Must Know Element, Damages, Limitations & Tests Flashcards
Scenario requires bringing a claim under the Employee Polygraph Protection Act (EPPA), list the following:
Threshold issue of who it applies to?
Statute of Limitations
Does Preemption apply?
What is a Violation of this Statute?
Any exceptions or defenses?
Damages (Including Fines or Employee recovery.)
COVERED - Private Employers engaged in COMMERCE - Bars most private employers from using lie detectors either for preemployment screening or DURING the courtse of employment.
EXEMPTIONS:
All public sector employers are exempt
Federal government permitted to test private-sector employees who have access to classified information
Testing of members of intelligence services allowed
Federal testing of FBI contractors allowed
Testing allowed when drugs are involved
Private employers conducting ongoing investigation involving economic loss or injury allowed (e.g. theft, embesslement) BUT Employer cannot RANDOMLY test to see if thefts have occurred
Private employers involved in security services allowed to test applicants
Statute of Limitations: 3 years
Preemption: Any state or local law or CBA that is MORE RESTRICTIVE is not preempted.
Fine: Up to $10,000 per violation
Employee Remedies:
Legal or Equitable relief;
being hired, reinstated, or promoted;
lost wages and benefits; and
costs and attorney fees
Discrimination - How many types of claims under Title VII
Threshold issue of who it applies to?
Statute of Limitations
Does Preemption apply?
What is a Violation of this Statute?
Any exceptions or defenses?
Damages (Including Fines or Employee recovery.)
5 types of Claims
- Disparate Treatment (intentional) - Individual
- Disparate Treatment (intentional) - Systematic
- Disparate Impact (neutral policy but when applied is discriminatory)
- Hostile Work Environment/Harassment
- Retaliation
Threshold Issue of who it applies to?
- Private employer with 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year
- Public Employer (regardless of size)
- Employment Agencies
- Unions
- Federal employees
Doesn’t apply to:
- No U.S. Govt.
- No individual liability (different then 42 USC 1983)
- Corporation owned by US Govt
- Indian tribe
- bonafide membership club
- some churches
- synogogues
- other relgious organizations
Statute of Limitations
File Claim with TWC - 180 days (State and Federal claims)
File Claim with EEOC - 300 days (if filing in Federal Court, fed. claims)
*90 Days to sue after receiving “Right to Sue” Letter from EEOC
Does Preemption apply?
? Both Federal and State Claims can exist I think
What is a Violation of this Statute?
Unlawful to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex (including pregnancy or gender identity) or national origin or to limit, segregate or classify or to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
Any exceptions or defenses?
Damages (Including Fines or Employee recovery.)
How do I prove Disparate Treatment (Individual) under Title VII?
How do I prove Disparate Treatment (Systematic) under Title VII?
How do I prove Disparate Impact discrimination under Title VII?
How do I prove Hostile Work Environment/Harassment under Title VII?
How do I prove Retaliation under Title VII?
How does Title VII claims compare to Texas claims for Discrimination?
How do I bring a Texas claim for discrimination?
Rehabilitation Act of 1973
Threshold issue of who it applies to?
What is its purpose?
How does someone bring a claim under this Act?
What extra measures exist for those applicable under this provision?
Threshold and Purpose: The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by
- Federal agencies,
- Recipients of federal funds,
- Federal contractors.
SAME AS IN TITLE 1 of the Americans with Disabilities Act. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act.
Bring a claim under this Act?
-Employee should invoke the Rehabilitation Act of 1973 and file with the EEOC.
What extra measures exist for those appliable under this provision?
-Federal employers and federal contractors (providing goods, services or construction) may need to have an affirmative action plan.
What defense exist?
Americans with Disabilities Act (As Amended) - How many claims are there?
Threshold issue of who it applies to?
Statute of Limitations
Does Preemption apply?
What is a Violation of this Statute?
Any exceptions or defenses?
Damages (Including Fines or Employee recovery.)
Americans with Disabilities Act (As Amended) - How many claims are there?
- Disability Discrimination - Proven by DIRECT EVIDENCE or NOT DIRECT EVIDENCE (Requires burden shifting analysis)
- Hostile Work Environment/Harassment
- Failure to Provide a Reasonable Accomodation and engage in the interactive process
- Interference Claim
- Retaliation
Threshold issue of who it applies to?
