Employment Law Obermeyer Exam 1

Federal, state, and local laws

Whether employees work for the government or private employer
whether they have union representation
the size of their employer

True

Constitutions, Statutes, Executive orders, Regulationsuidelines, Common Law

Unless the employee is under contract for a certain term, the employer can fire the employee at any time for any reason, or no reason at all, unless specifically prohibited by law

Nondiscrimination and equal employment opportunity
Freedom to engage in concerted Activity and collective bargaining
Terms and conditions of employment that meet minimum standards
protection of fundamental rights
compensation for certain types of harm

Public or private sector
union or nonunion
employer size
geographic location
Government contracts
industry and occupation

An employee who fails to bring charges because they were actively misled by their employer to pursue legal action in a timely manner

Each discriminatorily low paycheck is a separate violation that starts the limitations period anew

a common outcome of litigation

The burden of proof

Plaintiffs sue on behlaf of themselves or some larger group of persons and claim that their rights were violated in the same manner by the defendant

True

Generally enforceable & governed by Federal Arbitration ACT (FAA)

False

It involves a "take it or leave it" policy that is drafted by a more powerful party and unreasonably favors the more powerful party

The process of entering into the agreement was such that there was not an honest, informed bargain struck

The terms of the agreement are unjustifiably one-sided in favor of the employer, leaving the employee much worse off than if there was recourse to the courts

intended to punish the employer in cases of serious, intentional violations and to create an example to influence the behavior of others

A wide range of damages beyond loss of wages, including pain and suffering

Awarded for serious, intentional violations in amounts up to twice the actual damages incurred

Taxes paid by employer, Employment law is irrelevant if there is no employment relationship, Employee benefits

"An inidivual employed by an employer who performs work for someone else and receives pay in return"

Independent contractors, Agency temp workers, on-call workers

Looser, more flexible than standard employment, exists so long as a project or piece of work needs done, and "contingent" on immediate need for specific services

Focus on whether the individual is in business for herself and not dependent on a particular employer to engage in this line of work

Focus is on right of control - where, when, and how work gets done

Carved out app based delivery and ride share drivers from the ABC test to make them Independent contractors

Require they bring their own tools, materials, and equipment and pay their own business expenses
They hire their own assistants
Pay flat fee
Make clear they can work for others

Do not assign new projects without renewing agrrements
Do not have IC's do same work as core workforce
Provide no benefits or PTO

False

employed on a long-term basis
do the same work as regular employees
meet other legal criteria for establishing employee status.

Graduate teaching and research assistants are employees
Student athletes have the right to unionize
Primary beneficiary test: Is the student or the employer the main beneficiary of the learning experience

Yes, but they not protected by the National Labor relations act and are exmpted from coverage under wage and hour laws

They are treated the same as other employees
Allowed to pursue their legal claims but their remedies may be limited

Importance: 3 aspects of liability
Agency, Integrated enterprise, joint employers

employers are legally responsible for the actions of their employees

4 degrees
Interrelation between the operations of enttiies
Do they share common management
Centralized control of human resouces and other labor relations policies
Common owenership of financial control

Maintain employment relationships with some of the same employees

The extent to which they relate to the kind of work the employee was hired to perform
take place substantially within the workplace during work hours
serve (at least partially) the interests of the employer

False

Limitation or denial of employment opprotunity (adverse employment actions) based on or related to protected class characterisitcs of persons

where employers seek to identify, hire, and promote only members of underrepresented groups, skipping over opportunities for the majority group

An employment decision made on both discriminatory and lawful grounds.

