Federal Employment Law/Co-Employment Flashcards
(121 cards)
1
Q
When may a staffing firm be responsible for sexual harassment committed by its clients or other non-employees? (3)
A
- If it knew or should have known of the harassment
- Failed to take immediate and appropriate corrective action
- Has some control over the situation or the non-employee
2
Q
The employer may be required to make reasonable accommodations under the ADA for a pregnant employee if…
A
They have pregnancy related impairments that substantially limit a major life function
3
Q
What action may result in employees having an extension for filing a discrimination charge against the employer?
A
Employer’s failure to conspicuously post the EEOCs notice
4
Q
Supreme Court has found that a _-year statute of limitation applies to suits filed under the civil rights act
A
Four
5
Q
EEOC stands for?
A
Equal employment opportunity commission
6
Q
ADA?
A
Americans with disabilities act
7
Q
BFOQ?
A
Bona fide occupational qualifications
8
Q
ADEA?
A
Age discrimination in employment act
9
Q
FMLA?
A
Family medical leave act
10
Q
EPA?
A
Equal pay act
11
Q
OFCCP?
A
Office of federal contract compliance programs
12
Q
FLSA?
A
Fair labor standards act
13
Q
PDA?
A
Pregnancy discrimination act
14
Q
ADAAA?
A
Americans with disabilities act amendments act of 2008
15
Q
Three most common theories under which employees are permitted to bring wrongful discharge lawsuits against their employers?
A
Termination is contrary to public policy.
Employer agreed, implicitly or explicitly, to terminate the employee only for unsatisfactory job performance or other good cause.
The termination violates the covenant of good faith and fair dealing implied in every contract.
16
Q
Types of public policy violations (4)(employment at will most common exception is termination contrary to public policy)
A
- Refusing to perform unlawful act
- Termination exercising statutory right
- Termination for whistleblowing
- Termination in violation of a statute
17
Q
Employees primary duty is performance of office or non manual work directly related to the management or general biz operations of the employer or the employer’s customers; employees primary duty includes exercise of discretion and independent judgment with respect to matters of significance — what exemption is this?
A
Administrative
18
Q
Employees primary duty managing the enterprise or a customarily recognized department or subdivision of the enterprise; directs the work of two or more full time employees; and must have authority to hire or fire or their suggestions to hire or fire hold weight — what exemption is this?
A
Executive
19
Q
What division of the US Dept of labor is responsible for administering and enforcing FLSA?
A
Wage and hour division
20
Q
A staffing company that provides temporary employees and its clients are considered ______ ______ for FLSA purposes.
A
Joint employers
21
Q
3 things to do if FLSA investigator shows up at staffing company asking to inspect the books?
A
- Politely ask why they’re here
- Politely decline to permit the investigator to examine records immediately. Make an appointment so can review the records first
- Consult an attorney experienced in wage and hour matters before allowing investigator to access company records
22
Q
Must all time spent by employees who are required to wait while on duty be counted as hours worked for purposes of paying minimum wages and calculating overtime?
A
Yes
23
Q
The three exemptions included in the professional exemption?
A
- Learned professional
- Creative professional
- Computer employee
24
Q
what three docs provide acceptable proof of both identity and work authorization?
A
- unexpired employment authorization card
- resident alien form
- US passport
25
the form I9 must be retained by employers for the later of _ years or one year from the date of termination.
three
26
why should I9's be completed after an offer of employment has been extended?
because forms employers would have to review for the I9 may have info that cannot be used in hiring decisions.
27
acceptance of an offer and entry into the assignment pool can/cannot be considered equivalent to an offer and acceptance of employment?
can be
28
E-verify will either.. (2)?
confirm employment eligibility OR issue a TNC
29
A substance abuse policy should combine _ with _ and some type of _ assistance or referral.
testing, education, rehabilitation
30
drug test results should be stored in ______.
confidential files separate from employees' personnel
31
Under the ADA, employers may be required to make _ _ for employees who are currently seeking treatment for illegal drug addiction.
reasonable accommodations
32
is it lawful and advisable to drug test employees randomly?
NO
33
is it lawful and advisable to drug test employees after an accident on the job?
Yes
34
some jurisdictions prohibit inquiries into conviction records until after what has been made?
conditional offer of employment
35
staffing companies should distribute their EEO policy to...? (4)
clients, applicants, employees, staff
36
what language should offer letters include ALWAYS?
at-will employment language
37
what administration is responsible for the promulgation and enforcement of workplace safety and health regulations and standards?
the Occupational Safety and Health Administration
38
what are the two obligations of employers under the occupational safety and health administration?