PURPOSE: Enacted to fill the large gap of the Rehabilitation Act of 1973 (only applies to Federal Gov.’t [US Postal Service], Entities receiving federal financial assistance, and federal contractors) to allow for Disability Discrimination coverage for Private Employers and Non-Federal Government Workers
covered entity private business with 15 or more employees for 20 or more calendar weeks in a year or a preceding year, state and local government (regardless of size), employment agencies, and unions & engaged in commerce
-Exclude the United States, a corporation solely owned by the US, an Indian tribe, bonafide private membership club, some churches, synogogues and other religious organizations.
FEDERAL EMPLOYEES - The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. Those employees should invoke the Rehabilitation Act.
is a person with a disability (physical or mental Impairment) which substantially limits one or more major life activities, a record of such impairment or being regarded as having such impairment.
Statute of Limitations
180 days under Texas Commission of Human Rights Act
300 days if Federal Claims under the ADAAA
Does Preemption apply? Not necessarily. Texas State Claims exist under Texas Commision of Human Rights Act. Also there may be claims for federal employees, federal contractors with Section 501 of the Rehabilitation Act and the employees should invoke that act.
What is a Violation of this Statute?
Any exceptions or defenses?
UNDUE HARDSHIP - An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.
Damages (Including Fines or Employee recovery.)
Whenever discrimination is found, the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred.The types of relief will depend upon the discriminatory action and the effect it had on the victim.
-Reinstatement – Placement back in the Job
-Backpay and Benefits they would have received
-Employer may need to take Remedial Measures
-Attorney Fees
-Expert Fees, Witness Fees and Costs
Is there a retaliation claim under the Americans with Disabilities Act?
If so, what is the prima facie case and the causation standard?
Yes,
RETALIATION Claim Prima Facie Case:
(1) she engaged in an activity protected by the ADA;
(2) an adverse employment action occurred; and
(3) a causal connection exists between the protected act and the adverse action.
Credeur v. State of Lousiana (5th Cir. 2017); Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
**NO MIXED MOTIVE CAUSATION – USE BUT FOR as discussed above
“BUT FOR” CAUSATION - Under the ADEA and ADA, it is clear that the plaintiff must prove that “but for” the employer’s discriminatory motive, the adverse action would not have been taken — therefore, no damages are recoverable under the ADEA or ADA in a mixed motives case where discrimination was not the primary reason for the employer’s decision.
Any fact scenario showing a witholding of accrued vacation benefits, holiday pay or improvement of healthcare benefits and reduction in co-pay/co-insurance where the benefits are provided to non-strikers and not strikers. What happens to determine if there was a violation of the National Labor Relations Act?
NLRB v. Great Dane Trailers, 388 US 26 (1967) TEST (and followed by Texaco Inc. decisions where NLRB applied Great Dane Test)
Holding: Board found that employer violated Section8(a)(3) of the Act by withholding vacation benefits from striking employees while at the same time announcing that it intended to pay those benefits to nonstrikers.
Reasoning: The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity.
TEST: General Counsel bears the burden of proving at least some adverse effect of the benefit denial of employee’s Section 7 rights “discriminatory conduct which could have adversely affected employee rights to some extent” (Ex. Meeting the burden that the benefit was accrued and it was apparently withheld on the basis of the strike)
Burden shifts to Employer - to show that its conduct was motivated by SUBSTANTIAL AND LEGITIMATE BUSINESS OBJECTIVES. (Is there any evidence in the record?)(explicit waiver by the Union or reliance on a nondiscriminatory contract interpretation that is reasonable and arguably correct)
**IF THE EMPLOYER ESTABLISHES BUSINESS JUSTIFICATION, the Board may still find that the employer has committed an unfair labor practice if the conduct is demonstrated to be “INHERENTLY DESTRUCTIVE” of imporatnat employee rights or motivated by antiunion intent.
****SAFE HARBOR- There may still be a safe harbor where employer POSTPONES the benefits to strikers but the Employer makes clear to the affected employees that the adjustement will occur WHETHER OR NOT THEY SELECT A UNION and that the sole purpose of postponement is to avoid the appearance of improperly trying to influence the elections’ outcome. Although recently in Woodcrest Healthcare Center (2018) the NLRB said even if the employer had withheld the benefit improvements in order to maintain status quo and avoid impacting the election or exposing itself to potential unfair labor practice charges, NLRB would not find that to be a legitimate justification.
