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Safety and Health.......
Hospitality and Tourism
87
Law
Undergraduate 4
04/01/2008

Additional Law Flashcards

 


 

Cards

Term

Occupational Safety and Health Act

Agencies

Definition

OSHA

NIOSHA

OSHRC

Term

Occupational Safety Health Administration

Definition

OSHA

to prevent illness and injury

Term

National Institue for Occupational Safety & Health

Definition

NIOSHA

the research arm of OSHA- gives research assistance to OSHA

Term

Occupational Safety and Health Review Committee

Definition

OSHRC

OSHA review committee- involved in hearing contested violations

Term

Do the costs of an OSHA standard have to bear a reasonable relationship to their benefits?

Definition

NO! you must follow standard- if it's too exensive to implement- too bad!

Term

General Duty Clause

Definition

anyone who offers employment must furnish their employees a workplace that is free from recognized hazards that cause or likely to cause serious injury or death

Term

Does following a specific OSHA standard

guarantee an employer hasn’t violated

the general duty clause?

Definition

NO!

Term

What are OSHA’s

record keeping requirements?

Definition
1) OSHA Form 301 Injury and Illness Incident Report- this must be filled out for OSHA, state law, insurance (workers’ comp). anytime there is an accident where medical attn is needed.

2) Form 300 Log of Injury- keep a log of every incident- keep these logs for FIVE years

3) OSHA 300A Forms- must be posted every February, and must stay up for the entire year. All the accidents from 2007 must be summarized on this form for 2008.

Term

Under what circumstances can an employee refuse to perform an assigned task?

Definition

circumstances are very limited- task has possibility of serious injury or death – insufficient time to go to OSHA- you should try to get the employer to do something first

Term

OSHA Inspection Priority

Definition

#1 Ask for Identification

Term

What are the instances when an OSHA inspector won’t need a warrant to inspect a work place?

Definition

a) immediate danger

b) public can see what they want to inspect

Term

OSHA Citations and Penalties

Definition

1)

Term

Why was ERISA passed?

1974
Definition
Employee Retirement Income Secretary Act o Passed in response to numerous instances of pension fund mismanagement and abuse. o Retired employees had their pension benefits reduced or terminated because their pension plan had been inadequate funded or depleted through mismanagement
Term

What two types of employee benefit plans are covered under ERISA?

Definition
o Welfare plans: Provide participating employees and their beneficiaries with medical coverage, disability benefits, life insurance, vacation pay o Pension plans (main focus is pension plans) Guaranteed income for the rest of your life. Seeks to ensure all employees covered by pension plans receive the benefits due to them under the plans
Term

Are employers obligated to

provide pension plans for their employees?

Definition
o No, not under ERISA, however if a pension plan is offered, ERISA sets minimal standards and requirements that the pension plan must meet
Term

What is a "qualified" plan?

Definition
o Complying with ERISA standards. o As an employer, they get a tax break from any cost incurred is deducted from companies income. If an employer does not follow ERISA rules, you will be taxed
Term

What is a fiduciary?

What standard of care are they held to?

Definition
o Any person exercising discretionary authority or control respecting the management of the benefit plan, or disposition of plan assets o Someone who has power of attorney, entrusted to spend that persons money wisely and in their best interest o Someone who is entrusted with your assets and they will be cautious and careful on how they spend your money o Standard of Care pg 265: Must act with the care, skill, prudence, and diligence that a prudent person acting in a like a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. Basically, entrusting someone who will be careful and invest your money wisely
Term

What is the difference between a

DEFINED BENEFIT PLAN

and a DEFINED CONTRIBUTION PLAN?

Definition

The difference between the two is with a benefit plan, you are guaranteed to get the money

Term

What is the role of the PBGC?

Definition
Pension Benefit Guaranty Corporation o They collect a premium from employers offering such pensions to provide and insurance fund. o If an employer is unable to meet the payment requirements of a defined benefit plan, the PBGC will pay monthly benefits to the participating employees to a maximum monthly amount
Term

What does it mean to be vested in a plan?

Definition
Vesting means that a plan participant has gained a non-forfeitable right to some plan benefit
Term

What are the minimum participation requirements set by the IRC for a qualified retirement plan?

Definition
o You have to work there for at least a year o have to be at least 21
Term

A pension plan must satisfy one of two coverage tests.

What are these tests called?

Give an example of how a plan could satisfy each?

