1947
- this law defines "hours worked" and establishes rules about payment of wages to employees who travel before and/or after their scheduled work shift
- provides that minimum wages and overtime are not required for "traveling to and from the actual place of performance of the principal activity or activities which such employee is to perform" or for "activities which are preliminary to or postliminary to said principal activity or activities" unless there is a custom or contract to the contrary
48
The Railway Labor Act - 1926
- created to allow railway employees to organize into labor unions
- expanded to cover airline employees
- covered employers are encouraged to use the Board of Mediation, which is now the National Mediation Board, a permanent independent agency
49
The Rehabilitation Act - 1973; amended in 1980
- replaced the Vocational Rehabilitation Act and created support for states to create vocational rehabilitation programs
- used to say handicapped, now says disabled
- key employment provisions: requires nondiscrimination and affirmative action in hiring disabled workers by federal agencies within the executive branch (501); requires nondiscrimination and affirmative action by federal contractors and subcontractors with contracts valued at $10,000 or more (503); requires employers subject to the law to provide reasonable accommodation for disabled individuals who can perform the major job duties with or without accommodation (504)
50
The Retirement Equity Act (REA) - 1984
- provides certain legal protections for spousal beneficiaries of qualified retirement programs
- prohibits changes to retirement plan elections, spousal beneficiary designations or in-service withdrawals without the consent of a spouse
- changing withdrawal options does not require spousal consent
- permits plan administrators to presume spousal survivors annuity and reduce primary pension amounts accordingly
- specific written waivers are required to avoid spousal annuity
51
The Revenue Act - 1978
- added sections to Internal Revenue Tax Code relevant to employee benefits: Section 125 (Cafeteria Benefit Plans) and Section 401(k) (originally a pretax savings program for private sector employees known as Individual Retirement Accounts (IRAs), subsequently expanded to a second plan opportunity known as "Roth IRA" that permitted funding with after-tax savings)
52
The Sarbanes-Oxley Act (SOX) - 2002
- addresses the need for oversight and disclosure of information by publicly traded companies
53
SOX provisions and protections
- holds corporate officers accountable for proper record-keeping and reporting of financial information, including internal control systems to assure those systems are working properly
- requirements for reporting any unexpected changes in financial condition, including potential new liabilities like lawsuits (including employee complaints of illegal employment discrimination)
- requires administrators of defined contribution plans to provide notice of covered blackout periods and provides whistleblower protection for employees
- 2014: Lawson v. FMR LLC, 6-3 decision held that all contractors and subcontractors of publicly held companies are subject to the SOC, even if they are not publicly held (this means basically everyone is now subject to the whistleblower protections of the SOX)
54
SOX recordkeeping requirements
- internal control systems are required to assure that public disclosure of financial information is done as required
55
SOX enforcement
- enforcement is done by private-firm audits overseen by the Public Company Accounting Oversight Board (PCAOB), a nonprofit corporation created by the act to oversee accounting professionals who provide independent audit reports for publicly traded companies (it essentially audits the auditors)
- violators can find themselves subject to fines and/or up to 20 years imprisonment for altering, destroying, mutilating, concealing, or falsifying records, documents, or tangible objects with the intent to obstruct, impede, or influence a legal investigation
56
The Securities and Exchange Act - 1934
- when companies "go public" by issuing common stock for trade, it is done on the "primary market"
- this law provides governance in the "secondary market" which is all trading after the initial public offering
- also created the Securities and Exchange Commission, which has oversight authority for the trading of stocks in this country
- it extends the "disclosure" doctrine of investor protection to securities listed and registered for public training on any of the US exchanges
57
The Service Contract Act - 1965
- calls for payment of prevailing wages and benefit requirements to all employees providing service under the agreements
- contracts greater than 2500 for contractors or subcontractors are covered (saftey and health standards also apply)
- enforced by the Wage and Hour Division of the DOL