1. provide safe work environment
| 2. comply with OSHA's rules and regulations
39
the four categories of the OSH act's specific safety standards?
general industry, maritime, construction, agriculture
40
can staffing firms be cited for violations related to preparing employees for likely work safety hazards if they aren't host employer?
Yes
41
how many employees, including regular and temporary, must an employer have to be covered by FMLA?
50
42
how many day's notice are employees required to give when they are taking FMLA leave?
30 days
43
within how many business days of the initial request for FMLA leave must an employer inform the employee of their eligibility status and, if ineligible, one reason why?
five
44
the IRS's three factors to determine whether independent contractor or employee?
1. behavioral control
2. financial control
3. type of relationship
45
what standard test does the DOL use to determine whether someone is an independent contractor or employee for purpose of OT consideration?
economic realities test.
46
what does the economic realities test, used to determine whether someone is an independent contractor or employee, focus on?
how dependent the worker is on the principal's business for economic security
47
What is the employer liable for if it misclassifies an employee as an independent contractor?
the employee's share of payroll taxes as well as penalties
48
why do employers benefit from paying business-related expenses under an accountable plan?
because the expenses aren't considered wages (requiring the employer to pay FICA and FUTA taxes)
49
what are incidental expenses?
fees and tips
50
three items needed to be considered a reimbursement made under an accountable plan?
1. expense must have business connection
2. cost must be substantiated within reasonable amount of time
3. employee must be required to return any amounts in excess of expenses actually incurred
51
a temporary absence from home for work cannot exceed how long?
one year (for tax purposes)
52
how many years of professional work experience is equivalent to one year of university study?
three
53
a service whose business contains primarily of recruiting and hiring its own employees and assigning them to other organizations to support or supplement their workforces or to provide assistance in special work situations?
temporary or contract staffing service
54
which four states require staffing firms to provide temporary employees with written notice regarding job assignments?
CA, MA, RI, NY
55
__ __ offers a human resources outsourcing service in which the firm assumes the legal AND administrative responsibilities of an employer for certain functions.
employee leasing
56
are staffing firms and their clients each viewed as an employer?
yes
57
is the staffing firm or the client recognized as the employer for unemployment insurance purposes?
the staffing firm
58
can clients be held jointly responsible with staffing firms for OT and minimum wage obligations?
yes
59
how do clients protect themselves from liability for benefits to staffing firm employees?
use benefit plan exclusions and employee waivers
60
are SALTS independent contractors or employees?
employees
61
what does Gramm-Leach-Bliley Act pertain to?
privacy issues
62
USERRA?
uniformed services employment and re-employment rights act
63
what does USERRA do?
protects employees who must be absent from civilian employment because of active duty military service
64
when an employee returns from military service after being absent for 90 days or less are they entitled to the position they would have attained had they not been absent provided they are qualified?
yes
65
when an employee returns from military service after being absent for more than 90 days, what are they entitled to?
the position they would have had or one of equal seniority, status and pay, assuming they are qualified
66
when does USERRA not apply?
if the employment at issue was for a brief, nonrecurrent period of time and there was no reasonable expectation that such employment would continue
67
what constitutes discretion and independent judgment?
making decisions after considering a number of possibilities
68
Maintaining a safe work site for temporary employees is the primary responsibility of the staffing company - true or false?
false
69
In all states, a staffing firm's client may not be held liable for the payment of workers' compensation benefits if the staffing firm has agreed to provide workers' compensation coverage. - true or false?
false
70
Jerry was an employee of FedCo when he was called to active duty by the U.S. Army. Jerry was released from active duty three years later. How long does Jerry have to apply for reemployment with FedCo under the federal Uniformed Services Employment and Re-Employment Rights Act?
¥ A. 90 days
¥ B. 30 days
¥ C. 60 days
¥ D. None of the above
90 days
When an employee returns after being absent for 90 days or fewer, the employee is entitled to the position he or she would have attained had the absence not occurred (the “escalator” position), provided the employee is qualified to perform the duties of that position. If, despite the staffing firm’s reasonable efforts, the returning employee is not qualified to perform a higher-skilled position, the employee may be reassigned to the position held when the absence started.
71
The Hazard Communication Standard is a federal regulation that requires employers to communicate to their employees information about safety citations that the company has received in the past three years. - true or false?
false
72
Can a staffing firm require an employee complete the Form I-9 prior to an offer of employment?
no
73
Can the use of E-Verify be a substitute for I-9 verification?
no
74
California's wage and hour laws provide for civil penalties for violations under the California labor code consisting of $100 per employee per day for the first violation and twice that for further violations. -- true or false
true
75
In most states, can an employee be fired from a job without cause?
yes
76
Can an employer ask the following question prior to making an offer of employment?
