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209 Cards in this Set

  • Front
  • Back
Application Questions - Criminal History
The general rule of thumb is whether the criminal history relates to what the job requires.
Right to Terminate
For an at-will employee the general rule is that An employer has the right to hire/fire an employee and employee has a right to quit without any reason.
Bankruptcy Relevance
1) Collective Bargaining
2) Rights of Employees
Fair Labor Standards Act (FLSA) (Requires)
All non-exempt employees must
1) Be paid minimum wage
2) Overtime: Be paid time and a half for any work over 40 hours
3) Record keeping: there are record keeping requirements for the employers
Disparate Treatment (def)
This type of discrimination is when practices constitute deliberate differential or disparate treatment.
Workers Comp (def)
Requires that
- an employee
- gets reasonable compensation
- for workplace injuries
ERISA
- this is the primary federal law related to employee benefits
- enacted mainly to combat abuses in the administration and investment of private pensions
- Applies to other employer sponsored/employer provided benefits
- Does not require employers to provide pensions/other benefits, however if they do provide them there are certain minimum standards that need to be satisfied.
Types of OSHA claims (2)
1) General Duty Clause
2) Specific Standards (5a2)
Reasons for arbitration (6)
1) No Jury: This is good for employers because juries usually side with employees.
2) Confidentiality: Generally arbitration is confidential, which both parties like. However this is more work for judges, so they don’t like it. Also, judges don’t like to put things under seal, so it is available less and less. Instead judges just tell the parties to redact the file and don’t put it under seal.
3) Cost: Both sides like that it is cheaper.
4) Speed: Both sides like that it is fast, about twice as fast
5) Right to appeal: Generally there is no right to appeal, but it depends on the contract.
6) Fairness: Generally arbitrators are even handed because if they are not then they will not be hired.
Application Questions - Criminal History - Arrests
These are usually an issue, and generally are not allowed.
Exceptions to Right to Terminate (4)
1) Whistleblower exception
2) Breach Of Contract
3) Bad Faith
4) Public Policy
Bankruptcy Relevance - Collective Bargaining
Bankruptcy can allow companies to avoid, and allows them to renegotiate.
- This means that unions have limited leverage because the bankruptcy court can just impose a new agreement.
FLSA Covered Employees
The FLSA has the broadest definition of employee.
Disparate Treatment - Burdens of Proof
1) Employee has burden: to show prima facie case of racial discrimination.
2)Burden shifts to employer: to show a legitimate non-discriminatory reason for the rejection.
- Legitimate: Does not have to be good, just legitimate. Based on legitimacy of reason not the facts, so a good faith belief trumps facts.
3) Burden shifts back to Employee: To show that the reason was just pretext for discrimination.
Workers comp (employer gets)
o Quick remedy
o Simple remedy: no filing a law suit
o Broad coverage:
- All injuries
- Medical bills
o Strict liability
ERISA Covered plan types
1) Pension plans
2) Welfare benefit plans
General Duty Clause (def)
- Catch all.
- This says that if your safety does not reach a certain level of safety then you are liable.
- There is a “line” that signifies when you should have known better and fixed the problem. These are harder to prove because they are not enumerated
Federal Arbitration Act (FAA)
Says that courts have to affirm arbitration agreements if they are valid under the FAA.
- This means that suits that have an arbitration clause will be thrown out of court.
Application Questions - Criminal History - Conviction
- These are allowed more so than arrests.
- Muse be SIGNIFICANTLY RECENT and RELEVANT
Whistle Blower (Terminate exception) (3)
1) Employee engaged in activity protected by whistleblower statute
2) Employee was the subject of adverse employment action; AND
3) There is a causal link between the protected activity and the adverse employee action.
Bankruptcy Relevance - Rights of Employees
- What is owed currently:
Generally this is low on the priorities in bankruptcy, but is also not a huge issue because it will be a small amount since they employees are usually paid in short periods (weeks)

