WGU C233- EMPLOYMENT LAW – Final Exam Compilation July 2023

WGU C233- EMPLOYMENT LAW – Final Exam Compilation July 2023 Identify the role of the National Labor Relations Board (NLRB). - - a federal agency given power to police against unfair labor practices and determine whether the union is sanctioned to represent the members. NLRB administers all provisions of the Wagner Act. Primary functions include: conducting union elections (make sure that they are ethically and legally conducted), investigating complaints by employers or unions through their investigations, issuing opinions on it findings and prosecuting violations in court. Remember NLRB investigates all unfair labor practices even in non-union environments. Investigating unfair labor practices connected with Social Media has been a recent focus for the NLRB. What is the National Labor Relations Act, also known as the Wagner Act of 1935? - - Pro-union law which: 1. Established the rights of workers to form unions, collective bargain, and to strike. 2. Protected union rights and prohibited employers from interfering, coercing or otherwise intruding on employees interested in the union 3. Established the National Labor Relations Board (NLRB)- Describe the Labor Management Relations Act (LMRA), also known as the Taft-Hartley Act, of 1947. - - Pro-employer law which: 1. Curbed unions overreaching or shift some of the power back to the employer; 2. Forbade Unions from using unfair labor practices, for example unions cannot coerce or discriminate against non-union members; 3. Outlawed the closed shop (shop that made union membership a condition of employment). Let employers take back the right to hire. 4. Prohibited wildcat strikes (those not authorized by the union); Further, the "right to work" provision was established, states that had right to work laws had to be honored. The state law prohibits employees to be required to join a union. Gives the employee the choice. Describe the major impacts of the Labor Management Reporting and Disclosure Act, also known as the Landrum-Griffin Act, of 1959. - - Increased power of Union Members by: 1. Unions had to give union members a bill of rights; 2. Unions required to hold elections every 3 years; 3. Unions had to submit annual financial reports to the department of labor, federal crime to embezzle or steal union funds. Also, union members could attend union meetings, vote and nominate people for union offices. Define the steps in the union organization process. - - 1. Union contacts employees or employees contact union. 2. Initial organizational meeting with union to gather employee support. 3. 30% of authorization (employee) signatures are required to move forward with unionization process. 4. Once 30% of signatures are gathered, a secret ballot election is administered by the NLRA. 5. If the vote is "yes" (51% majority), the NLRB certifies the union as the legal bargaining representative of the employees. Describe the collective bargaining process. - - Collective bargaining is the negotiations between the employer and the the union (on behalf of the workers) to form a new contract which governs the working relationship between the parties. Under the NLRA, both the union and the employer are required to bargain in good faith. The concept of good faith does not mandate agreement, but instead requires a mutual obligation of the parties to participate actively in negotiations, showing intent to find a basis for agreement. Workplace issues are divided into three categories: mandatory, permissive and illegal bargaining items. Compare unfair labor practices for management and labor. - - Management cannot: refuse to bargain with labor; coerce, interfere or intrude on employees' rights to become involved with unions; For unions, they must bargain in good faith. During strike activity, unions are prohibited from preventing persons who wish to work from entering the business, may not damage employer property, and may not picket other businesses that provide goods and services to the employer. Such a picket is called a secondary picket. Describe the following strategies to resolve labor disputes: Lockout - - the employer either shuts down business operations and prevents employees from coming to work or continues work but hires replacement employees Describe the following strategies to resolve labor disputes: Strikes - - a mass work stoppage; economic strikes (used to pressure management into conceding to compensation demands) and ULP strikes (employer committed ULP) are lawful. Wildcat strikes, in which employees stop work without the union's permission, are illegal. Describe the following strategies to resolve labor disputes: Mediation - - voluntary process, bringing a neutral third-party into a negotiation as a facilitator. It may or may not lead to an agreement between the parties Describe the following strategies to resolve labor disputes: Arbitration - - process agreed to by the parties in which, at its conclusion, a neutral third-party will impose a binding agreement on both parties Summarize worker eligibility and E-verify. - - E-verify is used to allow employer to determine eligibility of an employee to work in US. They have to submit form I-9 and have to submit it within 3 days and keep in their records. Contractors with $100,000 or more/or 120 days or longer from Federal government contracts must use e-verify. Other employers, optional. If e-verify gives non-confirmation, candidate has 8 days to respond. (employer has to wait out that 8 days) Explain negligent hiring. - - Negligent hiring is when an employer ignores a reputation or record of an applicant and still hires them for the job, and then something negative occurs. In a sense, the employer shares the blame in this situation. Explain a negligent referral. - - Negligent referral occurs when an employer who is providing untrue reference omitted dangerous or criminal behavior. Meaning by suggesting someone to