Definition
o Compensated: making less than 100 grand o Highly Compensated: making more than 100 grand o You can’t set up a plan where only highly compensated people
Term

What happens to an employee’s benefits in a qualified plan when they leave a company before they are fully vested?

Definition
Term

Give examples of two vesting schedules

that plans could adopt.

Definition
Term

How would the benefits of a plan be impacted

if it is integrated with social security?

Definition
Term

Why is it important for a pension plan to meet

its minimum funding standards?

Definition
Term

Who cannot be given preferential treatment

if a plan is to remain qualified?

Definition
Term

What is a summary plan description?

Definition
Term

Can an employer terminate a pension plan?

Definition
Term

Social Security- Original Passage

Definition

retirement income, survivors of deceased

workers, disability income

a. Original passage 1965- became a health insurance program

Term

SS- 1970 Amendments

Definition
Term

SS- 1980 bailouts

Definition
Term

SS- Bush Proposals 2005

Definition
Term

What is the early and normal retirement age?

Definition

early retirement: 62 for partial benefits

normal: 65 for full benefits

Term

Medicare- Who is eligible?

Definition

Hit 65, have 40 credits, you get Medicare
it’s not free- and you will pay more if you don’t have 40 credits

Term

Medicare-> Part A – Part D

Definition

Part A- hospitalization

Part B- doctor visits, outpatient- with deductibles

Part C-

Part D- began 2006, covers 75% of Drug Costs

Term

What is Medicaid?

Definition

Health insurance for poor people

Term

Workers’ Compensation

Definition

no fault insurance- employer IS liable

Term

What are the exemptions to employer defenses?

Definition
Term

What does it mean for an injury to be work related?

Definition
Term

Workers' Comp- What is the coverage?

Definition
Term

How are employer premiums figured?

Definition
Term

How is an experience rating determined?

Definition
Term

Unemployment Compensation

Definition
Term

Unemployment Comp-

How is an employer charged for this?

Definition
Term

Unemployment Comp-

What type of separations is the employer responsible for?

Definition

Involuntary- if somebody quits, have them put that in writing, signed and dated

Term

What is willful misconduct?

Definition

Willful disregard for the employer’s best interest

Term

When is a voluntary quit a constructive discharge?

Definition

When you create an environment to the person MUST quit [a forced quit]

Term

What is the employment at will doctrine?

Definition
Both the employee and the employer are free to unilaterally terminate the relationship at any time and for any legally permissible, or for no reason at all
o 80% of workers in US work under this doctrine
o There is no recourse that you can take, nothing the law can do
o Used in the 19th century
o This doctrine in its raw form holds that an employee who has not been hired for an express period of time (say a year) can be fired at any time for any reason, or for no reason at all.
o Now, state and federal laws have narrowed this sweeping doctrine in many ways
 NLRA forbids firing employees for engaging in protected concerted activities
 Title VII forbids discharge on the basis of race, color, gender, creed, or national origin
 ADEA protects older workers
 OSHA makes it illegal to fire an employee in retaliation for filing a safely complaint
Term

(Employment at Will Doctrine)

Are there any exceptions?

Definition
o 4 major exceptions:
 Whistle blowing: employee reporting an employer for calling out safety/health problems
 Abusive discharge: make things so intolerable, any reasonable person would quit
• Extreme and outrageous conduct by employer made to create emotional distress
 Express or implied guaranteed of continued employment
• Promising a job to an employee, NEVER EVER GUARANTEE AN EMPLOYEE A JOB, if you do, you can never make them an employee at will
 Implied covenant of good faith and fair dealing
• If an employer violate covenant of good faith and fair dealing
o They cannot say it had anything to do with a protected status (title VII, etc)
Term

How have employers reacted to the

employment at will doctrine?

Definition
o Take employment handbooks and “sanitize them” clean them up so there is no evidence of not being an employee at will. By working there, you are an employee at will
Term

Invasion of Privacy – when is this right protected and not protected in the workplace?

Definition
o Zero tolerance in the workplace,
o 4 distinct species of the tort of invasion of privacy have emerged over the years since Brandeis and Warren set the stage for the tort’s appearance:
 Intrusion upon plaintiff’s seclusion of solitude or into his or her private affairs
 Public disclosure of embarrassing private facts about the plaintiff
 Publicity, the effect of which is to place the plaintiff in a “false light” in public
 Appropriation of the plaintiff’s name of likeness, without his or her permission, to the pecuniary advantage of the defendant
Term

Email? Phone conversations? Lockers?