- SCA safety and health requirements enforced by OSHA
58
The Sherman Anti-Trust Act - 1890
- protections against monopolies and cartels
- used by federal prosecutors to break up the Standard Oil Company into smaller units
- attempting to restrict competition or fix prices can be seen as a violation of this law
59
The Small Business Job Protection Act - 1996
- increased federal minimum wage levels and provided some tax incentives to small business owners to protect jobs and increase take-home pay
- amended Portal-to-Portal Act for employees who used employer-owned vehicles
- created the SIMPLE 401(k) retirement plan to make pension plans easier for small businesses
60
The Social Security Act - 1935
designed to help senior citizens when that group was suffering a poverty rate of 50 percent
- includes social welfare and social insurance programs that can help support disabled workers who are no longer able to earn their wages
- Federal Insurance Contributions Act (FICA) - payroll tax rates
- retirement, survivors benefits, disability insurance, TANF, Medicare (aged/disabled), Medicaid (state grants), SSI, CHIP, Patient Protection and Affordable Care Act
61
The Tax Reform Act - 1986
- extensive changes to IRS tax code, including a reduction in tax brackets and all tax rates for individuals
- requires all dependent children to have SSNs
- questions about answers for W4s can be found here
62
The Taxpayer Relief Act - 1997
- gives taxpayers a way to lower their tax payments
| - created new savings programs called Roth IRAs and Education IRAs
63
The Trademark Act - 1946
- Lanham (Trademark) Act
- created federal protections for trademarks and service marks
- set forth the requirements for registering a trademark or service mark to obtain those legal protections
64
The Unemployment Compensation Amendments (UCA) - 1992
- established 20% as the amount to be withheld from payment of employee savings accounts when leaving an employer and not placing the funds (rolling over) into another tax-approved IRA or 401(k)
65
The Uniformed Services Employment and Reemployment Rights Act (USERRA) - 1994
- protects the employment/reemployment/retention rights of anyone who voluntarily or involuntarily serves or has served in the uniformed services
- requires employers continue paying for benefits as much as they had before
- requires employers continue giving credits for length of service as though military service = company service
66
The Vietnam Era Veterans Readjustment Assistance Act - 1974 (as amended by the Jobs for Veterans Act (JVA))
- covers disabled vets. those who served in the military during war/campaign/expedition for which a campaign badge was awarded, those who participated in a US military operation for which and Armed Forces service medal was awarded, recently separated veterans (within 36 months from discharge/release)
- applies to all federal contractors with a contract >25,000, regardless of number of employees
- requires all employers subject to the law to post their job openings with their local state employment service (exceptions: jobs lasting 3 or less days, jobs that will be filled by an internal candidate, jobs that are senior executive positions
- affirmative action outreach and recruiting of veterans are required for federal contractors meeting the contract value threshold
67
The Wagner-Peyser Act - 1933 (as amended by the Workforce Investment Act WIA) - 1988)
- created employment services offices
- provided job seekers with assistance in their job search, assistance in searching jobs for unemployment insurance recipients, and recruitment services for employers
- WIA created "one stop" centers; federal government contracts with states to run employment service offices
68
The Walsh-Healey Act (Public Contracts Act) - 1936
- assures government pays a fair wage to manufacturers and suppliers and goods for federal government contracts in excess of $10,000
- overtime pay requirements, minimum wage = prevailing wage, no current convicts or anyone under 16
- Defense Authorization Act (1968) later excluded federal contractors from overtime payments in excess of 8 hours in a day
69
The Work Opportunity Tax Credit (WOTC) - 1996
- provides federal income tax credits to employers who hire from certain targeted groups of job seekers who face employment barriers (groups can change - basically disadvantaged in some way)
70
The Labor Management Reporting and Disclosures Act - 1959
- provides for the reporting and disclosure of certain financial transactions and administrative practices of labor organizations and employers to prevent abuses in the administration of trusteeships by labor organizations and to provide standards with respect to the election of officers of labor organizations
71
Whistle-Blowing
- protections against retaliation are covered in various laws, including the Civil Rights Act, OSHA, MSHA, Sarbanes-Oxley Act, ADA, etc.