“Are you legally authorized to work in the United States?”
yes
77
Anthony is the Personnel Director for FedCo. He was recently asked by his boss to clean out his messy office. However, Anthony stores all of FedCo's personnel and employment records in his office. Under federal law, FedCo must keep employment records for how long after the date the record is made or the action is taken (whichever is later)?
¥ A. Three years
¥ B. Two years
¥ C. One year
¥ D. None of the above
one year
78
Tonya, a 21-year-old recent technical school graduate, is given her first assignment by GRS. She has what she hopes will be a one-year (or longer) assignment as a programmer at the Acme Business Co. Acme has a three-day orientation program for new programmers, including those on long-term temporary assignments. Acme's orientation leader, Juan, is a company vice president and has a "hands-on" approach to orientation. It is important to Juan to get to know the new employees. On the morning of orientation, as he welcomes the group, Juan singles out Tonya, the only woman in the eight-person group, and says it is "wonderful to have a beautiful young lady in a beautiful dress in the group." She blushes but says nothing. At the end of the day, he invites all of the new employees out for a "relaxing drink." Tonya and two men decline the invitation. Does Tonya have a claim for sexual harassment?
no
79
Generally, if two equally qualified persons apply for a position, the staffing firm lawfully may
¥ A. Choose the applicant who is a relative or friend
¥ B. Choose the female applicant over the male applicant because it has already referred several male employees to that client
¥ C. Choose the younger applicant because the employer will get more years of service
¥ D. Choose the female applicant over a male applicant because she is more attractive
¥ E. None of the above
A. choose the applicant who is a relative or friend
80
ERISA stands for:
¥ A. Employee Retention Income Security Act
¥ B. Employee Retention Income Social Security Act
¥ C. Employee Retirement Income Security Act
C. Employee Retirement Income Security Act
81
According to EEOC enforcement guidance, only the staffing firm (not its client), is considered to be the employer for purposes of federal antidiscrimination laws.
false
In general terms, the guidance concludes that in the typical temporary help assignment, where both the staffing firm and the client have the right to control the employee, they will be considered joint employers and both will be liable for unlawful discriminatory conduct directed toward temporary employees. As such, the EEOC disagrees with certain recent lower court rulings that staffing firms are not employers of temporary employees whom they hired and placed in job assignments.
82
Who is responsible for providing notice of the FMLA rights to temporary employees?
¥ A. The client
¥ B. The staffing firm
B. the staffing firm
83
Your policy is to reference check all candidates prior to making a referral to a client. Do you need consent from the candidate to share positive reference information with clients?
¥ A. Yes
¥ B. No
yes
84
Contract employee Ella has worked on and off assignments with your staffing firm for years. What must be considered in determining if Ella has the 12 months of service required to be eligible for FMLA?
¥ A. The most recent employment duration
¥ B. All service including any prior employment
B. All service including any prior employment
85
Exemption status under FLSA rules are determined on a _________ basis.
¥ A. Daily
¥ B. Annual
¥ C. Work week
¥ D. Monthly
¥ C. Work week
86
Willful violations of the FLSA may be prosecuted criminally and the violator may be fined up to $10,000. A second conviction for such a violation may result in imprisonment. - true or false
true
87
In a typical staffing arrangement, when a temporary employee is injured on the job, courts in most states will allow the employee to sue the customer and recover damages if the employee can prove that the customer was negligent. - true or false
false
88
During a job interview with a visibly pregnant applicant, is it lawful for an interviewer to casually mention the pregnancy by asking if the applicant is comfortable?
¥ A. Yes, because an employer can lawfully refuse to hire a visibly pregnant applicant so long as the applicant can reapply after giving birth
¥ B. No, because it is unlawful to discuss an applicant's physical condition
¥ C. No, because that shows the interviewer has a bias against pregnant women
¥ D. Yes, so long as the decision whether to hire the applicant is not based on pregnancy
¥ E. None of the above
D. Yes, so long as the decision whether to hire the applicant is not based on pregnancy
89
ABC Staffing Company is a privately owned firm in California. They have a policy to place equally qualified veterans over non-veterans. Is this lawful?
¥ A. Yes
¥ B. No
A. Yes
90
Lisa was recently on a job interview with FedCo. During the interview, the interviewer asked Lisa if she has any disabilities that limit her in performing any major life activities. Was this a lawful question?
¥ A. Yes
¥ B. No
B. No
An employer cannot ask about an applicant’s ability to perform major life activities unless they specifically relate to the applicant’s ability to perform essential job functions.
91
Which of the following statements is true regarding the "look-back" measurement period?
