Exam 2 Study Guide Flashcards
(39 cards)
Employment at Will
Legal doctrine that states that either the employer or employee can terminate the relationship at any time
Exceptions to employee at will
Public Policy, Implied Contracts, Application of federal law such as those governing discrimination
Equal Pay Act (1963)
Employeer cannot pay different salaries to men and women doing the same job that requires the same skill, effort, responsibility, and under similar working conditions
Equal Pay Act Defense
Seniority, superior qualifications, more experience, more merit/greater quality of production, revenue producing marketplace
Title VII (7) 1964
Employeer cannot hire, fire, suspend, or discipline based on race, national origin, gender, and religion. This applies to government agencies, federal government employees, labor unions, and employers with more than 15 employees (SEXUAL ORIENTATION IS NOT PROTECTED UNDER THIS)
Age Discrimination in Employment Act (ADEA)
Prohibits discrimination for firing/hiring employees based on age, that are 40 years or older. This applies to businesses with 20 or more employees and whose potential employee was applied and qualified, over 40, and reject in circumstances that implied discrimination
Age Discrimination in Employment Act (ADEA) - Defense
Business necessity-defense to claims of unintentional discrimination asserting that a legit hiring practice is a certain necessity, even if it has discriminator effect
ADA (1990)
If your potential employee is disabled, you cannot discriminate based on disability AND you have to make a reasonable accommodation for the disabled. Also cannot discriminate based on a perceived disability (Had Cancer previously)
Family Medical Leave Act (FMLA)
Federal law that requires organizations to provide up to 12 weeks of unpaid leave to attend to family health issues or a newborn child. More than 50 employees
Worker’s Compensation
Injured in the course of employment, you are paid a benefit so you do not have to sue for negligence
Occupational Safety and Health Act: Two fold Process
- To require employers to meet certain specific, federally mandated safety standards
- To impose a general duty on employers to keep their workplace safe
Economic Reality Test
4 Part Test used to look at employment
- Proposed employer’s right to control or dictate the activities of the proposed employee (coaches)
- Proposed employer’s right to discipline/fire the proposed employee
- Payment of “wages” and particularly the extent to which the proposed employee is dependent on the payment of wages or other benefits for his daily living expenses
- Whether the task performed by the proposed employees was an integral part of the proposed employer’s business
Constitutional Law: Application
- Constitutional law involves the application of the federal and state and local government and whether their actions violate one or more terms of the U.S. Constitution
- Purely private entities are generally not subject to constitutional claims
- State ation must be shown to pro
Constitutional Law: State Action
- Except for the Thirteenth Amendment’s prohibition on slavery, the U.S. constitution requires state action (otherwise known as government action)
- State actors are those who act in furtherance of their positions as employees of governmental agencies
- Examples: public school teachers, police officers, IRS employees, county government employees, staff at the DMV, athletic directors at state-run universities
Constitutional Law: State Actors
- Bound by constitutional laws
- Those that act in furtherance of their positions as employees to govertment agencies.
- State actions must be shown to proceed with a claim
- High school athletic associations are usually state actors
When Private entities are state actors
- The law is less clear when private actors are involved
- Sometimes private parties can become state actors through their actions
Theories of private actors
Nexus/entanglement examines whether the state’s involvement or entanglement with a private actor’s conduct is sufficient to transform the private conduct into state actions and thus subject to constitutional review
Public Function Theory
A court can find state action in the activities of a private party if that party undertakes functions or assumes powers that the govertment ordinarily performs or exercieses
Private actors/state actors application
- NCAA not a state actor: NCAA v. Tarkanian
- High school athletic associations typically are state actor
- Professional sport leagues and teams: Not state actors
Due Proccess
- 5th Amendment
- A guarantee that an individual cannot be deprived of life, liberty, or property without a fair process or hearing
- Guaranteed by the US and State Constitutions
- Applies to acts of federal govertment
- 14th Amendment - extends due process to the states
Types of Due process
- Substantive
- Procedural
Types of Due process: Substantive
Concerns the actual rule/regulation in question – see if the rule is unfair/arbitrary, does it violate life, liberty and property
- courts do not like to be involved/interfere with the rule making function of the govertment without a good cause
Types of Due process: Procdural
procedures used to enforce a rule/regulation. The goal is to ensure fair treatment
- Difference between the two types is the person alleging violations of procedural are not challenging the rules content. Just the way it is applied.
Minimum Due Process
Statement of specific violation, notice of sanctions that will be imposed, or an opportunity for accused to commit minor offense
