Law final review - Jamie Jorgenson - Cumulative exam but focused (about 80 questions) on material PDF

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Jamie Jorgenson - Cumulative exam but focused (about 80 questions) on material covered since the midterm!! So 20 were from before the midterm. ...

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EMPLOYENT LAW – Jorgensen Fall 2017: Final Exam Study Guide  

100 points/100 questions – all T/F or multiple choice Cumulative, but focused (about 80 questions) on material covered since the midterm

CH14 – UNION QUESTIONS – FLSA – TONS OF Q’S Accommodations Disability: Title 7 REMEMBER TITLE 7: RACE, COLOR, RELIGION, NATIONAL ORGIN, SEX Age is not covered by TITLE 7!!!!!!!

Protected classes  Race, Color ◦ Title VII, 42 U.S.C. §1981  Sex ◦ Title VII, Equal Pay Act  National Origin ◦ Title VII, 42 U.S.C. §1981, Immigration Reform and Control Act  Religion ◦ Title VII  Federal Antidiscrimination Statutes:  Citizenship (citizens or legal aliens) ◦ Immigration Reform and Control Act  Age - 40 and over ◦ Age Discrimination in Employment Act  Disability “Qualified individual with a disability” ◦ Americans with Disabilities Act; The Rehabilitation Act  Federal Antidiscrimination Statutes:  Pregnancy (pregnancy, childbirth, related) ◦ Pregnancy Discrimination Act  Military Service ◦ Uniformed Services Employment & Reemployment Rights Act  Genetic information ◦ Genetic Information Nondiscrimination Act Proving discrimination cases – desperate treatment, prima fasi, employer reason, pretext (1-2 ?’s)  1) Plaintiff must prove a prima facie case: ◦ Plaintiff’s relevant protected class characteristic ◦ Plaintiff was at least minimally qualified ◦ Adverse action results in denial of an employment benefit, and ◦ That benefit continues to be available for others or was given to someone outside the protected class  E.g., more favorable treatment of similarly situated, non-protected class individual(s)  2) If Plaintiff proves a prima facie case, then Defendant must produce evidence of a legitimate, nondiscriminatory reason (“lawful motive”) for its action.  3) If Defendant produces such evidence, Plaintiff may rebut by: ◦ Providing evidence that casts doubt on Defendant’s claimed motive (“pretext”), and/or ◦ Providing other evidence supporting the claim of discriminatory motive ◦ See page 80  1) Plaintiff must prove a prima facie case:

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A neutral requirement disproportionately limits the employment opportunities of a protected class of which plaintiff is a member. ◦ The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. ◦ STATISTICS to show protected class v nonprotected  2) If Plaintiff proves a prima facie case, then Defendant must prove that the challenged requirement is job related and consistent with business necessity. ◦ In age discrimination cases, the employer must show that the requirement is a reasonable factor other than age.  3) If Defendant successfully defends the requirement, Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it. (Does not apply in age discrimination cases.)  1) Plaintiff must prove a prima facie case: ◦ Plaintiff participated in protected activity or opposed discrimination ◦ Plaintiff suffered a materially adverse (employment) action ◦ There is a causal link between the activity and the adverse employment action  2) If Plaintiff proves a prima facie case, then Defendant must produce evidence of a legitimate, non-retaliatory reason for the decision.  3) If Defendant successfully defends the decision, Plaintiff may rebut the claims by: ◦ Providing evidence that sheds doubt on the credibility of Defendant’s stated motive (“pretext”); and/or ◦ Providing other evidence that supports the claim that retaliation is the most likely explanation for the adverse action. ◦ Also prohibited: employer’s adverse action against someone close to the employee, a third-party retaliation

Independent contractor v Employee Why do we care about who is employee? Harassment

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Due Process v At-will employment (contracting notions) The starting point for any analysis or discussion of U.S. employment law is the “Employment at Will” doctrine. Many people mistakenly believe that they cannot be fired as long as they are doing a good job, but this is not true. Unless there is an exception, the Employment at will doctrine controls Under Employment at will:  An employee can quit at any time for any reason or no reason at all.  An employer can fire an employee at any time for any reason or no reason at all, except for reasons prohibited by law. If the parties’ relationship is governed by a contract, the contract controls.  Ex : employment contracts of executives & others; union collective bargaining agreements (CBAs) Employment Law: employers can separate employees for any legal reason Ex: cannot fire someone because they are a minority Contracts tend to go to high level executives, athletics

