Section 1
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NLRB (National Labor Relations Board)
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Cards (207)
Section 1
(50 cards)
NLRB (National Labor Relations Board)
an agency created in 1935 to prevent unfair labor practices and to mediate disputes between workers and management
tort
A civil wrong
Intentional Infliction of Emotional Distress (IIED)
if an employer terminates an employee in an intentionally reckless or outrageous manner such that it causes serious emotional and psychological damage
covered employer
An employer that is engaged in a commerce industry and employs fifteen or more employees.
dual-purpose mission
a situation that occurs when a principal requests an employee or agent to run an errand or do another act for the principal while the agent is on his or her own personal business
contract
a binding agreement between two or more persons that is enforceable by law
enumerates
count; list or name one by one
direct evidence
Evidence that establishes the existence of a fact that is in question without relying on inference.
Legislative Branch
the branch of government that makes the laws
Frolic and Detour
the activity of an agent or an employee who has departed from the scope of the agency and is not, therefore, a representative of his or her employer
joint employers
refers to two or more employers who employ the same individual this situation and most often arises where a temporary staffing agency, in addition to the employer, has control over a worker at a firm. In such cases, that employee is counted for statutory coverage and liability purposes for each employer. For example, Susan files a charge against DeVille Corp. alleging that she was subjected to religious harassment. DeVille Corp. has 13 regular employees and 5 employees assigned by a temporary agency, who are jointly employed by DeVille and that agency. Here, DeVille has 18 employees for employment law purposes.
Economic Realities Test
A test by which the courts consider whether the worker is economically dependent on the business or, as a matter of economic fact, is in business for himself or herself. seeks to look past technical, common-law concepts of the master/servant relationship to determine whether the "economic reality" of a working relationship renders a worker substantially dependent on a given employer. The deciding point is whether the worker has little freedom to exit the relationship because he or she is economically dependent on the business to which he or she renders service. Courts which have applied the economic reality test look at the following: the degree of control exerted by the alleged employer over the worker; the worker's opportunity for profit or loss; the worker's investment in the business; the permanence of the working relationship; the degree of skill required to perform the work; and the extent to which the work is an integral part of the alleged employer's business.
integrated enterprise
A business environment in which operations of two or more employers are so intertwined that they can be considered as a single employer for purposes of federal statutory coverage and liability. Factors, which are considered in whether two or more firms constitute an integrated enterprise for employment law purposes, are: The degree of interrelation between operations, such as sharing management services, payroll, and office space. The degree to which the entities share management, as in having a common slate of managers, officers, and directors. The degree of common control of labor relations, as in human resources administration or personnel policy development. The level of shared ownership.
Executive Branch
the branch of government that carries out laws The executive branch is composed of the President and other executive leaders, such as the Vice-President and the Cabinet. The President and the Vice-President are elected by the people, while cabinet members, who lead major departments in the federal government, are appointed by the President. The executive branch conducts foreign affairs and ensures that sound laws are created and enforced.
employment at will
A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.
IRS 20-factor analysis
A list of 20 factors to which the IRS looks to determine whether someone is an employee or an independent contractor. guide to employers in determining if workers are indeed independent contractors. Most of these factors relate to control by the employer. The 20-factor analysis includes for consideration the following elements: Instructions. Who controls when, where, and how work is to be done? Training. How much training does the employer give? Integration. How closely are the employer's business processes linked to a worker's performance? Services rendered personally. How much right of substitution to allow others to do the work does a worker have? Hiring assistants. Does the worker control who is hired as an assistant? Continuing relationship. How long and how often has the worker provided services? Set hours of work. Does the employer set specific and inflexible work hours? Full time required. Is the worker expected to devote all of his or her resources and time to one employer on a full-time basis? Work done on premises. Does the worker have his or her own place of business? Order or sequence set. Does the employer set the order or sequence in which services must be performed? Reports. Does the employer require submission of regular reports? Payment method. Is the worker paid by the hour or by the job? Expenses. Does the worker cover his or her own overhead expenses? Tools and materials. Does the employer furnish tools and equipment? Investment. What is the level of worker investment in the means of doing the work? Profit or loss. Does the worker bear the risk of loss in the arrangement? Works for more than one person at a time. Does the worker work for more than one employer at a time? Services available to general public. Does the worker offer his or her services to the general public? Right to fire. Is termination dictated by a contract or does the employer hold a right to fire? Right to quit. May the worker quit without incurring any liability?
Independent Contractor
One who works for, and receives payment from, an employer but whose working conditions and methods are not controlled by the employer. An independent contractor is not an employee but may be an agent.
Disparate Treatment
intentional discrimination
Bona Fide Occupational Qualification (BFOQ)
a necessary (not merely preferred) qualification for performing a job A couple of examples of BFOQ are the following: Hiring only male attendants to provide towels in the men's locker room of a premium health club. The restaurant "Hooters" hires only female wait staff, in accordance with its branding. A BFOQ for most class characteristics is difficult to establish.
Covered Employment Agency
An agency that regularly procures employees for at least one covered employer-subject to employment law regulation.
comparative evidence
where two employees were similarly situated but were treated differently merely because of a class characteristic. For example, if three employees were caught stealing and two white employees were fired, but a black employee was not, there could be a case for disparate treatment discrimination by the white employees.
Common Law Agency Test
A test used to determine employee status; though it considers several factors, the most critical is whether the employer has the right or ability to control the work a worker is an employee if the employer maintains the right to control the method of work performed. The level of control retained by the employer is the central question.2 For example, a worker classified as an independent contractor, but who must conform to strict standards of work hours, grooming, dress, billing processes, reporting procedures, and so on, is really an employee.