Handbags? Medical Records?

Definition
o Can an employer look in your purse? A private employer with a well written search policy can look in your stuff (purse, lockers…)
o Medical records: HIPPA: medical privacy
o Cameras: Not in bathrooms!
o Phone conversations: Can the boss listen in on your conversations: can monitor calls if its work related, but you have to stop listening when the conversation becomes personal
o Email: you bet they can! It’s their computer; anything in there is fair game!
Term

What is business defamation?

Definition
o False statement about a plaintiff, that is communicated to a third party that harms their reputation
Term

What is a qualified privilege?

Definition
o Give someone a performance evaluation and in that evaluation you say they are on the verge of losing their job. Who can they show that to? Their boss only, not other employees
Term

What are noncompete agreements?

Will courts uphold them?

Definition
o Asked to sign a noncompete agreement: says you won’t work for one of their competitor
o Can’t be unfair, can’t stop you from getting a job
o Common in news anchors
o Courts will generally favor them, if they’re written right
o You cannot reveal trade secrets; if they consider it confidential, you must too
o 3 things to be present in a noncompete:
 Reasonable to time
• Reasonable to geography
• Can’t be unfair
Term

I-9’s and IRCA

What are your responsibilities as an employer?

Definition
o About 12 million Illegal immigrants in the country today
 7.5 million are working, about 5% of the workforce
o #1 area that they are hired in is eating and drinking establishments (26,000 people), next is lodging
o Employer obligation: verify whether they are eligible to work in the US or not. I-9s are used for this.
o ICE: Immigration and customs enforcement: People coming into this country illegally who are terrorists
o ICE used to be mainly concerned with immigrants coming in who were criminals.
o Social security match: Once you hire a person, you can email the government the name, social security number of everyone you hire, and they will tell you if the names and numbers match.
Term

Negligent hiring and retention.

How can you avoid these liabilities?

Definition
o As an employer you could be guilty of negligent hiring if you hire an employee who intentionally commits a tort outside the scope of employment against a customer or public AND you should have known they were going to do it, cuz you hired them a/o kept them on
 As an employer you are responsible for your employees. If you know they have a violent past and keep them on anyway, you are liable if they do something
 Do CRIMINAL BACK CHECKS!
Term

What is the WARN act?

Definition
o Have to give a 60 day notice to your workers that you are going to close it down
o 2 ways to get around it: law won’t make you stay open if you physically can’t. employers offer employees incentive to stay until the end
Term

Can I polygraph an employee who’s

cash drawer is missing $100?

Definition
o Laws do not favor polygraph tests, because it’s a stress test, not a lie detector
Term

Federal Fair Labor Standards Act

  • passed by congress in 1938
  • Administered by the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor
  • local offices in Minneapolis and Madison

Definition

FLSA

Term

Rule of Thumb

Definition

When there is a conflict between

federal law and state law

always apply law most favorable to employee

Term

Overtime

Definition
  • must be paid for hours worked in
    excess of 40 hours per week
  • The rate is One and one-half of the
    employee’s regular rate of pay
  • No overtime is required for Holidays and Sundays
  • No overtime is required for more than 8 hours in a day
  • Each workweek must stand on its own
  • An employee cannot waive the right to receive overtime
  • There are additional exceptions, besides those that apply to minimum wage.
Term

Compensatory Time Off

Definition

  • Defined as giving employee time off in lieu of overtime
  • This is not available to private sector employers
  • Public employers may use it, but must give one and one-half hours of comp. time for every hour worked over 40 hours per week.
  • Term

    Overtime Exemptions

    Definition
    • There are a number of so called: “white collar”exemptions from overtime.
    • Executive
    • Administrative
    • Learned Professional
    • Creative Professional
    • Computer
    • Outside Sales
    Term

    Summary of Changes

    Definition

  • Guaranteed OT rate bumped from $22,100 to $23,660
  • No OT if over $100 K
  • Term

    Executive Exemption

    Definition

    Makes not less than $455 per week

    • Primary duty is management of the enterprise or a dept. of the same
    • Directs the work of two or more employees in doing so
    • Authority to hire or fire or recommend
    Term