Employer policies that have the effect of segregating certain groups into lower-paid and less-desirable jobs or limiting the advancement of such persons

Victims of harassment are subjected to inferior working conditions and sometimes lose employment opportunities because of their sex, race, or other protected class characteristic.

the employer readily admits to using protected class characteristics as a basis for making employment decisions but insists that there is a sound business reason for doing so.

employer claims a legit reason for the adverse employment action but it’s a cover-up for adiscriminatory move
NOT mixed motives because no legit reason actually exists

Punishing employees for seeking to assert their rights under antidiscrimination laws or assisting others in doing so.

by not removing obstacles to employment for persons whose disabilities or religious beliefs require such flexibility and when doing so would not impose “undue hardship” on the employer

Produce doccuments that annouce the job
Describe the job and its requirements
Tell applicants what they must do to apply

Does not express or imply a preference for some protected class group over another.

favoritism toward family members and other relatives.

Employers cannot request employment agencies to refer only employees with particular protected class characteristics,
They should not attempt to obtain through employment agencies information about protected class characteristics of referrals that it would be improper for them to obtain directly

Not per se (in fact) but can precede discrimination

If you have a racially undiverse workforce, people tend to associate with others who are like them and will lead to an undiverse applicant pool

Pay promised wages (including overtime pay when applicable)
Provide safe employment
Hire only persons with documentation of eligibility to work in the United States.

Identifying a pattern or practice of intentional discrimination
Discrimination affects the applicant pool in a way that makes the discrimination harder to detect
Statistical evidence requires comparison of applicant pool to relevant emploer labor market

Actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity

Courts order the implementation of action after finding wrongful discrimination
Employers voluntarily adopt action plans
Certain statutes require action

The Office of Federal Contract Compliance Programs (OFCCP)

A reasonable self-analysis - plan for each individual work location
a reasonable basis for concluding that action is appropriate - underutilization of protected class characteristic in relevant labor market
and reasonable actions. - measurable goals to improve utilization of protected classes

Specailty occupations that require bachelors degree or higher in that field - employers must attest that they have not displaced U.S. workers by hiring individuals with this visa

foreign nationals working temporarily - H-2A for agriculture and logging - H-2B for other industries

temporarily transfer staff from foreign facilities to operations in the U.S.
no cap on number
less restrictive than H-1B (no requirement to pay prevailing rate)

recruitment with false promises
indebtedness,
isolation
dependence on the employer
severe mistreatment

Employers are free to decide:
Whether application will be accepted form anyone
What must be done to apply
How long applications will be accepted
How long submitted applications will remain valid

at least one year

Do not directly or indirectly ask about protected class characteristics
Avoid questions about requirmenets or criteria that cannot be uniformly applied to all candiates
Avoid questions with high probability of proving disparate impact

ADA does not allow you to ask questions that may reveal a disability prior to a conditional offer
-Can ask if theyre capable of performing job
-Must have all similary employed employuees take the same medical exam
-Cannot use disability info to disqualify applicant if they can be accomodated

Most are illgeal because of wage fixing that breaches antitrust laws
Agreements between companies that they wont solicit employees, accept applications, or hire individuals from other franchises

Employers are directly liable for harm to to others caused by employees
acting within the scope of their employment

An employer has a general obligation not to hire an applicant it knows or should have known could harm a third party
The employer fails to perform a background check and the failure to do so leads to foreseeable harm

Individuals who are arrested are picked up for questioning and have not been convicted, which means found guilty of a crime

Felonies are serious crimes whcih imprisonment lasts over a year in a state and federal prison, while misdimeanors are punished by fine or imprisonment of up to 1 year in a county jail

they are unfit for the position and they may cause forseeable harm if hired for that position

They must disclose to the applicant that a report will be obtained, in its own disclosure and canidates are allowed to respond to the report

False statements that refelct badly on a person are communicated to the persons reputation - must be negative AND FALSE

You can’t claim someone hurt your reputation with your permission.

It’s legal protection for people who are doing their job or duty when they make a statement — even if what they said turns out to be false — as long as they were being honest and responsible.

When former employees have legal action pending against an employer, particular care should be taken to ensure that any references provided are no more negative than the facts warrant and do not urge that a candidate not be hired.

Requires verification of employment status - Prohibits discrimination on the basis of national origin in the verification process