Montana Wrongful Discharge From Employment Act of 1987 (WDEA)
The WDEA prohibits termination for anything other than good cause once an employee has successfully passed a probationary period and allows for an employee to seek arbitration for a termination dispute. The positive for employers is that the WDEA limits employee damages for wrongful termination to four years of compensation.
agency
a contract relationship (a legally binding agreement) between a principal and an agent whereby the principal, expressly or implicitly, authorizes the agent to work on his or her behalf and with the power to bind the principal. In the employment relationship, the employer is the principal and the employee is the agent. Both parties have an obligation to act in good faith to fulfill their obligations under the relationship. The employee has power to act as agent only to the extent authorized by the employer. This authority may be great or it may be very limited. If the agency relationship vests the employee with power to contract, the employer is responsible to third parties for the contract obligations entered into on its behalf by the agent.
Respondeat Superior
"Let the master answer" an employer is vicariously liable for the behavior of an employee working within his or her scope of employment
Disparate Impact
unintentional discrimination
Constructive Discharge
A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave.
precedent
a controlling rule, example, or guide—which provided a framework for other judges to follow in deciding later cases. A very simple example would be if a court found that stealing business account files was a crime; a later court could use the same principle to find that stealing business computer files—an issue not before encountered—was also a crime.
A labor organization is subject to federal employment law statutes as if it were an employer if any of the following are true of it:
It represents the employees of an employer. Its membership exceeds a certain level. It maintains a hiring hall which procures employees for at least one covered employer. It is engaged in an industry-affecting commerce.
Statute of Frauds
A state statute under which certain types of contracts must be in writing to be enforceable.
stare decisis
Let the decision stand; decisions are based on precedents from previous cases
implied contract exception
provides that an implied employment contract may arise from statements the employer makes in an employment handbook, length of service, statements by the employer indicating long-term employment, or materials advertising the position
defamed
Damaged the reputation, character, or good name of by slander or libel
Scope of Employment
Actions performed by employees relating to the kind of work that they were hired to perform; taking place substantially within the workplace during work hours; and serving, at least partially, the interests of the employer
IRCA
(1986) Immigration Reform and Control Act -offered amnesty to approx. 3.7 million undocumented immigrants who had continuously resided in the U.S. since before Jan. 1, 1982; made it illegal for employers to knowingly hire undocumented workers; failed to solve the problem of undocumented immigration must have 4 or more employees to apply
Progressive Discipline
System of increasingly severe penalties for employee discipline.
intentional interference with contract
The tort that occurs when someone intentionally takes an action that will cause a person to breach a contract that he or she has with another.
Judicial Branch
the branch of government that interprets laws The judicial branch, is the court system of the country and is comprised of the United States Supreme Court and other federal courts. Through actual legal controversies, the courts explain and define the meaning of the Constitution and laws passed by Congress. The Supreme Court is the highest court in the land and its decisions are final.
Senate
A council of representatives. 2 from each state
Vicarious Liability
Legal doctrine under which a party can be held liable for the wrongful actions of another party.
USERRA (Uniformed Services Employment and Reemployment Rights Act)
was passed by U.S. Congress and signed into law by U.S. President Bill Clinton on October 13, 1994 to protect the civilian employment of active and reserve military personnel in the United States called to active duty. The law applies to all United States uniformed services and their respective reserve components. Applies to all employers regardless of size.
public policy exception
An exception to the employment-at-will doctrine that prohibits employers from firing employees for doing something that is consistent with furthering public policy. This can include an employee refusing to break the law, exercising a legal right, fulfilling a statutory duty, or engaging in whistleblowing.1 The public-policy exception is not a uniform doctrine and each state varies in how it construes and applies the rule. Most states require that, in order to qualify as public policy, some principle must be expressly stated in a state constitution. Other states allow that the definition of public policy may be derived from state administrative regulations, ethics codes, and broad notions of public good and civic duty. Additionally, examples of employee actions protected by the public-policy exception might include an employee refusing to commit perjury, reporting child labor law violations, making a claim of discrimination, joining the national guard, serving on jury duty, voting, or filing a worker's compensation claim.
implied covenant of good faith and fair dealing
an exception to the employment-at-will doctrine, based on the theory that every employment contract, even an unwritten one, contains the implicit understanding that the parties will deal fairly with each other
Laws enforced by EEOC
The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; The Americans with Disabilities Act of 1990 (ADA) (Title I and Title V), and its 2008 Amendments (ADAAA), which prohibit disability discrimination in the private sector; The Rehabilitation Act of 1973 (Sections 501 and 505), which prohibit discrimination against qualified individuals with disabilities who work in the federal government; The Civil Rights Act of 1991, which allows for compensatory and punitive damages for violations of Title VII; and The Uniformed Services Employment and Re-employment Rights Act (USERRA), which protects military personnel from employment discrimination.
Retaliatory discharge
Result of an employer punishing an employee for engaging in activities protected by the law (e.g., filing a discrimination charge, opposing unlawful employer practices).
ADEA (Age Discrimination in Employment Act)
forbids discrimination against any person aged 40 or older in hiring, firing, promotion, or other aspect of employment. Requires you employ 20 or more to be in effect.
House of Representatives
the lower house of Congress, consisting of a different number of representatives from each state, depending on population
NLRA (National Labor Relations Act)
Wagner Act. Protects the rights of most workers in the private sector to organize labor unions, to engage in collective bargaining, and to take part in strikes and other forms of activity in support of their demands. Applies to all employers regardless of size.