¥ A. Employers can use the look-back method for both "ongoing" employees and for new "variable hour" employees.
¥ B. The look-back period can be used only for "ongoing" employees who have worked at least three months for the same client.
¥ C. The measurement period for the "look-back" rule can be as little as one month and up to one year.
¥ D. If a variable hour employee has worked at least 1,530 hours over 12 consecutive months, that employee is considered to be full-time.
A. Employers can use the look-back method for both "ongoing" employees and for new "variable hour" employees.
92
Which of the following questions may be asked as part of the screening process?
¥ A. Are you a U.S. citizen?
¥ B. Were you born in the U.S.?
¥ C. Are you legally authorized to work in the United States?
¥ D. Do you have a license and social security card?
C. Are you legally authorized to work in the United States?
93
Under OSHA guidelines, staffing agencies are ________________.
¥ A. Not responsible for hazard communication. Host employers (clients) are fully responsible for hazard communication training.
¥ B. Fully responsible for providing hazard communication training to their contract employees.
¥ C. Responsible for generic hazard communication training. Host employers (clients) are responsible for site specific training.
C. Responsible for generic hazard communication training. Host employers (clients) are responsible for site specific training.
94
FLSA regulations pre-empt state wage and hour laws, regardless of whether the state laws are the same as the federal FLSA regulations. - true or false
FALSE
Many states have their own wage and hour laws, some of which are more restrictive and more pro-employee than the federal law. Employers must not only follow federal law, but also applicable state law. Thus, if an employee is exempt under the FLSA, but would not be exempt under the state law, the employee must be paid overtime under the state law. All employers, especially those with employees located in states whose laws differ substantially from the FLSA, should be sure to assess their state’s laws.
95
The courts have been able to infer implied promises of job security in all of the following, except
```
¥ A. Offer letters
¥ B. Personnel policies set forth in a supervisory manual
¥ C. Employee handbooks
¥ D. Forms I-9
¥ E. All of the above
```
D. Forms I-9
96
A temporary employee on a temporary-to-hire assignment who is hired by the customer at the end of an assignment may be entitled to benefits under the customer's collective bargaining agreement retroactive to the beginning of the temporary assignment.
- true or false
true
97
An employee may qualify for subsidized health coverage from a public health insurance exchange under which of the following circumstances?
¥ A. The employer offers a minimum essential coverage plan but the plan does not provide "minimum value."
¥ B. The employee's share of the premium for self-only coverage under the employer's plan exceeds 9.5% of the employee's wages.
¥ C. (a) and (b)
¥ D. None of the above
C. (a) and (b)
98
The outside sales exemption will normally apply where the employee is out in the field engaged in sales-related activities more than ________ hour(s) a day.
¥ A. Three
¥ B. Four
¥ C. Two
¥ D. None of the above
D. None of the above
99
Under the Americans With Disabilities Act, an employer may require applicants to take physical fitness tests. - true or false
true
100
To receive favorable tax treatment, retirement plans may not discriminate in favor of lower-paid employees. - true or false
false
Federal tax law does not require employers to provide their employees with benefits such as pension and health coverage. However, it does provide incentives designed to encourage employers to offer benefits to certain rank-and-file employees. To qualify for favorable tax treatment, plans must cover employees fairly and retirement plans may not discriminate in favor of highly paid employees.
101
In California, an employee and employer may mutually agree to waive the employee’s meal period if the employee is working less than 6 hours - true or false
true
102
Clients are generally co-employers of temporary employees because they
```
¥ A. Recruit them
¥ B. Hire them
¥ C. Give them raises and bonuses
¥ D. All of the above
E. None of the above
```
E. None of the above
Clients are generally co-employers of temporary employees because they control and direct the day-to-day activities of the employees.
103
A staffing company may force employees to be tested if the customer insists on drug testing. - true or false
false
104
Staffing firms that classify contract workers as “independent contractors” expose ___________ to liability for unpaid employment taxes.
¥ A. Themselves
¥ B. Themselves and possibly their clients
B. Themselves and possibly their clients
105
Under Federal law are employers prohibited from refusing to hire candidates based on lawful conduct such as use of alcohol, smoking or gun ownership?
¥ A. Yes
¥ B. No
B. No
under federal law
106
It is against public policy for an employee agreement to include a clause containing a promise by the employee not to act against the interests of the employer during the employment relationship. - true or false
false
107
California law governing workplace harassment applies to all employers regardless of size. - true or false
true -- employers with ONE OR MORE EMPLOYEES - seems like all employers to me
108
Courtney works a 6½-hour shift. Under California law, does she need to be provided with a one-hour meal period?