do a job but not giving the person that is hiring the full background on the past employee's behavior, when harm occurred on the job, the referring employer was negligent. Explain negligent retention. - - Negligent retention is that the employer fails to terminate or remove an employee that poses a danger. Define the Fair Labor Standards Act (FLSA) and its main parts. - - FLSA established minimum wage, overtime pay, record keeping, and youth employment standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. For added detail: 1. Set overtime pay at 1.5 times the usual hourly wage for non-exempt employees for hours worked over 40 in a week 2. Defined exempt and non-exempt standards; general exemption is established by high degree of responsibility, supervises at least 1 person and uses judgment/decision-making in role 3. Child labor laws may restrict hours and times of day for work, varying by age and during/outside of school year Describe the Immigration Reform and Control Act (IRCA). - - IRCA preventing illegal employment of aliens to employers. Unlawful if have 4 or more employees to hire undocumented workers. Within 3 operational business days (72 hours) must verify eligible to work in the US Form I9. Prohibits discrimination in employment on the basis of national origin or citizenships Explain the rules associated with the Worker Adjustment Retraining Notification (WARN) Act. - - WARN rules is employers with over 100 employees has to give a detailed written advance notice of plant closing or mass layoff also 60 days prior to closing & prohibited to close before. Caution: the 100 employees could be laid off over a month or two if the employer is sneaky; this would still qualify as needing the 60 day WARN notice. Plants must be within 75 miles of each other. Explain the exceptions to the WARN Act. - - 3 separate exceptions: 1. natural disaster (flood, fire, tornado, etc) 2. faltering company (giving notice would decrease the chance of the company getting funding they are seeking to stay open) 3. unforeseeable business circumstances--sudden negative change such as cancellation of a major contract Describe the requirements placed upon employers by the Occupational Safety and Health Act (OSHA). - - Requirements include providing a workplace free from serious recognized hazards and complying with standards, rules and regulations issued under the OSH Act; making sure employees have and use safe tools and equipment and properly maintain this equipment; using color codes, posters, labels or signs to warn employees of potential hazards; keeping records of work-related injuries and illnesses. Report work-related fatality within 8 hours or one resulting in 3 or more people being hospitalized. Cannot retaliate against someone who reports unsafe conditions to OSHA. Describe the purpose of worker compensation protections. - - The purpose of worker compensation is to ensure that if an employee is injured or becomes ill on the job (and its work related) that their medical expenses are covered; may also include pay for time off, rehabilitation. This is a "no fault" law, meaning that if the injury, illness or death relates to employment, the employer assumes responsibility. Enacted and enforced by individual states. Describe the main points of the Family and Medical Leave Act (FMLA) [include reasons, length of time, defining a year] - - FMLA is to provide 12 weeks of unpaid leave for your serious health condition, for you as the care giver of a family member with a serious health condition, or if you added a child to the family (birthed, adopted, foster). For eligibility, employee must be on the job for 1 year and have 1250 hours worked. The 12 weeks can be taken at one time or intermittently throughout the year, according to need; the year may be a calendar year (January to December) or one year from the time the employee is certified for FMLA--the employer decides and should put into his FMLA policy. Unless a key employee, FMLA promises the same or similar job upon the employee's return. Documentation from doctor or psychiatrist is required. Differentiate between employee privacy in public and private employment - - Public employees-guarantees that employees have access to personnel files, a method to correct erroneous information in those files, and the power to prevent the release of any personal information. Private Employee-no constitutional protection against invasion of privacy, as no governmental action is involved. Therefore, private employers are governed by a smattering of federal and state laws governing specific activity and by common law torts. Analyze potential limitations to employee privacy. - - Employer cannot search an employee's private property (purse, car) unless there is a valid reason to do so. Since an employee's desk, company computer, work phone, even a locker exists and belongs to the company, these items should not be expected to be private. Email in the work computer is not considered private. Video camera surveillance is lawful (except in bathrooms, changing areas). Voices cannot be recorded without employee and customer knowledge and permission. If theft, drugs, violence, etc has occurred and an investigation is under way, business necessity may shift the limitations of privacy. Describe the Right to Privacy Act. - - Right to Privacy Act places a duty on the custodian of a federal employee's record to ensure privacy and accuracy of the records. This act regulates the amount and type of information gathered, how it is used, and where it is stored; written permission needed for release of information in most circumstances (aside from subpoena, for example). Describe the appropriate use of the Fair Credit Report Act (FCRA). - - Important to note that HR should use FCRA when it is appropriate and valid for the job position. 