Judicial Review
review by the US Supreme Court of the constitutional validity of a legislative act.
Pattern and Practice
When an employer's policies have the effect of discrimination for no legitimate business necessity. For example, an employer may claim that 50 percent of employees are non-white minorities or women. However, if the minority employees or women are concentrated in low-paying positions, and all the white employees in high-paying managerial positions, it may be that a firm has engaged in pattern and practice discrimination.
Section 2
(50 cards)
gender plus discrimination
Discrimination that results when an employer classifies employees on the basis of gender, plus another characteristic.
Americans with Disabilities Act (ADA)
Legislation passed in 1990 that prohibits discrimination against people with disabilities. Under this Act, discrimination against a disabled person is illegal in employment, transportation, public accommodations, communications and government activities.
SHRM
The Society for Human Resource Management; a professional organization for HR professionals
ADA Amendments Act of 2008
Retains the basic definition of "disability" under the ADA. However, it expands the definition of "major life activities" by including two lists of activities: The first list includes Equal Employment Opportunity Commission (EEOC) recognized activities such as walking and some not-specifically recognized EEOC activities such as bending, communicating, and reading. The second list includes major bodily functions. In short, this Act stresses that the definition of disability should be interpreted in favor of broad coverage of individuals to maximum extent permitted by the terms of the ADA.
Compensatory Damages
A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.
political function doctrine
holds that Title VII is not violated when citizenship is a requirement for non-elected governmental positions when those positions require formulation, execution, or review of public policy issues. In other words, legal aliens may be excluded from consideration for such positions. Finally, the Immigration Reform and Control Act prohibits employment discrimination on the basis of citizenship in firms with four or more employees.
ecclesiastical
having to do with the church or the clergy
customer discriminatory preference
An unacceptable pretext of discrimination in which an employer uses race as the basis for a business decision in order to please customers.
Rehabilitation Act of 1973
governs the authorization of grants to states for vocational rehabilitation services to those with severe disabilities. The Act also expanded previous federal responsibilities for research and training programs with respect to disabled persons. The Act defines an "individual with a disability" as a person who has a physical or mental impairment that substantially limits one or more of his or her major life activities, has a record of such impairment, and/or is perceived as having such impairment.
injunctive relief
remedy provided by a court decision preventing or requiring someone to perform a particular action.
reasonable factor other than age (RFOA)
May include any requirement that does not have an adverse impact on older workers, as well as those factors that do adversely affect this protected class but are shown to be job-related.
incivility
rude, intimidating, and undesirable behavior directed at another person
animus
hostile feeling or intent
Tangible Job Action
An employment outcome arising out of sexual harassment.
front pay
compensation for future economic losses arising from employment discrimination that cannot be remedied by traditional relief, such as hiring, promotion, or reinstatement.
Punitive Damages
Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future.
de minimis
small or minimal, insignificant
Reduction in Force (RIF)
Termination of employment of individual employees and groups of employees for reasons other than performance, for example, economic necessity or restructuring; also known as downsizing.
Affirmative Action
any action taken by an employer to overcome discriminatory effects of past or current practices or policies that create barriers to equal employment opportunity. The focus of AA is to assist historically disadvantaged groups in employment, which includes women, African Americans, Asians, Pacific Islanders, disabled persons, and veterans. Affirmative Action has its genesis in presidential action.
Proselytizing
putting pressure on someone or forcefully attempting to convert someone from one religion to another
bona fide
in good faith
Executive Order 8802
In 1941 FDR passed it which prohibited discriminatory employment practices by fed agencies and all unions and companies engaged in war related work. It established the Fair Employment Practices Commission to enforce the new policy.
demarcation
a line that marks a boundary
Retaliation Claim
an individual asserts that she or he has suffered harm as a result of making a charge, testifying, or participating in a Title VII investigation or proceeding.
Theistic
believing in a god or gods
In judging whether to pursue claims, the EEOC looks at:
The frequency of the action The severity of the unwelcome conduct The physical or threatening nature of the harassment The impact on the victim's performance
Lilly Ledbetter Fair Pay Act (LLFPA)
For decades Lilly Ledbetter was paid less than her equally-situated male counterparts at Goodyear Tire. She sued under the EPA, and the Supreme Court held that her claim was barred because she failed to make a claim within 180 days of the first unlawful pay discrimination event. The LLFPA changed that rule and provides that the 180-day filing period begins to run on the date of any of three events: The adoption of a discriminatory practice or decision The application of the discriminatory practice or decision to the employee; and, most significantly, Each time wages, benefits, or compensation are paid under the practice or decision The LLFPA also expanded the list of persons aggrieved by the discriminatory pay practice to include family members and children of deceased workers.
major life activity
walking, seeing, hearing, speaking, breathing, working, learning, thinking, standing, lifting, caring for oneself, interacting with others, and sexual reproduction.
Older Workers Benefit Protection Act (OWBPA)
Under OWBPA provisions, employers may offer retirement incentives to older workers as long as the terms and restrictions of the incentives are fully explained and assurances given that another more favorable plan will not be imminently forthcoming (no one wants to accept a retirement package only to find that several months later a better option exists).
ameliorative
to improve, make better
ADEA waivers
A statement from a retiring employee that he or she will not make a personal ADEA claim against the employer in exchange for retirement incentives.
race and color employment discrimination encompass:
Ancestry—racial or ethnic background Physical characteristics—such as a person's color, hair, facial features, height, and weight Race-associated illnesses—for example, diabetes, obesity, and sickle-cell anemia affect some races more than others Culture—dress, grooming practices, accent, or manner of speech Perception—a belief that a person is a member of a particular racial group Association—a person's association with someone of a particular race (e.g., spouse, relatives, friends/associates of a certain race)
Same Actor Defense
This defense is applied when the same employer hires and then fires the over 39 plaintiff employee who claims discrimination. The courts have concluded that if the employer was willing to hire a person 40 years of age and older, a permissible inference is present that age was not a motivating factor in ultimate termination of that same employee.