Ch. 11 - Family and Medical Leave Act (FMLA) Preliminary: are you employer who is covered?  Covered employers – government agencies and private employers with 50 or more employees in a 75 mile radius  Covered employees – at least one year of employment and 1,250 hours worked in the previous year  12 weeks of leave in each year for “qualifying events”  Serious health condition  Serious health condition of a child, spouse, parent  Birth or adoption of a child  Circumstances related to military service or injuries suffered in military service (not as common)

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Leave approval process o Advance notification by employee (was the leave foreseeable/unforeseeable?) 30 day notice o Eligibility Notice sent by employer o Medical Certification from employee’s health care provider o Designation notice sent by employer Paid or unpaid leave and the employer’s ability to require employees to use paid leave during FMLA Leave can be “intermittent” and unpredictable – challenging to manage these cases Employee maintains health insurance during leave Reemployment rights Anti-discrimination provisions and potential “interference” or retaliation violations by employers Unpaid leave – employees can’t string together FMLA and sick leave – 12 weeks is a long time to be gone – employers can require PTO to be concurrently with FMLA If employer denies time to take off or retaliates employees who take off time regarding FMLA can violate Conditions can come and go – not every day but employees may need chunks of times taken off which can be covered if qualifying event

Ch. 11 – Pregnancy Discrimination/USERRA/Fluency Requirements  Pregnancy Discrimination Act: an amendment to Title VII that clarifies pregnancy discrimination is a form of sex discrimination o Pregnancy cannot be treated less favorably than other temporary health conditions o Note that pregnancy is usually not an ADA disability, nor are pregnancy complications (because they are temporary, though not always) o Pregnancy violation – can’t discriminate against a women that is pregnant – remember: can’t treat pregnancy less favored than another health condition – should be treated FAIRLY USERRA – leave time for military service must be granted by employers o Nondiscrimination provision – military service is another protected class o Job reinstatement upon honorable discharge o “escalator clause” Anticipate if they would have gotten promotions/raises – very generous benefit o “just cause” discipline standard for a period of time upon return to the workplace If you come back – you become a “just-cause” employee after 6 mo. To help them get back in the swing of things Positive employment benefits If company experiences down turn b/c of economy – employee can bare risk from this – aren’t protected b/c of military service Has 90 days to say “im back and ready to come back” WILL BE ON FINAL!! SERVICE MEMBER GOES OFF, COMES BACK, GETS JOB BACK, NEXT 6 MONTHS MAKES THE EMPLOYER HAVE TO PROVE JUST-CAUSE – THIS KEEPS EMPLOYER HONEST – THEY’RE AT-WILL AFTER 6 MONTHS – GUARENTEE’S SOME PROTECTION FOR THE FIRST 6 MONTHS

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Language requirements – few questions on this o Fluency is often a legitimate job requirement, but not always o General disparate impact and disparate treatment concerns (national origin) o If you’re required to speak English and came from Mexico can be barrier of employment o Rules limiting the language used in the workplace should not be broader than is necessary to meet legitimate employment objectives like safety or customer service  must show that there is a relationship – must show it is necessary – must talk to supervisors, employees, customers, etc. Not overwhelming legal risk but should have justification among job duties  Other languages are forbidden – ILLEGAL – very rare is an “English-only” rule allowed, May be due to safety reasons – maybe an operating room to be allowed only English  Employment decisions based on English fluency and accents may constitute national origin discrimination

 However, an employee’s accent can be considered when communication is a significant part of the job, and the employee’s accent interferes with his ability to perform the job ◦ Could use disparate impact or disparate treatment analysis  Employers with bilingual or multilingual employees sometimes institute English-only rules that prohibit or restrict the speaking of languages other than English at work  EEOC’s guidelines provide that broad English-only rules applied at all times are presumptively discriminatory ◦ Narrowly tailored policies applied only at certain times are legal if a business necessity Don’t like English-only rules – better be for safety reasons such as working with explosives and communication is key!! This is really pushing it!

