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Employment Law
Dr. B's class Gonzaga University
77
Business
Undergraduate 4
05/08/2013

Additional Business Flashcards

 


 

Cards

Term
Agency Law
Definition
The actor, called the agent, acts on behalf of another party, the principal, under a specific duty to act only as authorized.
Term
Common Law
Definition
law made and applied by judges, based on precedent of prior cases
Term
Independent Contractor
Definition
a person contracted with a principal to perform a task according to her or his own methods.  He/she is not under the principal's control regarding the physical details of the work
Term
Employee
Definition
the ER has significant control over the employment conditions, but definitions of this kind of worker differs depending on the situation
Term
Vicarious Liability
Definition
The imposition of liablity on one party for the wrongs of another.  Liablity can extend from EE to ER if the EE is acting within the scope of employement at the time liability arises
Term
Tests to determine employement status
Definition
these include the common-law agency test, IRS 20 factor analysis, and the economic realities test
Term
Conditions for existence of an applicant
Definition

ER acted to fill a position, the individual followed standard procedures to submit information, and the indiviudal indicated an interest in the position

 

Term
Non-compete qualification quidelines
Definition
the agreement must protect a legitimate busn interest, ancillary to a legit busn relationship, provides a benefit to both parties, is reasonable in scope adn duration, and is not contrary to public interest
Term

inevitable disclosure

 

Definition

a court may prohibit a former EE from working for an ER's competitor if the ER can show the former EE will disclose a trade secret by virtue of his/her position

 

Term
at-will-employement
Definition
the relationship where no contractual obligation to remain in the relationship exists, and either party may terminate at any time, for any reason not prohibited by law (discrimination)
Term
prima facie case/burdens
Definition
presenting evidence that fits each requirement of a cause of action that falls on the plaintiff
Term
Public Policy
Definition
a legal concept that is intended to ensure that no individual lawfully does that which has a tendency to be injurious to the public or against the public good; undermined by anything that harms a sense of individual rights
Term
Implied contracts
Definition
contracts that are not expressed but instead are created by other words or conduct of the parties involved. Ex: employee handbook
Term
Explicit contract
Definition
terms and conditions of employment are directly communicated including an offer and acceptance by involved parties
Term
Constructive discharge
Definition
occurs when the EE is given no reasonable alternative but to end the employment relationship and is considered an involuntary act on the part of the EE.
Term
Disparate treatment
Definition
treating similarly situated EEs differently becaus of prohibited title VII factors
Term
BFOQ
Definition
permissible discrimination if legally necessary for an ERs particular business (only for gender, religion, and national origin)
Term
Disparate impact
Definition
deleterious effect ofa  facially neutral policy on a title VII group
Term
Four-fiths rule
Definition
the minority must do at least 80% as well as the majority on a screening device or a presumption of disparate impact arises and the device must be shown to be a legitimate business necessity
Term
back pay
Definition
money awarded for the time an employee was not working because of illegal discrimination
Term
Front pay
Definition
equitable remedy of money awarded to a claimant when reinstatement is not possible or feasable
Term
Retroactive seniority
Definition
seniority that dates back to the time the claimant was treated illegally
Term
make whole relief
Definition
attempt to put the claimant in a position he/she would have been in had there been no discriminatino
Term
compensatory damages
Definition
money awarded to compensate the injured party for direct losses
Term
Punitive damages
Definition
money over and above compensatory damages, imposed by the court to punish the defendant for willful acts and to act as a deterent. permitted when the ER's act was known to be malicious or done with reckless indifference
Term
Title VII
Definition

gender, religion, race, color, national origin

 

ER, unions, joint labor and management committees of 15+ EE adn government ERs must comply

Term
Timing of filing a claim under EEOC or 706
Definition

EEOC filed within 180 days; federal EEs must file within 45 days

 

706 agency filed within 300 days

Term
Reconstruction of Civil Rights Act
Definition

all african-americans born in the US are citizens ensuring them the right to make and enforce contracts

cannot deprive any person of life, liberty, or property without due process of law. Cannot deny someone their rights based on race