1. Candidate or employee must give written permission 2. if employer will take negative action (say no), must inform the candidate providing contact information for the credit report 3. candidate has right to refute the information 4. employer must be timely in decision after receiving proof For what reasons is an employer permitted to perform drug and alcohol testing? - - Employers can perform a drug or alcohol test pre hire, random testing of all employees at periodic intervals, testing only in cases of probable cause, and testing after accidents. What specific steps act as protections to an employers drug and alcohol testing practices? - - Include the drug and alcohol testing policy and procedures in the employee handbook, provided at orientation. Collect a written acknowledgment that the employee read and understood the handbook including the drug and alcohol testing procedures. It is wise to clarify consequences of refusing to take a test. Maintaining records of the randomness of drug testing throughout the year is critical. Training managers about the practices so that everyone is consistent is wise; remembering that alcohol abuse and addiction are covered under the ADA but drug use, abuse, addiction is not. These areas can get complicated. Describe the steps an HR professional would use to determine if a law applies to a workplace scenario. - - 1. Determine if the employer is covered by the law (# of employees, public or private employer, or situation) 2. Determine if the person(s) qualify under the law 3. Review policies and procedures in the employee handbook to determine that your actions align 4. You may confer with your supervisor or legal counsel to ensure there are no precedents set (inside your company and/or in recent case law) Describe the Americans with Disabilities Act (ADA). - - Employer Size: 15 or more employees Prohibits discrimination against any qualified person with a disability. "Qualified" relates to person having a disability or a record of disabling condition and that he/she can perform the essential functions of the job with or without a reasonable accommodation. Recommend action steps that comply with the Americans with Disabilities Act (ADA) for a given workplace scenario. - - HR has shared job description with essential functions. Person may ask for an accommodation or you may be aware that there is a potentially qualified person. Present person with ADA forms he can take to his doctor/psychiatrist. When forms complete, hold an interactive discussion regarding potential accommodations to perform essential functions. Discuss with administration/legal counsel if the requested accommodations are reasonable. Specifically, if reasonable, the job can be done with quality and timeliness, safely for the person with a disability, safely for other workers and without being a financial undue hardship. Document due diligence and keep documents in separate file from the employee's main file. [*Note: Employers do not have to hire a person with a disability if there is a better qualified/more suitable employee without a disability.] Describe Title VII of the Civil Rights Act of 1964. - - Employers covered: "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." The application of Title VII continues for a year after a firm reaches the critical mass of 15 employers, even if the number of employees in the next year falls below the minimum. Title VII also applies to federal, state and local government employers and employment agencies and labor unions. Prohibits discrimination in any tangible employment action based on race, national origin, color, sex and religion. It also established the EEOC. Describe the role of the Equal Employment Opportunity Commission (EEOC) and its impact on HR responsibilities. - - Role: enforces federal anti-discrimination statutes, and provides oversight for all federal equal opportunity standards in employment regulations. Impact: HR's responsibilities shifted to actively consider Employment Law in our policies, procedures and to that end, Title VII impacts our actions on a daily basis. Utilize information and resources they provide in order to craft your policies and in application to any claims received. Respond quickly and cautiously if an EEOC claim comes your way. Differentiate between disparate treatment and disparate impact employment discrimination. - - Disparate treatment is intentional discrimination against someone in a protected class, resulting in a negative and tangible employment action. Four prong test in hiring: 1. the employee belonged to protected class 2. He was qualified for the job 3. He was turned down, overlooked 4. employer continued to hire or hired someone of the opposite protected trait. Disparate impact, on the other hand, is an outcome that appears to be discriminatory against a group of people (one of the protected classes or a subset of one). It is not intentional, and motive matters in the law. It may not be unlawful but is a clue that HR needs to review its practices to determine if they need to be changed. Your text's definition of disparate impact: the employer's procedures, policies, or practices are "not job-related and consistent with a business necessity" and have the effect of creating an unnecessary obstacle to employment opportunity for a specific protected class. Name at least two examples of bona fide occupational qualifications (BFOQ). - - Hiring only women to work as waitresses at Hooters; hiring only men to work in a men's locker room at a gymnasium; hiring only Lutherans to teach at a Lutheran college What actions should a company take to prevent a reoccurrence of discrimination based on race, color, or national origin? - - 1. review policies and procedures established 2. update handbook if needed 3. train managers, making clear what cannot occur and how they should handle concerns, including inform HR 4. train staff (with signatures that training was attended), using examples of improper behavior and require immediate reporting 5. Ensure proper postings 6. consider how the company culture can be