Ch. 4: Recruitment, Applications and Interviews  Benefit of using multiple recruitment methods o Understand the general discrimination concerns with the various recruiting methods discussed – advertising, word-of-mouth, promoting from within – specifically, the potential for disparate impact claims resulting from a relatively homogeneous applicant pool o Want ads and job announcements  Wording must be neutral o Employment agencies  May not discriminate on behalf of employer clients – CAN’T ASK THEM TO DISCRIMINATE o Nepotism, word of mouth hiring  Unless workforce is already diverse, tends to recruit similar employees o o o o

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Risk – duplicating race, religion, gender, etc. Word of mouth may not be good b/c it could show the same generation which allows no diversity b/c we hang out with people like us Single-source: We only recruit at Iowa, only go to 3 job fairs – this is mine but it depends on the characteristics of who comes out of Iowa – more diverse, better outcomes To determine whether disparate impact discrimination has occurred, the firm’s applicant pool will be compared to the relevant labor market - the protected class composition of people who are qualified for the type of work in question and reside within a reasonable recruitment area

Distinguish H-1B, H-2, and L-1 visas for aliens - Questions on this o

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H-1B:  Granted to persons in specialty occupations; capped at 65,000.  High skilled workers  Require a bachelor’s degree or higher.  Limits the employee’s stay to 6 years.  Typically, such applicants are systems analysts, engineers, accountants, etc. H-1B dependent employers:  15% of workforce are H1-B visa holders H2: temporary, AG work  For foreign nationals who come to the U.S. for temporary or seasonal work  H-2A visas are for agricultural or logging  H-2B visas are for temporary workers in other industries (but not nurses)  Employers using H-2 visas must show that there are not enough U.S. workers, and these will not adversely affect the wages of U.S. workers.  Temporry

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L-1: Transfers, within the same company – wants to transfer from someone from Italy to work into the U.S. visas permit multinational firms to temporarily transfer staff from foreign facilities to the U.S.  Attractive to employers because number not capped, and carry fewer restrictions  But under increased scrutiny  No requirement that these workers be paid the prevailing rate  Firm must station employees at company’s own facilities and retain supervisory authority

Applications and Interviews o 1 year record retention requirement o Risky or prohibited pre-employment inquiries  – illegal and risky interview questions  Illegal: health, age, sex, race, religion – not prohibited but TERRIBLE idea unless there’s a very specific job requirement related to these characteristics In the application process, employers decide: o What must be done to apply. o Whether applications will be accepted. o The period of time for which applications will be accepted. o How long submitted applications will remain valid. Employers must retain: o Applications & related records for at least 1 year after a hiring decision is made o Records regarding people who were hired until a year after they leave employment o Data regarding the protected class characteristics of applicants for purposes of affirmative action and adverse impact Who is an applicant for a job? o The government’s definition of applicant is broad, and includes any person who indicates an interest in being considered o 1. Employers should not directly inquire about protected class characteristics o Examples: asking age, whether U.S. citizen o 2. Employers should not indirectly inquire about protected class characteristics o Examples: asking date of graduation, memberships, workers’ compensation claims filed o Tracking protected class characteristics for affirmative action purposes is allowed on a voluntary basis o 3. Employers should avoid questions about requirements or criteria that are not uniformly applied to job candidates o Examples: asking marital status, child-rearing plans o 4. Employers should avoid questions about requirements that have a high probability of producing adverse impact o Examples: questions about prior arrests, type of military discharge, height, weight o 5. Salary History Inquiries o Prohibited (or will be) in Delaware, Oregon, Massachusetts, New York, Philadelphia. Why?

Social media searches – risks? o find information that you wouldn’t ask in an interview: religion, health, politics!!! You learn someone supports Trump and were denied since they report him o 1 question on this!!!!!!! o Using social media may cause employers to become privy to the protected class information of job candidates o Public sector

o Fraud claims against employers (arising from the hiring process) – can’t remember if there’s a ?