- whistleblower laws usually apply to public sector employees and employees of organizations contracting with the federal government or state governments
- designed to protect individuals who publicly disclose information about corrupt practices or illegal activities within their employer's organization
72
The Americans with Disabilities Act (ADA) - 1990 (as amended by the Americans with Disabilities Act Amendments Act (ADAAA) - 2008)
- for 15+ employees
| - became fully effective for all employers with 15+ on July 26, 1992
73
ADA/ADAAA provisions and protections
- employers may not discriminate against a physically or mentally disabled individual in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment
- qualified individuals with a disability are to be treated as other job applicants and employees are treated
74
ADAAA - 2008
- Sutton v. United Airlines; Toyota Motor Manufacturing, Kentucky, Inc. v. William made Congress feel the Court had been too restrictive in its interpretation of who qualifies as disabled
- a disability is now defined as "an impairment that substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment
- now, many more people are captured with the definition of disabled as a result of recent changes (used to be: people who had a disability under control were not disabled; now because the law prohibits a consideration of either medication or prosthesis, they are)
75
ADAAA major life activity definition
- employers are required to consider as disabled anyone with a condition that "substantially limits" but does not "significantly restrict" a major life activity
- major life activity = caring for oneself, seeing, hearing, touching, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working; also major bodily functions like normal cell growth, reproduction, immune system, blood circulation, etc.
76
ADAAA conditions considered disabilities
- diabetes, cancer, HIV/AIDS, MS, cerebral palsy, cystic fibrosis
77
ADAAA "essential job function" definition
- a portion of a job assignment that cannot be removed from the job without significantly changing the nature of the job
78
ADAAA job accommodation
- we select people who are qualified for the performance of the essential functions, with or without accommodation
- accommodation is situationally dependent
- employers are obligated to search for alternatives that could satisfy the accommodation request only when the specific request cannot be reasonably accommodated
- the Job Accommodation Network (JAN) can become a resource
- employer must consider if making an accommodation would be an "undue hardship" considering all it would involve
79
ADAAA recordkeeping requirements
- no requirement in ADA that requires employers to create job descriptions but smart employers are doing so to identify physical and mental requirements of each job
- it is not necessary for an employer to redesign job content to make a job accommodation
- EEOC procedures prohibit employers from inviting job applicants to identify their disability status prior to receiving a job offer
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ADA enforcement
- the EEOC enforces Title 1 of the ADA and will accept complaints of discrimination based on mental or physical disability
- once a complaint is filed with the EEOC, all conversation about the complaint must be directed through the EEOC
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The Civil Rights Act (Title VII) - 1964
- employment protections: race, color, religion, national origin, sex
- penalties for violations: actual damages, compensatory damages, punitive damages
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The Civil Rights Act - 1991
- provided for employees to receive a jury trial if they wanted
- established requirements for any employer defense
- placed a limitation on punitive damage awards by using a sliding scale depending on the size of the employer organization
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The Drug-Free Workplace Act - 1998
- requires some employers to maintain a drug-free workplace
- provisions and protections: applies to federal contractors and all organizations receiving grants from the federal government; employee notification about the policy must include information about the consequences of failing a drug test; when an employee has been convicted of a criminal drug violation in the workplace, the employer must notify the contracting agency within 10 days
- recordkeeping requirements: covered employers are required to publish a written policy statement that clearly covers all employees or just those who are associated with the federal contract or grant; each covered employee must be given a copy of the policy statement and it must contain a list of prohibited substances
- enforcement: failing to maintain a drug-free workplace can result in the suspension of payments for contract or grant activities, suspension or cancellation of grant or contract, up to 5 years' prohibition for any further contracts or grants; an employee who fails a drug test must be referred to a treatment program or given appropriate disciplinary action
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The Equal Employment Opportunity Act (EEOA) - 1972
- amended the Civil Rights Act of 1964 by redefining terms and also required a new employment posted for all subject work locations explaining that "EEO is the Law"
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The Genetic Information Nondiscrimination Act (GINA) - 2008
- prohibits employers from using genetic information to make employment decisions
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Guidelines on Discrimination Because of Sex - 1980
- EEOC published to help employers understand what constituted unwanted behavior and harassment
- issued long before the Supreme Court considered the leading cases on sexual harassment