¥ A. Yes
¥ B. No
B. No
just 30 minutes
109
Language in employee handbooks should be _________________.
* A. Flexible and general
* B. Focused on mandated policies
* C. Detailed with many examples
A. Flexible and general
110
For how many days must a disability from a workplace injury last in order for the employee to receive workers' compensation benefits for the first three calendar days of the disability?
* A. More than 14 days
* B. Three days
* C. 14 days
* D. None of the above
A. More than 14 days
111
Linda is an outside sales person for her staffing firm. She is paid a low base salary plus commissions. Last year she only earned $22,000. Given her compensation level, is she eligible for the outside sales exemption?
* A. Yes
* B. No
A. Yes
112
Some of FedCo's client work sites are more than 75 miles away from FedCo's office. Will the temporary employees at those sites be counted in determining eligibility for employees to take leave under the federal Family and Medical Leave Act?
YES
To be eligible for FMLA leave, an employee must have worked for his or her employer for at least 12 months, for at least 1,250 hours during the 12-month period preceding the start of the leave, and be employed at a work site where the employer employs at least 50 employees within a 75-mile radius. With respect to staffing firms, the relevant work site for the 75-mile-radius test is the staffing office that assigned the employee to a client, and not the client’s work site. A temporary employee who satisfies these criteria would be eligible for FMLA leave.
113
To qualify under the compensated exemption, an employee must be paid a minimum of _________.
* A. $75,000 per year
* B. $150,000 per year
* C. $120,000 per year
* D. $100,000 per year
D. $100,000 per year
114
ABC Staffing started using E-Verify several months ago. Most of their talent pool has not gone through the E-Verify process. A large new client is a federal contractor and requires that E-Verify is used to confirm employment eligibility for all employees placed on assignment with them. Select the statement that is true.
* A. ABC Staffing is not able to run any existing employees through the E-Verify process
* B. ABC Staffing may run only the existing employees who will be placed at the client that is a federal contractor through E-Verify
* C. ABC Staffing can run all existing employees through the E-Verify process
B. ABC Staffing may run only the existing employees who will be placed at the client that is a federal contractor through E-Verify
115
Under the Affordable Care Act, which of the following statements best describes a "full-time employee"?
* A. An employee who works at least 30 hours per week for a period of six to 12 months
* B. An employee who has worked more than 1,560 hours
* C. An employee who works, on average, 30 or more hours per week
* D. (b) and (c)
* E. None of the above
C. An employee who works, on average, 30 or more hours per week
116
The Equal Pay Act of 1963
* A. Requires that black and white employees performing jobs that call for substantially equal skill, effort, and responsibility, and that are performed under similar working conditions, be paid equally
* B. Applies only to certain wage differentials based on employees' sex
* C. Prohibits employers from permitting sexual harassment of their employees
* D. Applies only to employers that have government contracts in excess of $50,000
* E. All of the above
B. Applies only to certain wage differentials based on employees' sex
117
In which of the following scenarios will the government most likely treat the client as the responsible employer under the ACA?
* A. The temporary employee's contract is terminated due to work performance issues.
* B. The staffing firm and the client divide an employee's weekly hours so each entity's records do not reflect that the employee is working full time.
* C. A temporary employee completes an assignment for a client in the middle of a week and the staffing firm assigns the employee to another, unrelated, client for the remainder of the week.
* D. The client has only budgeted for temporary employees to work during summer months.
B. The staffing firm and the client divide an employee's weekly hours so each entity's records do not reflect that the employee is working full time.
118
Your client calls you with an order for three, young, enthusiastic women to fill waitress positions. Which of the following words in the description could indicate unlawful disparate treatment?
* A. Young and women
* B. Young, women, and waitress
* C. Young, enthusiastic, women, and waitress
* D. None of the above
A. Young and women
119
Recruiters of a staffing firm will always fall under the administrative professional exemption provided they meet the salary test.
TRUE
120
Lisa was recently cleaning out her office and came across a bunch of employee wage and hour records from last year. Would it be a violation of the federal Fair Labor Standards Act for Lisa to throw away those documents?
YES
Generally speaking, the more important records disclosing wage and hour information must be kept for THREE years, including payroll records, pertinent union agreements, and any other employment agreements, government contracts, and general sales and purchase data. Supplemental records, such as time cards and piecework tickets, wage-rate tables, work schedules, billing and shipping records, and records of pay deductions or additions, need only be kept for two years. Records must be kept readily available to wage and hour inspectors at each place of employment or at a centrally located record-keeping office.
121
Temporary employees _______ likely to be eligible for membership to a union representing the client’s employees.
* A. Are not
* B. Are
A. Are not