EEOC does not handle these claims, unlimited damages

Term
Negligent Hiring
Definition
Makes an ER liable when an EE causes harm that could have been avoided if the ER had conducted reasonable background checks
Term
Content validation
Definition
is a test reflective of what the EE needs to know, does it test everything evenly, and is it representative and fair of tasks needed on the job?
Term
Criterion validation
Definition
predictive validity; is good performance on this test linked to good performance on the job?
Term
Constructive validity
Definition
does the test measure what it claims to measure?
Term
Eligibility
Definition
test ER administers to ensure potential EE is capable and qualified to perform requirements of position
Term
ineligibility tests
Definition
drug tests, ext- tests that if failed make the potential EE ineligible to work
Term
Race discrimination
Definition
ancestry, physical characteristics, culture, perception, association, subgroup or “race plus”, “reverse” discrimination
Term
Color discrimination
Definition
color discrimination occurs when a person is discriminated against based on lightness, darkess, or other color characteristic of the person. Race and color overlap, but are not synonymous
Term
National Origin discrimination
Definition
treating someone less favorably because he/she comes from a particular place, because of his/her ethnicity or accent, or because it is believe he/she has a particular ethnic background.
Term
Prima facie burden for harassment based on race, color, or national origin
Definition

1) The victim belongs to a protected group

    2) The victim was subjected to unwelcome harassment

    3) The harassment was based on a protected characteristic

    4)The harassment affected a term, condition, or privilege of employment

    5) The victim’s employer knew or should have known of the harassment and failed to take prompt immediate action

Term
Quid pro quo
Definition
when ER requires some form of sexual activity as a condition of employment or benefits
Term
ADEA
Definition

The Age Discrimination in Employment Act (1967) was enacted to promote the employment of older people based on their ability rather than age, prohibiting arbitrary age discrimination. ADEA applies to people over 40 in both the private and public sectors, unions and employment agencies, and foreign ERs with 20 or more workers in the US.



2 types of discrimination exist:


disparate treatment and disparate impact.

Term
Making an ADEA prima facie case for disparate treatment
Definition

under the method of proof set down in McDonnell Douglas Corp v Green:

  • the EE is in the protected class

  • EE suffered adverse employment action

  • EE was doing the job well enough to meet the ER’s legitimate expectations (qualified for the position)

  • others not in the protected class were treated more favorably

Term
EEs prima facie case for disparate impact
Definition
  • a facially neutral policy or rule is imposed by an ER

  • it has a different effect on an older group of workers

  • no intent to discriminate is necessary

Term
RFOA
Definition

An ER can defend against a disparate impact case by using this


reasonable factors other than age



An ER can terminate EEs on the basis of seniority and economic concerns so long as the economic reasons do not serve to obscure the fact that age was the true determinant.

Term

Age discrimination can be proven even under a RIF (reduction in force) if the ER:

 

Definition
  • refuses to allow the discharged or demoted EE to bump others with less seniority

  • hires younger workers when the job becomes available after the EE was discharged or demoted at the prior salary of the older worker
Term
hostile environment under ADEA
Definition

The 6th circuit recognizes a cause of action under ADEA based on hostile environment age harassment thanks to Crawford v Medina General Hospital which established these prima facie requirements:

  • EE is 40 or older

  • EE was subjected to harassment based on age, either through words or action

  • the harassment had the effect of unreasonably interfering with the EE’s work performance and creating an objectively intimidating, hostile, or offensive work environment

  • there exists some basis for liability on the part of the ER

 

The 8th and 11th Circuits along with some district courts have applied this same theory

 

Term
Information to maintain for 3 years for each employee and applicant
Definition
Required to maintain name, address, date of birth, occupation, rate of pay, and compensation earned each week.
Term
Information to maintain for one year for all workers
Definition
    • job applications, resumes, or other employment inquiries in answer to ads or notices, plus records about failure or refusal to hire