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The Lilly Ledbetter Fair Pay Act - 2009
- amended the Civil Rights Act of 1964 and states that the clock will begin running anew each time an illegal act of discrimination is experienced by an employee
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The Pregnancy Discrimination Act - 1978
- modified the Civil Rights Act of 1964
- defined pregnancy as protected within the definition of "sex" for the purpose of coverage under the Civil Rights Act
- explicitly said no employer shall illegally discriminate against an employee because of pregnancy
- definespregnancy as a temporary disability and requires accommodation on the job if necessary
- guarantees the employee rights to return to work in the same or similar job with the same pay following her pregnancy disability
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The Uniform Guidelines on Employee Selection Procedures - 1978
- for covered employers with 15+ people on the payroll
- 2 types of illegal employment discrimination: adverse or disparate treatment and adverse or disparate impact
- to avoid illegal discrimination, guidelines require that all steps in a hiring decision be validated for the job being filled
- validity of a selection can be determined through a validity study or by applying a job analysis to demonstrate the specific relationship between the selection device and the job requirements
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The Age Discrimination in Employment Act (ADEA) - 1967 (amended in 1978, 1986)
- for 20 or more employees
- first protected age range 40-70; amendments have been made to remove the upper limit
- remedies are the same as under Civil Rights Act: reinstatement, back pay, front pay, and payment for benefits in arrears
- some exceptions to upper age limit (e.g., airline pilots may not fly commercial airplances after 65)
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The American Recovery and Reinvestment Act (ARRA) - 2009
- aimed to create government infrastructure projects such as highways, buildings, dams, and such
- an attempt to find ways to re-employ many workers who had been unemployed since the great recession began in 2007
- provided partial payment of COBRA premiums for those who had not found permanent job placement
- also modified HIPAA privacy rules: applies HIPAA's security and privacy requirements to business associates
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The Consolidated Omnibus Budget Reconciliation Act (COBRA) - 1986
- requires employers with group health insurance programs to offer terminating employees the opportunity to continue their health plan coverage after they are no longer on the payroll or no longer qualify for benefits coverage because of a change in employment status
- the cost must be at a group rate; employer can add a small administrative service charge
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The Older Workers Benefit Protection Act (OWBPA) - 1990
- prevent staff reduction programs from targeting more senior workers as a way of addressing expenses
- cannot: use an employee's age as the basis for discrimination in beneifts; target older workers during staff reductions in downsizing; require older workers to waive their rights without the opportunity for review with their legal advisor
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Executive Order 11246: Affirmative Action - 1965
- for 50-100 or more employees
- Lyndon B. Johnson saw the Civil Rights Act was being ignored
- he said if a company wanted to receive revenue by contracting with the federal government, it would have to implement equal employment opportunity and establish outreach programs for minorities and women
- Office of Federal Contract Compliance Programs (OFCCP) enforces it
- federal contractors must meet several conditions in return for contracting privileges: abide by Federal Acquisition Regulation (FAR), affirmative action for the disabled and veterans
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The Family and Medical Leave Act (FMLA) - 1993 (expended 2008, 2010)
- new benefits for some employees in the country
- leaves lasting up to 12 weeks in a 12-month period; unpaid unless the employer has a policy to pay for the leave time
- benefit plans will still be paid
- qualifying employeers must have more than 1 years of service
- to cover childbirth or adoption, to care for a seriously ill child/spouse/parent, or in case of employee's own serious illness
- employee is guaranteed to return to the same job and same pay, under the same conditions and before
- provisions for Military Caregiver Leave lasting up to 26 weeks
- provides for "light Duty Assignments," which do not count against FMLA leave entitlement
- employment poster requirement
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The Mental Health Parity Act (MHPA) - 1966
- requires health issuers and group health plans to adopt the same annual and lifetime dollar limits for mental health benefits as for other medical benefits
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The Mental Health Parity and Addition Equity Act (MHPAEA) - 2008
- amendment to the Mental Health Parity Act of 1996
- requires that plans that offer both medical/surgical benefits and/or substance abuse treatment benefits provide parity between both types of benefits
- all financial requirements and treatment requirements must be the same
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The National Defense Authorization Act - 2008
- the origin of benefit provisions under FMLA for leaves due to military reasons (notice of deployment, return from deployment, treatment for an injury sustained wile on deployment)
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The Patient Protection and Affordable Care Act (PPACA) - 2010
- created health insurance trading centers in each state where employees and those who are unemployed can shop for health insurance coverge