improved to increase inclusion, respect, sensitivity to differences (assess, design, implement) 7. Build inclusion/diversity into all levels of strategy and workplace performance 8. evaluate efforts When an employee makes a specific request regarding religious practices at work, how does an employer identify reasonable accommodations to provide the employee? - - Best practices: 1. have an interactive discussion with the employee, asking what accommodations he/she needs 2. discuss request with direct supervisor of employee if needed to understand impact on the department 3. discuss request with HR VP or Director/legal counsel to consider if undue hardship Name two examples of possible accommodations for religion. - - Splitting up the usual lunch hour into smaller sections of time to allow multiple prayer sessions throughout the day; if working on the weekend is required and Sunday is a religious day, allow the employee to work on Saturdays Explain reverse discrimination and its application. - - Unequal treatment of majority group members resulting from preferential employment policies designed to remedy earlier discrimination against minorities. Unlawful to have quotas or a broadly applied preference; lawful to provide narrow and tailored preference. Example: preference to black applicants for medical school (lawful) versus 16% of entrance into undergraduate school held for black applicants (unlawful) Some Caucasian and other minorities could call this preference "reverse" discrimination Describe the primary types of sexual harassment in employment. - - Quid pro quo (this for that): discriminatory situation in which an employee is asked to engage in/allow sexual activity in order to receive an advantage of some kind (raise, keep your job, promotion). Hostile work environment: harassment that is pervasive enough to make the workplace uncomfortable (psychologically or physically) enough to be distracting to the employee. Remember, the perspective of the victim is his/her reality; in court and EEOC, this may be subject to the "reasonable person test" Explain the fundamentals of discrimination based on gender. - - Four prong test: 1. employee is a member of the protected class 2. employee is qualified for the position 3. employee suffers an adverse employment action 4. person of opposite gender receives favorable action or employer continues to seek applicants. Unlawful to decide how someone should "act or look" based on gender (eg. women should wear make-up to be leaders; men should not be nurses). Gender plus discrimination: on top of gender, another characteristic is also part of the discrimination [eg. woman of child-bearing age, assume she can't stay late for projects; father of 8 children should be able to stay late as his wife is at home with the kids] Explain the fundamentals of discrimination based on age. - - Age Discrimination in Employment Act was established to prohibit discrimination against people over 40 years of age in any tangible employment action. 20 employees in the business for the employer to be covered. Discriminatory to choose someone under 40 versus someone over 40 merely because of age or assumptions based on age. May also apply if both individuals are over 40 but significantly separate in age [41 versus 56, for example]. See exceptions below. When an employee alleges an age discrimination claim, what defenses to the claim does an employer utilize? - - 1. age as a BFOQ for the position (usually safety related and factually known about "older" individuals 2. same actor defense: employee was hired, then fired...no discrimination; he/she was over 40 when hired, so age was not company's motivation 3. covered employee inadequately performing his/her job 4. RFOA--reasonable factor other than age: facially neutral policy has a negative effect on employees over 40 (legitimate business purpose). In reduction in force situations (RIF), having clear procedures, objective budgetary considerations and /or eliminating whole positions help protect the organization. The student identifies affirmative action in a given scenario. - - Affirmative action (and AA plans) are most likely in two situations: 1. the employer is being required to engage in AA in order to correct past wrongs/discrimination. In this case, AA was imposed upon the company and likely includes having an annual AA plan and reporting results at the end of the year. 2. the employer accepts federal dollars as part of a grant or contract. The Federal government then requires the employer to accept their AA statement and may include a plan and annual reporting for the life of the agreement. Protected groups in AA are as follows: women, people with disabilities, Veterans, Pacific Islanders, African Americans and Asians How do you differentiate between employee grievances (eg. Racial jokes, name calling/labeling) as they relate to race, color and national origin? - - Harassment is in the eye of the victim: how often, how severe, how threatening and how much impact did the jokes, etc. cause. As HR professionals, these situations have a "case by case" decision basis. One occurrence of something may be enough to pass the harassment mark; in other cases, hostile work environment grows over time. Would a reasonable person believe the conduct was sufficient to cause harm/distraction? Describe the functions of the U.S. Constitution as it relates to employment law. - - Statutory laws created by the "law of the land" in the United States. Laws must comply with the Constitution. Summarize the concept of common law. - - Common law refers to law created by judicial decision on a case by case basis. Describe the types of employer-employee relationships. - - An employee may work for a single employer; on the other hand, an integrated enterprise is one in which the operations of two or more employers are considered so intertwined that they can be considered a single employer for purposes of both federal statutory