    • record on promotion, demotion, transfer, selection for training, layoff, recall, or discharge

    • job orders given to agencies or unions for recruiting personnel for job openinings

    • test papers

    • results of physical exams that are considered in connection with any personnel action

    • ads or notices relating to job openings, promotions, training programs, or opportunities for overtime

Term
For an ER to prove an age BFOQ for age, these must happen
Definition
    • The age limit is reasonably necessary to the essence of the ER’s business; and either

    • All or substantially all of the individuals over that age are unable to perform the job’s requirements adequately; or

    • Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.

Term
Vocational Rehabilitation Act
Definition
  • protects against discrimination of public employees and employees of companies with federal contract.

    • Section 503 further extends the act to all business receiving federal aid.  Was insufficient in protecting private employees.



Any contractors with 50 or more employees or over $50,000 in contracts is required to institute an affirmative action plan promoting the hiring promotion of disabled worker

Term
Americans with Disabilities Act
Definition

extended protection against disability discrimination to private sector employees



In 1998 the ADA was found to be “insufficient and inadequate”.  Much of the criticism was due to the language of the legislation so in  2008 the ADAAA addressed problems with the ADA by broadening and clarifying language within the ADA

Term
disability
Definition
A physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such impairment; or being regarded as having such an impairment.
Term
Genetic Information Non-discrimination Act
Definition
  • GINA was passed in 2008 and prohibits employers with over 15 employees from requesting genetic testing and or using genetic information in employment actions

    • The act is extremely broad in order to cover family histories and several privacy provisions in order to protect the employee. 

Term
4th and 14th amendments
Definition
  • protect a government EE’s right to privacy in that the state may not restrict one’s rights unless it is justified.

  • Regulates the release of personal information about federal EEs by federal agencies.  Specifically, but for 11 stated exceptions, no federal agency may release information about an EE that contains the means for identifying that EE without the EE’s prior written consent.
Term
Electronic Communications Privacy Act
Definition
Prohibits interception of all forms of digital communications, including transmissions of text and digitalized images, in addition to voice communications on telephone. The law also prohibits unauthorized eavesdropping by all persons and businesses, not only the government.
Term
tort
Definition
a legal wrong, for which the law offers a remedy.
Term
Torts for privacy
Definition
  • publicating, or bringing to light, information
  • intrusion into seclusion (oral questions for condition of employment, providing other info, requiring annual medical exams, asking others for info, and going into private places belonging to EE)
  • public disclosure of private facts
  • publication in a false light
  • breach of contract for invading privacy
  • defamation
Term
Defamation
Definition
    • There were false and defamatory words concerning the EE,

    • Negligently or intentionally communicated to a third party without the EE’s consent (publication), and

Resulting harm to the EE defamed.

Term
NLRA
Definition
  • established the right of employees to form unions, to bargain collectively, and to strike
Term
Five unfair labor practices
Definition

 

    • interfere with, restrain, or coerce employees in the exercise of their rights
    • interfere with the formation of a labor organization
    • discriminate in the hiring or tenure of employment or discourage membership in a labor organization
    • retaliate for filing charges or testifying under the act
Term
Steps to form a union
Definition
  1. determine type of union: industrial or craft
  2. Determine issue or community of interests
  3. bargaining unit
  4. unionize by either sign a sufficient number of authorization cards, vote in a union during a union representation election, or NLRB orders ER to bargain with a union
  5. elect shop steward
Term
industrial union
Definition
organized across industry regardless of members job type
Term
craft union
Definition
organized by EE's craft or trade
Term
bargaining unit
Definition
group of employees in a workplace that have the legal right to bargain with employer
Term
shop steward
Definition
union member chosen as intermediary between union members and an employer
Term
NLRB
Definition
  • National Labor Relations Board

    • independent federal agency that enforces labor laws in the private sector

  • composed of five members

    • hear appeals from administrative law judge decision of the agency on issues of unfair labor practices and union elections.