- individuals and business owners of organizations with fewer than 100 workers can purchase insurance through these exchanges
- applies to all employers with 50+ full-time workers on the payroll
- employers with <50 are exempt from coverage under the law
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Executive Order 13706: Paid Sick Leave for Federal Contractors - 2015
- federal contractors are directed to provide up to 56 hours of paid sick leave annually
- the leave is accrued at the rate of an hour for very 30 hours worked and it may be carried over from year to year
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The Worker Adjustment and Retraining Notification (WARN) Act - 1988
- for 100+ employees
- prevented employers from just shutting the door and walking away without any worker benefits
- plant closing = the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees exclusing any part-time employees
- mass layoff = reduction in force that is not the result of a plant closing and results in an employment loss at the single site of employment during any 30-day period for at least 500 employees to be laid off frmo a workforce of 500 or more, or when at least 33% of the workforce (excluding any part-time employees) are going to be removed from the payroll in a layoff where there are a total of 50 to 499 workers before the layoff
- required actions: requires 60 days' advance notice to employees of plant closing or mass layoff (employment loss of 50 or more); notification to public officials/community leaders, they cane be invited to participate in the process of finding new jobs for the workers; there is a provision that an employer can pay 60 days' separation allowance if no notice is given
- exemptions to notice requirement: completion of a contract or project that employers understood would constitute their term of employment; strikes or lockouts not intended to evade this law's requirements; layoff less than 6 months; state and local governments are downsizing; few than 50 people will be laid off or terminated from a single site; 50-499 workers lose their jobs but that number is less than 33% of the active workforce at a single site
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The Civil Service Reform Act - 1978
- for federal government employees
- The Office of Personnel Management (OPM): the executive branch's HR dept.
- The Merit Systems Protection Board (MSPB): prohibits consideration of marital status, political activity, or political affiliation in dealing with federal civilian employees; also created the Office of Special Counsel, which accepts employee complaints and investigates and resolves them
The Federal Labor Relations Authority Act (FLRA): enforces civilian employee rights to form unions and bargain with their agencies; establishes standards of behavior for union officers (standards are enforced by the Office of Labor-Management Standards in the DOL
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The Congressional Accountability Act - 1995
- requires Congress and its affiliated agencies to abide by 12 specific laws that already applied to other employers
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The False Claims Act (Lincoln Law) - 1863
- prohibits dishonest transactions (like selling defective food and arms to the Union military)
- prohibits making and using false records to get those claims paid
- prohibits selling the government goods that are known to be defective
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The Homeland Security Act - 2002
- consolidate security efforts related to protecting US geography
- Immigration and Customs Enforcement (ICE) is part of it
- E-Verify is part of it; intended to assist in rapid verification of Social Security Numbers and confirm that the individual attached to the SSN has a valid right to work in this country
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The Privacy Act - 1974
- governmental agencies must make known to the public their data collection and storage activities, and must provide copies of pertinent records to the individual citizen when requested, with some specific exemptions (law enforcement, congressional investigations, census use, "archival purposes," and other administrative purposes
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The USA Patriot Act - 2001
- passed immediately following 9/11
- gives the government authority to intercept wire, oral, and electronic communications relating to terrorism, computer fraud, and abuse offenses; also provides the authorization for collecting agencies to share the information they collect in the interest of law enforcement
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Whistle-Blower Laws
- activate protection for federal employees when they "blow the whistle" on their federal employer
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Employment Visas for Foreign Nationals
- under some circumstances, it is possible for people from other countries to come work in the US; there are several classifications of workers that can be used depending on the type of work to be done and the level of responsibilities
- E Nonimmigrant Visas (see E-1 and E-2)
- E-1 Treaty Traders:
- E-2 Treaty Investors
- H Visas (see below)
- H1-B Special Occupations and Fashion Models
- H1-C Registered Nurse Working in a Health Professional Shortage Area
- H-2A Temporary Agricultural Workers
- H-2B Temporary NonAgricultural Workers
- H-3 Nonimmigrant Trainee
- L-1 Intracompany Transferee
- L1-A Managers and Executives
- Specialized Knowledge
- O-1 Alien of Extraordinary Ability in Arts, Science, Education, Business, Athletics
- P Visa Categories
- EB Employment-Based Visas (see below)
- EB-1 Alien of Extraordinary Ability
- EB-2 Alien of Extraordinary Ability
- EB-3 Skilled Workers
- EB-4 Certain Special Immigrants
- EB05 Immigrant Investors