If an employee wants to bring a claim against an employer for hiring someone permanently to take over their job when they joined a strike, what law to be aware of to know if the employee has a claim to stand on?
Is there a TEST to apply?
When a Strike occurs, an employer can:
Use Supervisors and other Non-Bargaining Unit Personnel
It may Hire Temporary Replacements (Employees who work for the duration of the stike but who must be displaced when strikers, or the union on their behalf, request to return to work.
An Employer may hire PERMANENT Replacements for strikers ONLY IF the Strike was NOT CAUSED OR PROLONGED by Employer unfair labor practicies. BECAUSE an employer MAY NOT hire PERMANENT REPLACEMENTS during an unfair labor practice strike then employers have a powerful incentive to ensure that its bargaining practices comply with statutory requirements. When the strike is over or when a strike requests to return to work, the Employer is NOT REQUIRED to immediately reinstate a permanently replaced economic striker. Rather, he or she is to be placed on a preferential recall list, eligible for reinstatement as vacancies arise. A permanently replace strike REMAINS AN EMPLOYEE and retains reinstatement rights until full reinstatement is achieved or until he or she accepts substantially equirvalent employment elsewhere.
PIEDMONT GARDEN TEST - MOTIVE BASED ANALYSIS (2016)
Rule - Employer cannot permanently replace strikers in an unfair labor practice strike (It is labeled unfair labor practice strike if it is caused or prolonged by an employer unfair labor practice). The unfair labor practice need NOT be the SOLE cause of the strike, only a contributing cause. Test looks at subjective and objective considerations, NLRB looks at whether employees are aware of the unfair labor practices, their reaction, the seriouness of the unlawful act and the relationship of the unfair labor practice to the bargaining disputes between the parties.
Ex. striker’s picket signs and leaflets mention the unfair labor practice, testimony that union officials told bargaining unit members of the unlawful acts before employees voted to strike, employee’s knew of the unfair labor practice and voted to strike in protest, timing of striking right after discharge of union supporter, but even NLRB has held a strike 13 months after employer illegally changes wages without bargaining held unfair labor practice strike.
What test is used for verbal threats by strikers?
Generally, striking is a protected activity by the Statute NLRA, striking activity that:
- causes physical violence or
- serious property damage
are outside the scope of the statute’s protection.
VERBAL THREATS - NLRB’s CLEAR PINE MOULDINGS TEST - Asks whether the misconduct MAY REASONABLY TEND TO COERCE OR INTIMIDATE EMPLOYEES IN THE EXERCISE OF THEIR STATUTORY RIGHTS. If the test is met, the misconduct is UNPROTECTED and the employer may lawfully discipline or discharge stikers engageing in such activity. OBJECTIVE TEST.
Can a discharged permanent replacement bring a cause of action against the Employer?
Yes, in Belknap v. Hale, the US Supreme Court held that the Railway Labor Act does not reempt state law based lawsuits brought by discharged permenent replacements alleging breach of contract and misrepresentation. Thus a permanent striker replacment who is displaced by a returning striker, wehther due to a settlement agreement or NLRB order, may have a cause of action against eh employer depending on the promises made and the availability of the cause of action under applicable state law. TO AVOID SUCH PROBLEMS, employers often advise replacements taht their permanent status is subject to specific conditions such as NLRB settlement agreements, NLRB orders to reinstate strikers or strike settlement agreements.
In an extreme circumstance where a striker engages in serious misconduct, during the strike, for example, two employees accused of threatening to dynamite company property, what can an employer do?
What test is used?
An employer MAY be able to discharge the employee because the serious misconduct may go beyond the scope of protected activity and be subject to discharge by the employer.
Employer must be very careful or it could (1) unlawfully discharge causing damages for backpay and reinstatement (2) unlawfully discharge causing an economic strike to be converted to an unfair labor practice strike and eliminate the employer’s ability to hire permanent replacements
The standard of proof for determining the lawfulness of a discharge for misconduct is set forth in the US Supreme Court NLRB v. Burnup & Sims Inc., Court state,
General Counsel –> Must prove the dicharge OR refusal to reinstate was ILLEGALLY based on the striker’s protected activity. First, that striker striker was discharged or refused reinstatement for strike related conduct,
BURDEN SHIFTS - to the Employer to demonstrate “an honest belief” that the striker committed misconduct. TO prove this, employer must demonstrate “some specficificity in the record, linking particular employees to particular allegations of misconduct”
Geveral Counsel - If employer demonstrates an honest belief, the General Counsel must establish either that the striker was not guilty of the misconduct in question or that the misconduct was not serious enough for discharge or denial of reinstatement.