Term
Federal Labor Relations Authority
Definition
  • Civil Service Reform Act of 1978 established the Federal Labor Relations Authority to administer federal sector labor law

  • agency is thought of as the federal counterpart to the private sector's NLRB

  • federal restrictions prevent federal union from conducting direct bargaining over wages and benefits and from striking

Term
FLSA
Definition

Fair Labor Standards Act: The act sets standards for the minimum age for workers, minimum wages they can make, and the rate at which they must be paid if they work over a certain amount of time during a workweek. This act prohibits pay differentials based solely on gender.


 

all ee’s of the business will be covered if the business is engaged in interstate commerce and meets a minimum gross annual income requirement of $500,000. This law applies to both full and part time ee’s.

 

Term
OSHA
Definition
attempts to ensure safe and healthful working conditions for all ee and to preserve the human resources of the US.
Term
NIOSH
Definition

National Institute for Occupational Safety and Health, the research arm of OSHA, which conducts research on workplace health and safety and makes recommendations to the secretary of labor that, if approved, may become the standards of conduct in a certain industry.

 

Term
General duty clause
Definition
It protects ees against hazards in the workplace where no other OSHA standard would address the condition.
Term
FMLA:
Definition

The act guarantees ee who have been on the job at least a year up to 12 weeks of unpaid leave per year for a birth, adoption, or care of sick children, spouses, or parents (or their own serious illness) and the same or an equivalent job upon their return.



er with 50 or more ee’s within a 75-mile radius. EE must have worked for their er at least one year and for at least 1,250 hours during the 12 months.

Term
ERISA
Definition

Employee Retirement Income Security Act


 

Designed to encourage cautious, careful mgmt of retirement funds by er’s who were receiving tax benefits for doing so. An er that offers welfare benefits or retirement plans to its ee is subject to certain requirements under it, which covers most private-sector ee benefit plans.


In general, it does not cover plans established or maintained by governmental entities or churches, nonresident aliens, or plans for independent contractors.

 

Term
Defined contribution
Definition
retirement plan where the benefits payable to a participant are based on the amount of contributions and earnings on such contributions.
Term
Defined benefit
Definition

retirement plan where the benefit payable to a participant is defined up front by a formula, the funding of which is determined actuarially.

 

Term
Fiduciary duty
Definition
  • loyalty - they must discharge their duties solely in the interests of plan participants

  • exclusive purpose - must make decisions with the exclusive purpose of providing benefits under the plan and defraying the reasonable expenses under the plan

  • prudence - must exercise the care and judgement one would expect from a prudent person pursuing similar objectives under the same circumstances

  • diversification - must invest plan assets in a diversified manner to avoid large losses

  • compliance with the plan documents - required to administer the plan in a manner that is consistent with the governing documents

 

Term
COBRA
Definition

The Consolidated Omnibus Budget Reconciliation Act of 1985 addresses the problem of an EE losing workplace health care coverage when the EE stopped working or switched jobs.


applies to a group of health care plans provided by ERs with 20 or more EEs in the previous calendar year, and gives participants and beneficiaries the right to maintain, at their own expense, coverage under their health plan that would be lost due to a change in circumstance such as termination or divorce.


It also requires ERs to extend EE health insurance coverage for up to 18 months up to 102% of the rates originally charged while the individual still worked for the ER if the EE is terminated or loses benefit coverage due to reduced hours.

Term
HIPAA
Definition

The Health Insurance Portability and Accountability Act is a federal law that amended ERISA in 1996 in order to promote standardization and efficiency in the health care industry.


It protects individuals from discrimination based on their health status by restricting exclusions from coverage on the basis of pre-existing medical conditions.  


created a uniform system of processing, retaining, and securing health care information by encouraging technology use, mandating standardization of health-related transactions, and promoting security precautions to maintain the privacy of health information.  


Fundamentally, it protects the privacy of individuals with respect to their health care data and the sharing of it.

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