Steps in Making a Reasonable Accommodation
EMPLOYER DISABILITY ACCOMMODATION PROTOCOL Step 1 - EMPLOYEE REQUEST FOR, OR EMPLOYER IDENTIFICATION OF, NEED FOR ACCOMMODATION Step 2 - IDENTIFICATION OF BARRIERS TO PERFORMANCE OF ESSENTIAL JOB FUNCTIONS Step 3 - COLLABORATIVE IDENTIFICATION OF POSSIBLE ACCOMMODATIONS TO OVERCOME BARRIERS Step 4 - ASSESSMENT OF THE REASONABLENESS OF NECESSARY ACCOMMODATION Step 5 - IMPLEMENTATION OF THE ACCOMMODATION Step 6 - CONTINUOUS EVALUATION AND ASSESSMENT OF THE ACCOMMODATION
proselytize
to persuade someone to convert to a faith, belief, or cause
Nation of Origin Employment Discrimination
An unfair or harmful employment decision on the basis of where a person or their ancestors are from, or on the culture or people that a person associates with.
vicariously liable
attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution.
Racial Animus
A type of race discrimination in which an employer obviously excludes an applicant from a job opportunity on the basis of race.
anti-female animus
An environment of animosity toward women.
precepts
a general rule intended to regulate behavior or thought
English-only rule
- Can only be adopted for non discriminatory reason - Rules that require English AT ALL time is discriminatory
buttressed
increase the strength of or justification for; reinforce
impetus
That which drives one; momentum
independent living movement
worked to take disabled persons out of isolation and institutions and place them squarely in the mainstream community of school and employment. This movement was instrumental in pushing for federal legislation to protect disabled persons from employment discrimination.
Adverse Job Action
A negative job action that results from an employee's lawful actions. For example, an employee cannot be subject to any negative job action for making a claim of disparate treatment discrimination under Title VII.
The prima facie case for a retaliation claim is
1) the employee engages in a protected activity; 2) the employee suffers some adverse employment action; and 3) there is a nexus - causal link - between the adverse employment action and the employee's protected activity.
remedies at law
A remedy available in a court of law. Money damages are awarded as a remedy at law.
impairment
any loss or abnormality of psychological, physiological, or anatomical structure or function
prima facie
based on the first impression; accepted as correct until proved otherwise
Steering Assignments
A type of race discrimination in which an employer hires a minority and assigns him or her to a less desirable position.
Section 3
(50 cards)
continuous leave
A type of leave in which an employee is absent from work for a continuous length of time.
organizational display
similar to an organizational chart, but it includes the demographics data for each position on the chart
psychological injury
In most states, worker's compensation applies to psychological injury only if it is the result of a single traumatic event.
reverse discrimination
the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously.
compensable
(of a loss or hardship) for which compensation can be obtained
Some forms of payment are subject to alternative rules under the FLSA.
For example, an employee who receives more than $30 in tips per month may be paid $2.13/hour, provided that tips collected in the workweek bring the total payments received to the minimum wage standard. The employer must make up any deficit. Pooling of tips is allowed under the FLSA. Minors over fourteen years of age are permitted to work in certain retail jobs, with strict restrictions on hours and times. Minors sixteen years of age are allowed to work in jobs that do not interfere with the child's health, education, or well-being, with the standards being set by state law. The FLSA exempts most farm workers from its provisions, including child labor. Finally, the FLSA allows employers to exempt certain employees from its provisions either fully or partially depending on the nature of the work position. The most commonly exempted employee is the white-collar professional who typically has a high degree of responsibility, works long hours, and receives high pay. It is the employer's duty to establish that such an employee is exempt from the FLSA standards. Titles do not matter, as it is the nature of the duties performed which determines exempt status. Employers must keep accurate job descriptions that support the exempt status or face large fines for mischaracterization of employees.
misnomer
an unsuitable or misleading name
three employer defenses severely limit the relief an injured worker could obtain. These are:
Contributory negligence-the worker's errant conduct that contributes to the injury Assumption of the risk-the worker knew and accepted the risk of potential injury; and Fellow servant rule-another employee, not the employer, caused the injury. Additionally, there were no national safety standards for the workplace, so work safety regulations and remedies to injured workers were uneven.
Reasonable Self-analysis
A review of what a contractor's workforce looks like.
Philadelphia Plan (1969)
Program established by Richard Nixon to require construction trade unions to work toward hiring more black apprentices. The plan altered Lyndon Johnson's concept of "affirmative action" to focus on groups rather than individuals. (1009)
Judicial Affirmative Action
Affirmative action ordered by a court as a remedy for discrimination found by the court to have occurred, rather than arising from Executive Order 11246.
Contributory Negligence
A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff.
Vietnam Era Veteran Readjustment Assistance Act
Passed in 1974, it requires contractors to take affirmative action toward veterans.
Qualifying Events under FMLA
Birth, adoption, or placement of a new foster child A serious health condition of the employee, or the employee's spouse, son, daughter, or parent.
Exempted Employee
Employees who are fully or partially free from FLSA provisions.