EXAMPLE: In Burnup & Sims case, the employees were found innocent of the charges and the Court held that GOOD FAITH was not a defense if the alleged misconduct HAD NOT OCCURRED. NOTE THAT - Acts of physical violence and serious property destruction are outside the protection of the Act and are often regarded as seriou enough to justify discharge. The US Supreme Court things to allow that would be “To justify such conduct because of the existence of the labor dispute or of an unfair labor practice would be to put a premium on resort to force instead of legal remedies and to subvert the principles of law and order which lie at the foundations of society.”
What if the employee makes verbal threats unaccompanied by physical acts?
What test will NLRB apply?
Objective of Subjective?
NLRB applies Clear Pine Mouldings, Inc. Test
To determine whether the verbal threats justify discharge or a refusal to reinstate,
Under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.
In Clear Pine, strikers had threatened but did not attack a nonstriker in the context of a strike which had also included strikers that were swinging clubs at replacements, beating on vehicles and carry baseball bats. Board HELD: some verbal abuse did not warrant protection and that an employer did not need to allow misconduct that amoutns to intimidation and threats of bodily harm. ***NOTE: Objective Test under the circumstances, would the reasonable action tend to coerce or intimidate an individual faced with such conduct. IT DID NOT HAVE TO IN FACT COERCE OR INTIMIDATE.
**OBJECTIVE TEST
Clear Pine Board -stated that the Court must have recognized that Congress intended for minor acts of misconduct when it provided for the right to strike. So namecalling, even if profane in nature, is not likely to be adequate cause for discharge (if not accompanied by threats of violence or property damage)
Fact Scenario: Satellite television technicians contacted TV Station and were interviewed on camera regarding their wage dispute and their beliefs that they were being asked to lie to customers.
Protected under the NLRA?
What test is used?
**If employee communications are related to an ongoing labor dispute, they maybe protected.
Board developed a two-part test to determine the line between protected activity and such “Detrimental Disloyalty” that would permit discharge. Test asks (1) if the communication indicated it is related to an ongoing labor dispute and (2) whether the statements were “so disloyal, reckless or maliciously untrue as to lose the Act’s protection.
DirectTV Inc. v. NLRB (DC Cir. 2016) Court upheld Board order that technicians be reinstated because no evidence that technicians intended for consumers to cancel their srvice nor asked them to do so.
Can an employer get an injunction in a Texas State Court for strikers?
What is the issue?
What must be proven?
PREEMPTION
Although the NLRA generally preempts state law - Courts allow states to regulate the conduct “deeply rooted in local feeling and responsibility and of merely peripheral concern to the federal labor laws.”
States have strong interest in preventing violence - So state courts have been allowed to enjoin picketing invovling violence or the threat of violence, mass picketing, obstructing public streets or plant netrances, and intimidation. ***Such injunction will be governed by state law and may be subject to state statutory provisions setting forth particular proof standards that must be met.
To obtain an injunction in the State of Texas, you must prove:
_____________________________
**Injunctions that enjoin acts of violence and limit the numbr of pickets and locations for picketing have generally avoided preemption problems. If strike relatd violence and other unlawful acts continue after issuance of an injunction, the union may be exposed to significant penalties for cirminal or civil contempt.
What type of civil suits can be brought related to Employer or Union/Union employee behavior?
State or Federal Law applies?
Employers can bring PERSONAL INJURY and PROPERTY DAMAGE lawsuits for damages they have suffered during the labor dispute.
PREEMPTION - States are NOT PREEMPTED from granting “compensation for the consequences, as defined by the traditional law of tors, of conduct marked by violence and imminent threats to the public order.”
-Suits can be brought against individual union members for their tortious acts BUT if brought in Federal Court - MUST BE “CLEAR PROOF” that the union approved of, actively participated in or knowingly tolerated the unlawful acts.
