Employment Law. Questions and answers. Rated A+

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Employment Law -☑☑ is a patchwork of federal, state, and local laws. Whether and how laws apply depends on: -☑☑ Whether employees work for the government or a private employer, whether they ... have union representation, and the size of their employer 5 sources of employment law -☑☑ Constitutions, Statutes, Executive Orders, Regulations, and Common Law Casias v. Wal-Mart Stores -☑☑ court rejected plaintiff's request for a new category of protected employees - those who use medical marijuana Substantive Rights -☑☑ Many people mistakenly believe that they cannot be fired as long as they are doing a good job, but this is not true. 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. Substantive Rights -☑☑ Freedom to Engage in Concerted Activity and Collective Bargaining Terms and Conditions of Employment that Meet Minimum Standards Ex: Fair Labor Standards Act Protection of Fundamental Rights Ex: privacy torts Compensation for Certain Types of Harm Ex: Employer defames employee Determining which laws apply -☑☑ Public Sector or Private Sector EmploymentUnionized or Nonunion Workplace Employer Size Calculated by the payroll method Geographic Location Government Contracts Industry and Occupation First employment legislation -☑☑ State workers' compensation laws to deal with severe problem of injured workers, 1930s, National Labor Relations Act (Most employment laws reflect the work of social movements.) Enforcement procedures -☑☑ exist for bringing and resolving claims. Lilly Ledbetter Fair Pay Act -☑☑ provides that each discriminatory low paycheck is a separate violation which starts the limitations period anew. Can a Lawsuit be Brought? -☑☑ 1)Suits may be brought in state or federal court. 2)If federal, the trial is held in the district court. 3)Many cases are dismissed by summary judgment. 4)The employee who is suing is the plaintiff. By Whom? -☑☑ 1)At trial, plaintiff bears the burden of proof. 2)Either party may appeal to the appeals court. 3)Rarely does a case appealed from the appeals court get to the U.S. Supreme Court; if accepted, the Supreme Court issues a writ of certiorari. 4)Consistency & stability are provided by stare decisis Is There an Administrative Prerequisite to a Lawsuit? -☑☑ Some employment laws require that a charge be filed with the EEOC or Department of Labor. The agency tries to reach conciliation with the parties. Failing that, the agency issues a right-to-sue letter.Mandatory arbitration agreements -☑☑ requiring employees to submit their employment disputes to arbitration (not mediation), rather than bring suit in court, are generally enforceable. Federal Arbitration Act (FAA) -☑☑ requires courts to enforce most written arbitration agreements. (But like other contracts, arbitration agreements are subject to contract defenses.) In some states, arbitration agreements will not be enforced if they are _________? -☑☑ "unconscionable" (both procedurally and substantively.) A contract is "procedurally unconscionable" if -☑☑ drafted by the party with greater bargaining power and presented on a "take it or leave it" basis without opportunity for negotiation or modification. A contract is "substantively unconscionable" if -☑☑ its terms are markedly unfair to the less powerful party, particularly by imposing limits and burdens on the less powerful party which are not shared by the other. Nino v. The Jewelry Exchange -☑☑ holding that arbitration agreement was unenforceable because it contained unconscionable terms, such as a five-day time period within which to complain, a requirement that each side bear its own legal costs, and method of selecting arbitrators that favored employer If your firm decides to use arbitration agreements, avoid provisions like these: -☑☑ No selection of a neutral arbitrator Employee pays excessive fees Remedies inferior to those granted by court No minimum discovery process Many restrictions placed on the employee, but few on the employer Employer reserves the right to change the agreement at any time If your firm decides to use mandatory arbitration agreements, make certain that: -☑☑ They are in writing.They clearly notify employees that they are waiving their right to sue. The employee understands the terms. The employee signs in writing to indicate acceptance of the agreement. Because employment decisions can have consequences months or years after the events, HR managers should be careful to document decisions and the reasons for them -☑☑ at the time they occur. EEOC remedies for violations may include: -☑☑ Attorneys' fees, Court orders, Back pay, Front pay, Reinstatement, Hiring, Liquidated damages, Compensatory damages, and Punitive damages Arbitration clauses in collective bargaining agreements (CBAs) do not -☑☑ bar those employees from going to court. Arbitration agreements do not -☑☑ prevent employees from bringing complaints to government agencies like the EEOC, which may bring suit. The Role of Managers in Legal Compliance is -☑☑ To recognize, analyze and deal effectively with employment law issues. To put in place sound policies and practices that PREVENT legal problems from arising in first place. To enforce compliance with established law and develop strategies for dealing with legal issues that are not clear. To know when to seek legal advice. Ways to determine if employment relationship exists -☑☑ Compliance with tax laws Social Security and Medicare taxes Workers' Compensation and Unemployment Insurance employee -☑☑ "An individual employed by an employer"Narayan v EGL, Inc. -☑☑ using hybrid test to conclude that there was an employment relationship between supply chain management company and its workers who provided freight pick up and delivery services Independent contractor -☑☑ provide tools, etc., and pays its own business expenses, hire its own assistants, should be paid a flat fee for the work. Long-term ICs; don't assign new projects without renewing the agreement, Don't have ICs doing same work as employees, Don't provide benefits, even time off, and may offer services to others right-of-control -☑☑ Most relevant issue is whether hiring party has authority to control where, when, and how the work gets done, even if the hiring party does not fully exercise its authority. hybrid test -☑☑ combining both Economic Realities Test and Common Law Test Temporary workers rule -☑☑ Employers must not arbitrarily exclude from the benefits of employment long-term temps, doing the same work as regular employees, who meet legal criteria of employees. NLRB's conflicting rulings -☑☑ Graduate students & teaching assistants at private universities are primarily students, not workers. Medical interns and residents are employees with the right to unionize. Grant-in-aid scholarship football players at Northwestern University are NOT employees with right to unionize. Glatt v Fox Searchlight Pictures -☑☑ holding that interns were improperly not classified as employees, because they provided immediate advantage to the company and their program was not uniquely educational Volunteers rule -☑☑ Whether benefits received by volunteers constitute "significant remuneration" or "inconsequential incidents of an otherwise gratuitous relationship", and some courts also consider other factors Employer -☑☑ status determines who will be held liable if an employee's rights are [Show More]

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