    Administrative Exemption

    Definition
    • Primary duty consists of office or non-manual work directly related to management policies or general business operations
    • Work requires the exercise of discretion and independent judgment with respect to matters of significance
    • Paid a salary of at least $455b a week
    Term

    Learned Professional Exemption

    Definition

    • Besides salary test the employee must hold a position requiring knowledge of an advanced type in a field of science or learning customarily required by a prolonged course of specialized instruction and study
    • Examples: law, medicine, nursing accounting, engineering, architecture, teaching and pharmacy
    • Not exempt are paralegals,social workers and medical assistants
    Term

    Creative Professional Exemption

    Definition

    Besides salary test, primary duty of performing work requiring invention,imagination,originality or talent in a recognized field of artistic or creative endeavor

    Term

    Computer Professional Exemption

    Definition
    • Includes computer system analysts, computer programmers, software engineers and other similarly skilled workers
    • Application of system analysis techniques; design, test computer systems and programs; create operating systems or some combo
    Term

    Outside Sales

    Definition
    • Regularly engaged away from the place of business making sales or obtaining orders for service
    • Primary duty of making sales or obtaining orders for services
    • Inside sales are currently non - exempt
    Term

    Salary Basis Test

    Definition
  • Will payment of OT defeat exempt status?
  • May salary be reduced for sick leave?
  • Can leave banks be reduced for partial day absences?
  • Term

    Hours Worked

    Definition
    • Cannot accept “free labor”
    • The work of all non-exempt employees must be paid for
    • Cannot plead ignorance or look the other way;even if the employee “volunteers” their time
    • We are responsible for what occurs in our workplace
    Term

    Waiting time

    Definition

    if employee reports to work at scheduled time

    and is required to wait until work is ready,

    this waiting time is compensable

    Term

    Meal Periods

    Definition

    if completely relieved of duty for at least 30 minutes,

    not compensable

    Term

    Recordkeeping Requirements

    Definition
  • Display official federal and state minimum wage posters
  • For non-exempt employees who work regular hours have them turn in a weekly signed log indicating they worked regular hours or how they deviated from that
  • Keep payroll records for 3 years and earnings records for two years
  • Term

    Child Labor

    Definition
  • Display official federal and state minimum wage posters
  • For non-exempt employees who work regular hours have them turn in a weekly signed log indicating they worked regular hours or how they deviated from that
  • Keep payroll records for 3 years and earnings records for two years
  • Term

    Audits

    Definition
  • Employee complaints are a reason for an audit
  • Certain industries are targeted from time to time
  • If problem is limited to one or two employees, a phone conciliation is held
  • If the issue involves more employees but is fairly straightforward, the employer will be asked to conduct a self-audit
  • If the dept. conducts the audit this is a sign of more serious problems
  • Term

    Penalties

    Definition
  • Backpay can be assessed for two years or three years if the violations are deemed “willful”
  • Also, willful violations can result in a criminal proceeding by the department with fines up to $10,000 and/or imprisonment for up to 6 months
  • Term

    Tips

    Definition
  • If contacted by the department you have several choices
  • You can work with them on your own
  • Or have them work through your attorney
  • In either event CONTACT your attorney
  • You will need to cooperate with the department and give them access to both your records and your employees
  • Don’t be shocked at the level and amount of detail they will ask of you. Keep your cool!
  • Term

    OLD AGE, SURVIVORS, DISABILITY INSURANCE

    Definition

    OASDI

    • Amended Social Security in 1965
    • Provides:
      • Retirement Income
      • Survivors of Deceased Workers
      • Disability Income

    Term

    Why does OSHA show up?

    Definition

    1) imminent danger

    2) death at the work place

    3) complaint

    4) because a particular industry has a high incident of employee accident

    5) random search


    Term

    Defined Benefit Plan

    Definition

    A pension plan that ensures eligible employees and their beneficiaries a specified monthly income for life

    Term
    Accrued vacation
    Definition
    o If we terminate you, we do not have to get your 2 weeks’ vacation, because your actions were not in the best interest of the employer
    Term

    What is the rate for unemployment

    Definition

    Generally 50-67% of Earnings,

    based on highest base period quarter

    Maximum of 26 weeks

    Extended Benefits for Additional 13 weeks

    Term
    3 examples of employers who do NOT use AT WILL
    Definition
    o Public sector employees (government jobs)
    o Union member, you work under a union contract
    o Written employment contract (very few employees do, unless you are a professional athlete)
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