Occupational Safety and Health Act (OSHA)
Created to protect worker and health. Its main aim was to ensure that employers provide their workers with an environment free from dangers to their safety and health, such as exposure to toxic chemicals, excessive noise levels, mechanical dangers, heat or cold stress, or unsanitary conditions.
Fellow Servant Rule
An employer's defense to liability for an employee's injury where the injury occurred on the job and was caused by the negligence of another employee.
Underutilization
discrepancy between women and minorities in a particular position and how many qualified women and minorities exist in the constituent market. In other words, the difference between who is available and who is hired, promoted, etc, the idea being there would be little difference between the two, absent discrimination.
Serious health condition
As defined in the FMLA, a condition that requires inpatient hospital, hospice, or residential care or continuing physician care what constitutes a serious health condition is not easy and, with the exception of the birth or adoption of a healthy child, is not pleasant. It may include: 1) three or more days of incapacitating illness followed by continuing treatments; 2) incapacity related to a risky pregnancy; 3) long-term periods of illness related to serious conditions like cancer, heart disease, and stroke; or 4) absence from work to seek treatment for other serious physical or mental health conditions. The employee has a burden to provide the employer with health care provider certification that a serious health condition exists. The employer may require the employee to see a company-paid physician to make an additional assessment if it has concerns about the validity of the certification provided.
facto parents
a person who has been found by the court to have "assumed, on a day-to-day basis, the role of the parent, fulfilling both the child's physical and psychological need for care and affection, and who has assumed that role for a substantial period."
private sector
Businesses not associated with government agencies.
Fair Labor Standards Act (FLSA)
U.S act that establishes minimum wage, overtime pay, youth employment, and record-keeping standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Enacted in 1938
E-Verify
Internet-based verification system that allows employers to verify the employment eligibility of their employees regardless of citizenship.
General Duty Clause (OSHA)
Each employer has a general duty to furnish each employee a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm.
Executive Order 10925
signed by President John F. Kennedy on March 6, 1961, required government contractors to "take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin."It established the President's Committee on Equal Employment Opportunity.
Usual Exertion Rule
the injury is compensable, notwithstanding the previous condition, if the ordinary stress and strain of employment is a "substantial factor" in causing the injury.
exempt
free from obligation
Continual Training Requirement
OSHA requires that the employer provide safety training to all new employees and to all employees who have been transferred into new positions.
public sector
that part of the economy made up of the local, state, and federal governments
Negligent retention
occurs when an employer becomes aware that an employee may be unfit for work but continues to employ the person, and the person injures someone
compensatory time
time off from work rather than money for working overtime not allowed in the private workplace. It is allowed for public employers. Congress made this distinction to save the public coffers from the burdens of overtime payments.
Job group analysis
Part of affirmative action plan that lists all job titles that comprise each job group having similar content and responsibilities, wage rates, and opportunities for advancement.
Immigration and Nationality Act of 1952 (INA)
Allows employment of immigrant workers in certain specialty occupations, such as engineers, teachers, computer programmers, medical doctors, and physical therapists.
opportunity wage
A reduced minimum wage ($4.25 per hour) that can be paid to teenagers during their first 90 days at work.
Placement goals
Objectives or targets in an affirmative action plan that are set when the percentage of minorities or women in a job group is less than reasonably expected given their availability.
Family and Medical Leave Act (FMLA)
Federal law requiring organizations with 50 or more employees to provide up to 12 weeks of unpaid leave after childbirth or adoption; to care for a seriously ill family member or for an employee's own serious illness; or to take care of urgent needs that arise when a spouse, child, or parent in the National Guard or Reserve is called to active duty if the employee has worked for the firm for 1,250 hours in the twelve months prior to taking leave, experiences a qualifying event, and provides timely notice to the employer.
Workers Compensation
a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for relinquishment of the employee's right to sue the employer for negligence. The system requires employees to accept an assured limited benefit over the risk of receiving nothing in a private lawsuit and provides the employer with reduced liability and cost predictability.
heart attacks and strokes
will only apply if the employee is injured while engaged in unusual exertion at work.
objective
unbiased; not subjective
Immigration Reform and Control Act of 1986 (IRCA)
Requires employer to verify employees' eligibility for employment in the US.
Worker's compensation benefits are fixed by law and typically include
replacement income - usually two-thirds of normal pay - and all medical costs associated with the injury and rehabilitation. This coverage is separate from any other medical benefits the worker may receive. Moreover, income payments vary on whether a worker has been disabled partially or permanently.
Voluntary Affirmative Action Plan
A plan put into place by an employer whose self-analysis reveals effects of past discriminatory action.
reasonable rationale
A sensible justification for an affirmative action.
Executive Order 11246
in 1965, President Johnson issued Executive Order 11246, which required that contractors and their subcontractors doing business with the federal government must have a nondiscrimination clause in contracts and abide by its terms. The Order requires government contractors to "take affirmative action" toward prospective minority employees in all aspects of hiring and employment.