- What happens going forward:
If the interest of the creditors is to have the employer to continue to operate, then the court will make sure that the employees know that they are still going to get paid.
FLSA Covered Employees - Independent contractors
- not covered under FLSA. There is a totality of the circumstances test based on six factors used to determine if someone is an independent contractor.
Disparate Treatment Prima Facie Case (4)
1) They belong to a racial minority;
2) They applied and was qualified for a job for which the employer was seeking applicants;
3) Despite his qualifications he was rejected; AND
4) After rejection the position remained open and the employer continued to seek applicants from persons of complainants qualifications
Workers comp (employee gets)
o Predictable outcome
o Exclusive remedy (preempts tort claims with some exceptions)
Welfare Benefit Plans
broadly defined and include:
- medical, surgical, or hospital care of benefits;
- benefits in the event of sickness, accident, disability, death or unemployment;
- vacation benefits;
- apprenticeship or training programs;
- day care centers;
- scholarship funds;
- prepaid legal services, and
- other benefits
Specific Standards (5a2) (def)
- These are specific standards that have been set forth and must be met by an employer.
- Standards must be “reasonably necessary and appropriate to provide safe or healthful employment” which “most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity.”
Arbitration clause validity
Generally arbitration agreements are found to be arbitral, unless unconscionable.
- compulsory is ok
Application Questions - Criminal History - misdemeanors/felonies
o Felony: These can be relevant if they are a conviction.
o Misdemeanors: These are generally not relevant enough to be on an application.
Breach of Contract Exception (def + types) (2)
For there to be a breach of contract that takes the employment out of employment at will there has to be a contract.
1) Express written contract
2) Implied contract
Plant Closings
The courts will not force a company to stay in business and lose money.
FLSA Covered Employees - Independent contractors - Traditional factors
1) Degree of employer’s right to control the manner in which the work is performed: MOST IMPORTANT
2) The employee’s opportunity for profit or loss depending on his managerial skill
3) Employee’s investment in equipment or materials required for their task, or their employment of helpers
4) Whether the service renders requires a special skill: More specialized means more likely to be IC
5) The degree of permanence of the working relationship
6) Whether the service rendered is an integral part of the employer’s business.
Mixed motive discrimination (def)
(PWC v. Hopkins):
This is where there are legitimate and discriminatory reasons for an employer’s actions.
Workers comp (society gets)
o Enhanced ability for businesses to operate
o Employer has incentive to avoid accidents to keep experience rating, and this costs down
o Employer has less incentive to hide facts
§510 of ERISA (discrimination)
prohibits the discharge of an employee to prevent benefit accrual and discrimination against any beneficiary for:
1) asserting their rights under ERISA or
2) retaliating against an employee for exercising their rights under the statute.
OSHA and ICC
- Must have for OSHA to apply
- The employer’s business does not have to be engaged in interstate commerce, it only has to affect it.
- Burden: Very deferential standard.
1. There is substantial evidence
2. On the record as a whole
Arbitration clause Unconscionable (6)
Can’t be unconscionable, must meet standards of fairness. Matter of state law. Can’t treat arbitration contracts different than other contracts for unconscionability.

1) Taking away rights: arbitration is just a shifting of forum so you can’t take away their rights by shifting the forum. You can make changes but can’t take away rights.
2) Discovery limitations must be reasonable
3) Filing costs can’t be unreasonably high
4) Holding that employee can’t recover back pay.
5) Ok to give up right to appeal
6) Arbitration can be decided as the forum for discrimination cases.
EEOC and Arbitration agreements
EEOC can still litigate even if employee signs arbitration agreement because the agreement is between the employee and the employer not the EEOC.
Help Wanted Advertising
News Papers: Can’t have discriminatory help wanted ads (Pittsburgh Press case)

Websites: These are not subject to the same restrictions as a newspaper, and can post ads that contain legally impermissible criteria without being liable.
Implied Contract types (2)
1) Written
2) Conduct
Plant Closing exceptions (2)
1) Contracts With employees: If there is a contract that says a company will keep a plant open if the employees meet certain conditions (e.g. profitability).
2) Agreements With state: If a company agrees with the state to stay in exchange for tax abatements then they may be required to stay.
FLSA Covered Employees - Independent contractors - ECONOMIC REALITIES TEST
USED WHEN TRADITIONAL DOESN’T GIVE ANSWER. Is THE PERSON RUNNING THEIR OWN BUSINESS AND COMING IN TO WORK FOR THE BUSINESS FOR A LIMITED (NON-PERMENANT) BASIS.
Mixed motive discrimination Showing
1) Race, color, religion, sex, or national origin was a motivating factor - Must have some effect on the decision, does not have to be dispositive, just has to be a factor