coverage and liability. Joint employer: two or more entities not engaged in an integrated exercise exert control over an employee, such that each entity may be considered an employer. Describe employee and independent contractor status. - - An employee works for another person or company for a wage or salary. In exchange, he/she is under both the protection of and is responsible to that employer to act in the best interest of the company. An independent contractor, on the other hand, maintains much of the control in his situation [control over hours scheduled, the process of the work; financially responsible for his own benefits, workers comp and unemployment; may work for multiple companies at one time; brings his own tools to the job]. There is a written contract that binds the contractor to the employer for a specific time and to complete a particular outcome, usually for a "bulk dollar amount". The IRS has a 20 point test for independent contractor status. Employers cannot treat employees like contractors, nor the opposite. The common law agency test and economics realities tests may also guide status. Differentiate between rights and responsibilities of employers and employees. - - Employer Rights: 1. Employees are on time and in attendance (unless ill, leave, etc) 2. Employees are working in the best interest of the employer's goals 3. Employees log hours accurately 4. Employees follow all laws, policies and procedures; including discrimination, harassment 5. Employees add to the health and safety of the workplace 6. Employees keep private the information that should be confidential (coworkers, company secrets, etc) 7. Right to remain a viable business (so undue hardship comes into play, WARN) 8. Right to compete with other companies. Employee Rights: 1. Safe and healthy workplace 2. Pay commensurate with job; paid on time and in legal way 3. Fair treatment 4. Privacy, limited 5. Resources needed to do the job 6. Workplace free of discrimination 7. Knowing where they stand (performance management) 8. Knowing what is expected (policies and procedures, job description, behavior) 9. Most employers, unemployment compensation and worker's compensation coverage. Describe the role of the employee handbook in a legal context. - - Established employer's policies and procedures. Employment at will—some employees have claimed that the handbook creates an "implied contract". It is recommended that there be a statement in the handbook that it is not a contract. Ask employees to sign that they had read and understood, agreeing to it. Second, the newest handbook is the one that "trumps" all others, regardless of which handbook was current when the employee joined the company. There is protection in noting that it is the employee's responsibility to keep an updated copy. If we don't follow our own handbook, it's no protection; follow procedures outlined. Progressive discipline, reserve right to jump steps (employee can claim, "hey, you didn't give me all these warnings and things"; some breaches by the employee should lead to immediate termination). Describe respondeat superior doctrine and the scope of employment. - - Respondeat superior: employer is only responsible for the employee's actions performed within the scope of employment. Scope of employment: related to the job description, foreseeable by the employer as part of the job [on work time? On work site? suggested by employer? not specifically forbidden] Potential example of how this can seem gray: If you have one work location, employer is not responsible for you during your commute. If you drive from one location to another during the workday, the travel between one and the other location is within the scope of employment. Bottom line: did the action serve the employer's interest? Define employment-at-will. - - Employer may terminate an employee at any time, for any legal reason. Employee may leave employment at any time, with or without notice. Three exceptions: implied contract; good faith and fair dealing; public purpose. Define the types of employment contracts. - - An explicit contract is an agreement in which the parties state exactly what they agree to do. An implied contract, on the other hand, is a legally binding agreement which is created, not through formal contract negotiation and documentation, but by the actions of the employer and the employee. An union contract is the agreement bargained between the union and management through collective bargaining. Describe employment-law-governing discharge practices that protect the employee. - - 1. Tort claims for wrongful termination 2. Constructive discharge: Employee files a claim stating that the situation in the workplace was so egregious that he/she was forced to quit. 3. See exceptions to employment at will. 4. If the employer has designed a step by step progressive discipline policy, the employee can reasonably expect the employer to follow it. Steps usually include coaching; verbal warning, written warning, final written warning, suspension, termination. [Recognize as an HR Professional, we are wise to comment in the policy that the employer reserves the right to choose the step in discipline that fits the breach.] 5. Retaliation against an employee who has filed a discrimination claim, workers compensation, ADA or other legal claim is not permitted by US Law. 6. Employers cannot choose to discharge a person for being in a protected class nor for being in a union. Describe the process of an EEOC discrimination claim. - - 1. complainant files charge 2. EEOC notifies employer of the claim 3. Employer responds to EEOC (wise to set forth facts regardless of planned next step) 4. Voluntary choices: mediation, settlement Involuntary choices: EEOC moves ahead with investigation 5. If investigation, EEOC will decide either case had merit or not. If not, case is dismissed. If so, conciliation will be attempted; if unsuccessful, employee can sue in court system.