Compliance Requirements
mandates that every employer must comply with all DOL safety and health requirements. These standards may include rules for providing emergency exits, training on storing and using chemicals, proper ventilation, safety nets and rails, protective eyewear or masks, and even periodic medical exams. Under this requirement, employers are required to provide training to workers on a periodic basis and whenever an employee is hired or transferred to a new job assignment.
consent decree
For administrative agencies, a type of plea bargain; a settlement document for an administrative agency's charges.
workforce analysis
List of job titles ranked from lowest-to highest-paid within an organizational unit.
alien
a citizen of another country; foreign, strange
Assumption of Risk
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
AA plan must contain three basic requirements
Reasonable self-analysis Reasonable rationale for taking corrective action Reasonable action
Section 4
(50 cards)
Orwellian
frightening and overcontrolled by a government that interferes in nearly every aspect of personal life
Official Bargaining Unit
A group of workers represented by a union in collective bargaining .
defined benefit pension plan
a pension plan that provides an annuity to eligible employees upon their retirement with the amount paid per year based on a formula that usually includes a company-determined percentage, the number of years worked, and either the last salary or some average of previous years' salaries
community of interests
Factors employees have in common for bargaining purposes
Summary Plan Document (SPD)
One of the most important documents participants are entitled to receive automatically when becoming a participant of an ERISA-covered retirement or health benefit plan or a beneficiary receiving benefits under such a plan, is a summary of the plan, called the summary plan description or SPD. The SPD becomes the controlling document interpreting employee benefits, and employees may not rely upon oral representations. However, a business which orally misrepresents the terms of its benefit plan will have violated ERISA.
concerted activity
When two or more non-union employees act together to try to improve working conditions, or when a single employee approaches management after conferring with other employees on their behalf, or is acting on behalf of other employees, their actions are covered by NLRA
Employee Polygraph Protection Act of 1988
prevents employers from using polygraph tests for employment recruiting and retention purposes. A polygraph test - also known as a lie detector test - employs an instrument that continuously measures heart, respiratory, and skin reactions of a subject while that person is asked a series of questions. The theory is that, when under the stress of lying, a subject's body will involuntarily react to show honesty or deception. However, the statute excludes federal, state, and local government employers from its application, and it contains additional exemptions for national defense and security contractors, FBI agents, private security firms, and pharmaceutical firms. Additionally, polygraph tests are allowed for employees reasonably suspected of involvement in activities that would harm the business or cost it money. This would include incidents of theft, embezzlement, misappropriation, and acts of unlawful industrial espionage or sabotage. The employer must have a reasonable suspicion that the employee had access to the stolen property and is a reasonable subject of investigation. Additionally, the law does not allow polygraph testing of employees for investigating workplace drug use, thefts from co-workers, accidents, or routine shortages in inventory or cash drawers. Refusal to take a polygraph test, even when permitted by law, may not be used as the sole basis for terminating or discriminating against an employee. Employers may face fines of up to $10,000 per incident for violations.
Intrusion upon seclusion
a common law doctrine stating that a person's privacy rights are violated when the intrusion upon his or her private concerns would be considered highly offensive to a reasonable person In order to establish a claim of intrusion upon seclusion at work, an employee must show that: There was an unauthorized employer intrusion or prying into his or her seclusion The employer intrusion was highly offensive to a reasonable person The matter intruded upon was private The intrusion caused anguish and suffering The tort deals with the collection of information about an individual, rather than the dissemination of that information, and can involve a physical or electronic invasion. Courts have found that unreasonable employer surveillance, without notice, is a highly-offensive intrusion to a reasonable person. Successful claims for this tort have involved an employer requesting information from an employee to which the employer is not entitled, asking other employees for personal information, requiring unwarranted polygraphs or medical tests, or going into private places of an employee, like a purse, wallet, cell phone, or private locker.
union shop clause
a union arrangement that requires new employees to join the union 30 to 60 days after their date of hire which allow, in collective bargaining agreements, a condition that all workers must join the union once hired - were heavily restricted, and states were allowed to pass right-to-work laws that gave workers freedom to not join a union if they wished. Twenty-four states currently have right-to-work protections.
free riders
those who enjoy the benefits of collective goods but did not participate in acquiring them
Federal Whistleblower Statute
Enacted in 1982, it protects contractor employees from employment discrimination or retaliation for reporting company violations of the law. under the Whistleblower Protection Act, an employee must give a written explanation of how an alleged wrongdoing involved the mismanagement, waste, or abuse of public funds, or posed a danger to the safety and health of the public.
engenders
cause or give rise to (a feeling, situation, or condition).
Drug-Free Workplace Act of 1988
requires federal contractors doing more than $100,000 in business with the federal government to ensure a drug-free workplace through education and enforcement of drug-free policies. However, it does not require drug testing.
recalcitrant
stubbornly disobedient, resisting authority
Electronic Communications Privacy Act (ECPA)
A federal law enacted in 1986 that extends legal protection against wiretapping and other forms of unauthorized interception and explicitly allows employers to monitor employee communications on company equipment as long as this is done in the ordinary course of business or the employee consents to the monitoring.
Employee Retirement Income Security Act (ERISA)
while not requiring that benefits be provided, does require that when benefits are provided, employers must provide correct information about benefits, actually deliver on the promised benefits, allow for a review mechanism for disputes, manage employee funds to a high level of care, abstain from interfering with the employees' benefit rights, specify premiums and copays, and identify the benefits' administrator and other factors which could reasonably and substantially impact benefits. The employer provides this information to an employee within ninety days of the beginning of coverage in a document called a summary plan document (SPD).
National Labor Relations Board
an independent agency of the United States government charged with mediating disputes between management and labor unions
concomitant
accompanying
federal anti-trust law
A law that prevents anti-competitive behavior within local commerce. "Monopolies"
Omnibus Transportation Employee Testing Act (Omnibus Act)
authorizes and regulates drug testing of employees in the airline, railroad, trucking, and public transportation sectors. The Omnibus Act requires pre-hire testing and post-hire random drug screens and sets procedures for ensuring drug test accuracy, chain of custody rules, and employee discipline procedures.
placement in a false light
A type of privacy tort. Occurs when characteristics, conduct, or beliefs are falsely attributed to an individual, this false information is broadly publicized, the person publicizing the information knew or should have known that it was false, and being placed in this false light would be highly offensive to a reasonable person.