***DEFAMATION - Supreme Court has held that federal labor law DOES NOT preempt a State Court libel action, however the federal labor law may protect “vehement, caustic and sometimes unpleasant sharp attack” and that such immunity can be lost only if the speech is made with KNOWLEDGE OF ITS FALSITY OR RECKLESS DIREGARD OF WHETHER IT IS TRUE OR FALSE. In practice, most statements made in a labor dispute will be considered PROTECTED SPEECH.
**DANGER OF FILING SUIT - filing a frivilous suit (in context of labor dispute) or maintaining suit after clear it lacks merit - CAN BE AN UNFAIR LABOR PRACTICE if suit is brought or maintained to retaliate against strike activity. Ex. suit against unions and members for signs calling company and president “scabs” violated NLRA, suit describing officer of company as “Hitler” or “Gestapo” not basis for defamation claim.
When is it ever appropriate to bring a claim against a Union for strike related violence and what must be proven?
ACT VIOLATION: Section 8(b)(1)(A) - Makes it an unfair labor practice for union to “RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED UNDER SECTION 7”
Facts amounting to Unfair Labor Practice:
- violence, intimidation, reprisals or threats against employees not joining Union
- violence against management, supervisors and others (on the grounds that employees are likely to hear of such violence and be threatened by it.
Union to be held Responsible: MUST BE PROOF THAT Union Officials AUTHORIZED, PARTICIPATED IN OR RATIFIED THE VIOLENCE
Ex. Evidence could be presence of Union agents on th picket line when misconduct occurs or the Union’s failure to take steps to end the violence after it has knowledge of it.
*If a Union continues to violet a Board cease and desist order after it has been enforced by court of appelas, it can be held LIABLE FOR CONTEMPT (Union showed tolerance of continued violence when it was aware of continuing misconduct and took not steps to prevent it; contempt finding upheld)
What is the prima facie case under the ADAAA for a Plaintiff bringing a discrimination claim?
Is there a claim in Texas for disability discrimination, what Act is it under and how is it different?
Prima Facie Case under the ADA requires a Plaintiff to show, that he
(1) has a disability
(2) was qualified for the job (*Perform the Essential Functions of the Job in spite of her disability OR she could do so with an identified “Reasonable accomodation of her disability”
(3) was subject to an adverse employment decision BECAUSE of his disability
Shirley v. Precision Castparts Corp. (5th Cir. 2013)
TEXAS - Yes, there is a disability discrimination claim under the Texas Commission of Human Rights Act and the elements for discrimination are essentially the same. (The TCHRA is modeled after federal civil rights law) Barricks v. Minyard Foods 170 F3d 184 (5th Cir. 1999)
What are the elements of the DISABILITY-BASED HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM Prima Facie Case unde the Americans with Disabilities Act?
DISABILITY-BASED HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM Prima Facie Case:
1) that she belongs to a protected group;
(2) that she was subjected to unwelcome harassment;
(3) that the harassment complained of was based on her disability or disabilities;
(4) that the harassment complained of affected a term, condition, or privilege of employment; and
(5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Credeur v. State of Lousiana (5th Cir. 2017)
SEVERE OR PERVASIVE - Harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment. In determining whether a work environment is abusive, 5th Circuit considers the entirety of the evidence in the record, including “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.” (quoting Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). 5th Circuit says threats of termination or criticism of work environment are not severe and pervasive. Kumar v. Shinseki, 495 F. App’x 541, 543 (5th Cir. 2012) (criticism in the workplace and threats to employee’s job did not constitute actionable harassment). Compared to 5th Circuit Flowers case where the individual was treated with humiliation and offensive language after supervisor knew that she had HIV. Stopped going around her, listened to her phone calls, eavesdropped on phone calls, and subjected her to vulgar statements. The LEGAL STANDARD in this circuit is high to rise to the level of an actionable offense, the disability based harassment must be sufficiently pervasive or sever to ALTER THE CONDITIONS OF EMPLOYMENT & CREATE AN ABUSIVE WORKING ENVIRONMENT.
What is the difference between the Rehabilitation Act and the Americans with Disabilities Act as Amended?
FEDERAL EMPLOYEES, Entities receiving federal funds, federal contractors - The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules. Those employees should invoke the Rehabilitation Act.
5th Cir. States “The Rehabilitation Act and the Americans with Disabilities Act (ADA) have the same standards and provide the same remedies; case law interpreting either statute applies to both.”