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Intentionally misleading someone – employer lies to get someone to come work for them – RARE!!! – Don’t misstate benefits of the job Fraud: must be a knowingly false statement of a material present fact or a knowing, false promises about future facts (here, the statement about existing clients and the firm’s environmental practice) Lies to get employee to work for them, don’t misstate benefits After-acquired evidence : 1 question regarding this Terminates someone – sues b/c of discrimination but learn 4 months after, that they harass someone, if they knew back then, they would have fired them. Leaves impact on lawsuit. limits damage Common form of recovery is back pay – employer owes $$$ that they were out of work – after required evidence will cut it back until the evidence was discovered May limit the time period for back pay to the date the misbehavior (such as a false statement) was discovered by the employer

Ch. 5: Background Checks, References and Verifying Employment Eligibility  General justifications or reasons for performing background checks o Recall respondeat superior/vicarious liability – circumstances where the employer is responsible for the wrongdoing of their employees (limited to scope of employment) -- Under respondeat superior, employers are liable for the harm to others caused by their employees acting within the scope of employment: o The employee’s actions relate to the kind of work she was hired to perform o They take place substantially within the workplace during working hours o They serve, at least partially, the interests of the employer

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Potential harm to customers/clients – negligent hiring (where the employer knew or should have known that an applicant posed a risk)  Foreseeability of harm: given the applicant’s history and the duties of the potential job – harm was foreseeable or actual knowledge of some facts that raise concerns about whether the employee is unfit for the work  The careless or negligent hiring of an unfit employee may result in liability

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Note that negligent hiring can cover bad behavior that is outside the course and scope of employment but where the employment of the bad actor is the proximate cause of the harm

Background checks o References Collecting references – NO QUESTIONS o

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On the hook as employers for our employers if their acting in scope of employment

Criminal history  Arrests vs. convictions? (disparate impact) - Employers may inquire about convictions, but not arrests.  Was the crime related to potential job duties?  Was the conviction relatively recent or distant in time? o should this exclude people coming to work? NO, ¼ of us have history which limits people on hiring very common, low level misdeminors excludes MANY people – does the ciminla history combine with job duties associate with risks in workplace? Look at time that’s passed – question on this

Credit reports and the Fair Credit Reporting Act – in what circumstances does FCRA applu WHEN YOU HIRE A CREDIT REPORTING AGENCY TO SEARCH THE ACT – BUT NONE OF THIS WILL APPLY IF YOU DO IT YOURSELF o Consumer credit reports and investigative reports o Investigate: personal interview with someone you know – such as landlord o Need consent to obtain a credit report o Preliminary adverse action and final adverse action notifications, include Summary of Rights document o there’s a 2 step process (know steps) - send reults, they make inquireies, and after if you’re convinced then send a final letter (could say there was a mix-up, wrong info. Entered, or it wasn’t you)

 If the employer intends to take adverse action based on the results, it must: 1. Notify the person with a “pre-adverse action disclosure,” and 2. Give the person an opportunity to explain or refute the negative information  After taking an adverse action based on a credit report, the employer must give the person an “adverse action notice.”  CONSENT FORM NEEDS TO BE SIGNED – SEND PRIMLIMARY LETTER THAT HAS RESULTS, person gets the results and make inquiries b/c mistakes can be made  FCRA: does not limit the use of credit report information  But concern has grown about the use of this information for hiring, especially at a time when many Americans are encountering severe economic difficulties  Ten states now limit the use of credit reports in an employer’s hiring process EEOC has taken an interest in this issue

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Immigration Reform and Control Act – covers employment authorization for non-citizens and forbids discrimination based on national origin (like Title VII)  What do we have to do to get to permission to work in US o Form I-9 and verifying eligibility for employment o Provide specific kinds of identification – passport, SS card o I-9 must be completed within 3 days of start date o I-9 relies to verifying eligibility for employment

Ch.6: Employment Tests 2 questions on drug testing  Drug testing – in what circumstances? o Special concerns for government employers – 4 th Amendment requires limits drug testing to “reasonable” situations - Exam: be more cautious of random drug testing if you are a private sector b/c the 4 th amendment

 Random testing: highly regulated  More common: after accident – reasonable suspicion (smell, erratic behavior) o State laws may affect whether and how an employer can conduct drug tests 1) Related to the circumstan...