Norris-LaGuardia Act of 1932
This law protects employees' rights to organize, peacefully strike, picket, and boycott Also known as the Federal Anti-Injunctive Act, Norris-LaGuardia was the first significant comprehensive labor statute governing the interplay between unions and business. It is important because it: Formally established the legitimacy of unions and labor organizing efforts Articulated that employment to a worker was more significant than the worker to the firm Established a public policy recognizing that collective bargaining was the only way workers could effect meaningful change in the conditions of their employment Curtailed the use of federal courts to intervene or issue injunctions in labor disputes Declared yellow dog contracts to be against public policy and rendered them unenforceable in any United States court Because Congress stated the intent of the Norris-LaGuardia Act so clearly, federal courts were less inclined to read it narrowly, as they had done the Clayton Act. Consequently, Norris-LaGuardia permitted unions to freely engage in a broad range of collective bargaining activities.
Pre-adverse Action
A statement issued to an applicant from an employer that discloses negative information found and information about his or her rights.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
prevents any employer from discriminating against someone who is, or has been, in military service. Unlike other federal statutes that have a minimum number of employee requirement, USERRA applies to all employers regardless of size. Military employees are entitled under USERRA, upon proper notice to employers, to leave jobs to attend to military duties. Employers are not required to pay employees while on military leave, but must offer health insurance for short leaves and long leaves and allow for the provision of health coverage at the employee's expense. USERRA entitles returning veterans to reemployment following an honorable tour of duty, and within a five-year period, at "substantially the same" position and pay to that which was held prior to the call. Specifically, the law requires employers to provide prompt reinstatement; accrued seniority with retained status and rate of pay; pension vesting and credit for the period for pension benefit computations; retraining and other accommodations; and special protections against discharge. The employer does not have to place the returning veteran employee in exactly the same position he or she held prior to the call to duty. If the veteran is disabled, the employer must make reasonable efforts to accommodate the employee, and the rules of the Americans with Disabilities Act apply. There are several exceptions to the rule. The employer need not rehire a returning veteran if: The veteran fails to return to work within a specified time following military service Subsequent circumstances have made it "impossible or unreasonable" The prior employment was brief and carried no expectation of reemployment Additional new training of the employee would place an undue hardship on the employer A somewhat controversial provision of USERRA is its requirement of the so-called escalator principle. The principle requires an employer to place a returning veteran in a position which he or she may have attained, absent the military leave. Historically, under some earlier versions of service member employment protections, employers would attempt to circumvent reemployment requirements by engaging in sham rehires, whereby the veteran was hired and then terminated shortly thereafter. The USERRA blocks this maneuvering by requiring that in the first 180 days following rehire, a returning employee may only be terminated for cause.
common law criminal conspiracy
A conspiracy is a combination of two or more persons planning to accomplish an unlawful purpose. Businesses claimed that workers organizing together to influence wages, prices, and trade was unlawful and, therefore, organizers were guilty of conspiracy. The threat of criminal prosecution and hefty fines to workers, along with courts willing to impose them, placed a shadow over union efforts to improve working conditions.
Section 806 of Sarbanes Oxley Act
extended whistleblowing protection to any employee or agent of a publicly-traded company who discloses or assists in the investigation of company fraud upon shareholders. Many states have whistleblower protection statutes that cover public and private employees who report waste and abuse of public funds. Whistleblower protection is supported by strong public policy considerations, because, besides the obvious issue of saving the public purse from theft, citizens have an interest in the integrity of standards safeguarding the financial system and public health and safety.
HIPAA
Health Insurance Portability and Accountability Act of 1996 One of the main features of HIPAA is its prohibition against the release of private medical data without the permission of the individual covered. Permission is obtained by an authorization form, signed by the individual, that identifies what information is sought to be disclosed, how long the permission is requested, who may disclose it and to whom, and for what purpose it is needed. These disclosure rules apply to all entities which process certain medical information electronically or deliver health care services or benefit plans. These entities are entitled under HIPAA to use private health care information for internal purposes, which would include treating a patient, obtaining payment for services, and researching internal systems and processes in the delivery of services. Entities may also release private party health information if required to do so by law under a court order, a federal government compliance review, or a county medical examiner cause of death inquiry. Also, as with most federal laws, if an individual state has stricter privacy or compliance rules, usually the lesser federal rule will give way to the more strict state provision. HIPAA-covered entities are required to adopt organization-wide privacy policies and procedures and to inform all employees of these rules. Moreover, employees who work with sensitive personal medical data are required to receive specific training on privacy rules. Electronic, physical, and other methods must be implemented to protect the security of health records and entities are subject to review of these safeguards by the Office of Civil Rights. Entities are subject to criminal and civil penalties for violation of privacy rules. Moreover, individuals who willfully disclose private health information may face, in addition to civil liability, criminal sanctions, which could include fines and prison time. Another important purpose of HIPAA is to restrict employers' use of an employee's pre-existing medical condition to exclude coverage or charge more for medical benefits. The exact language of the statute provides that employees may not be excluded from a health benefit by a condition "for which medical advice, diagnosis, care, or treatment was recommended or received within the 6-month period ending on the enrollment date." Other rules on the length of exclusionary periods apply, and pregnancy may not be considered a pre-existing condition.
attenuate
to weaken
Labor Management Relations Act of 1947
more commonly known as the Taft-Hartley Act (Taft-Hartley), which was designed to curb union overreaching. Taft-Hartley amended the NLRA to protect a worker's right not to engage in concerted activity and outlined the unfair labor practices in which a union could engage. Taft-Hartley also prohibited wildcat strikes (strikes not authorized by the union), solidarity or political strikes, secondary boycotts (employment action in support of another union), secondary and mass picketing, monetary donations by unions to federal political campaigns, and closed shops. Taft-Hartley also made illegal a closed union shop, or one that makes union membership a condition of employment. The effect of a closed shop was to give the union power to determine from which pool of applicants an employer could choose workers and to discipline uncooperative workers by removing union membership, thereby terminating employment.
The Consolidated Omnibus Budget Reconciliation Act (COBRA)
federal act that allows an employee - at his or her own expense - to continue company health care benefits for up to eighteen months when he or she leaves a job. COBRA applies to firms with twenty or more employees and authorizes the firm to charge a two percent premium for administering the costs of the coverage for a former employee. The Department of Labor and the Internal Revenue Service jointly supervise COBRA compliance. Employers must notify exiting employees of their rights under COBRA and may face penalties in the form of excise taxes. An exiting employee must exercise coverage rights within sixty days.
defined contribution pension plan
pension income varies depending on how well the plan's investments have done These may include 401(k)s, stock bonus plans, matching programs, and other profit-sharing schemes. These plans are safer for the firm, as no promises are made regarding what the plan will be worth at an employee's retirement.
codified
written definitions of crimes and punishment enacted by legislatures and published
Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)
also known as the Landrum-Griffin Act, covers both workers and unions covered by the NLRA and workers and unions who are covered by the Railway Labor Act, but not public sector workers and unions. Specifically, LMRDA created a union member "bill of rights" which included the right to attend union meetings, vote in elections and on union business, and nominate and vote for candidates in secret elections. Additionally, members were now authorized, after the exhaustion of union grievance procedures, to bring the union to court, and were entitled to due process - notice and an opportunity to be heard - prior to any union discipline. The fact that these rights, which appear to be obvious privileges of union members, had to be spelled out by statute reflects the depth of abuses on union democratic processes. Restraints on union practices were also included in the LMRDA. For example, unions were required to hold elections for officers every three years, and candidates for office could have access to voter rolls. A process was put in place to challenge election irregularities. Additionally, unions were compelled to submit annual financial reports to the Department of Labor and were limited in the temporary suspension of union democratic processes. Standards were defined and put in place for increasing union dues. There were also changes in the rules governing union officers, which included the command that every union officer must act as a fiduciary in handling the assets and affairs of the union, must disclose conflicts of interest, and may not be a convicted felon. The LMRDA made it a federal crime to embezzle or steal union funds.
Clayton Act of 1914
prohibited the elimination of unions and expressly removed union organizing efforts from the "anti-combination" language of the Sherman Anti-Trust Act.
Public Disclosure of Private Facts
occurs when someone publicizes a private fact about another that a reasonable person would find highly offensive
Right-to-work state
A U.S. state that has passed a law preventing a union and company from negotiating a contract that requires workers to join a union as a condition of employment.
Abuse of Discretion
When an agency has not properly followed the APA rules or has acted in an "arbitrary or capricious" manner
Fair Credit Reporting Act (FCRA)
regulates how consumer reporting agencies collect, correct, disseminate, and use consumer credit information.
yellow dog contract
an agreement some companies forced workers to take that forbade them from joining a union. This was a method used to limit the power of unions, thus hampering their development.
National Labor Relations Act (NLRA)
federal law that supports collective bargaining and sets out the rights of employees to form unions
right-to-work laws
A state law forbidding requirements that workers must join a union to hold their jobs.
enumerated
listed
Sherman Anti-Trust Act
an 1890 law that banned the formation of trusts and monopolies in the United States
Vesting
the process by which an employee accrues non-forfeitable rights over employer-provided pension plan contributions. An employee's personal contributions to any plan are always vested in the employee and employers may not reduce any benefits already earned.
Pension plans
company plans that provide retirement income for their workers
Intermittent Leave
periods of leave mixed with periods of work
Appropriation of image or likeness
A type of tort in which an employer uses the name, image or likeness of an employee for commercial purposes in a way that is not described in the job description.
False Claims Act (FCA)
A federal law that prohibits submitting a fraudulent claim or making a false statement or representation in connection with a claim.
Fiduciaries
Persons placed in positions of trust who use due care and loyalty in acting on behalf of the best interests of the organization.
Consumer Reporting Agency (CRA)
company that compiles and keeps records on consumer payment habits and sells these reports to banks and other companies to use for evaluating creditworthiness For example, in jobs where financial stability is an important qualification, the credit information about an employee provided by the CRA is vital to protecting an employer's assets. The type of information covered by the FCRA includes: Medical records or payments Residential or tenant history Check writing history Employment history Insurance claims Section 1681 of the FCRA provides that the term "consumer report" means "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used, or expected to be used, or collected in whole, or in part, for the purpose of serving as a factor in establishing the consumer's eligibility for... employment purposes...." Before an employer may seek an inquiry into the background of a job applicant or employee through the use of a CRA consumer credit report, it must obtain written consent from the applicant. This permission must be obtained on a separate notice, not a job application, informing the applicant that the information obtained from the report will be used in making the hiring or promotion decision. If an applicant refuses consent, the employer does not have to consider him or her for employment.
Section 5
(7 cards)