2) Direct evidence is not required.
Exclusivity principle
Workers comp is the exclusive remedy when an employee is injured on the job. This is an extremely broad remedy and will apply unless
- Gross negligence (in most states)
- Willful wanton behavior by employer (Mandolidis v. Elkins)
§510 of ERISA (discrimination) - Showing
must show the employer acted with the intent to deprive the employee of health benefits.
Genearally requires:
1) Discharge shortly after notifying employer of disease
2) Failure to follow normal termination procedures
3) Incentive to avoid high medical costs
Specific Standards Reqs (3)
1) Feasible
2) Safe
3) Significant risk of material impairment of health or functional capacity
Class Action Arbitration
Employers don’t like because:
o No appeal
o Tendency to split the baby
o Creates a lifetime appointment for the arbitrator

-Does not occur unless the employer agrees to class action arbitrate. It is not enough that there is an arbitration clause, just because they agree to arbitration per employee does not mean that they agree to arbitrate in a class action setting.
Word of Mouth Hiring
- This type of hiring can be ok, and businesses shouldn’t be punished for being efficient.
- However it is not always ok, and it is based on the facts of the case.
- It is likely more ok for small businesses.
Implied Written Contract Types
i.Conditions
ii. With Cause
iii. Handbooks
iv. Annual Salary
v. Non-terminable
vi.“Just cause”
WARN Act (def)
Requires employers to give 60 days notice for mass layoffs
FLSA Covered Employees - Prisoners
Can be included under FLSA, but only if they are working for a private employer not under prison programs.
Mixed motive discrimination Levels of remedies (1)
1) Employer can demonstrate that absent the impermissible motivating factor
2) Employer cannot ate that absent the impermissible motivating factor
3) Employer acted with malice or reckless indifference
Dual Capacity Exception (def +req (2))
An employee can bring a claim outside of workers comp if the employer has a duty of care that arises independently of any employment relationship.
Must show there was an independent duty of care- That they were not injured in their capacity as an employee.
Turns on whether:
1) The employee was on or off the clock
2) Whether the business was open to the public
Title VII Health Benefit Claim (def)
- Used when discriminated against using benefits.
Specific Standards - Feasibility
Standard must be reasonable,
- should be what is feasible for a business or industry, not what is technically feasible or possible.
Class Action Arbitration Waiver
Recently the NLRB made a ruling that these were not ok because they are a prohibition by an employer on an employees concerted activity.
Hiring Halls
Where unions have contracts allowing them to operate an HH, the taft Hartley act says that there can be HH but they can’t discriminate against non-union members
Implied Written Contract - Conditions
- (Gordon v. Matthew Bender)
- Just because a contract has a condition does not mean that it is not a contract at will.
- Requiring “acceptable/satisfactory” performance does not take the contract out of at will.
WARN Act (applies) (2)
1) Certain size plant
2) Certain size of lay off: While an employer has to lay off a certain number of employees , if they try to avoid certain numbers by laying off in smaller batches, then they can still be liable under WARN.
FLSA Covered Employees - Undocumented workers
Can still be covered, or at least are not excluded because they are undocumented.
Mixed motive discrimination - remedies - Employer demonstrates disc factor irr.
the court may grant:
a. Declaratory relief
b. Certain types of injunctive relief
c. Partial attorney’s fees
d. NO DAMAGES
Workers Comp Reqs (3)
1) Injury
2) Injured party is an employee
3) Injury in course of employment
Title VII Health Benefit Claim Burdens (3)
1. Plaintiff has burden to show prima facie case
2. Burden shifts to the employer to show a legitimate non-discriminatory reason
3. Burden shifts to plaintiff to show proof of pretext – this is very hard do to show because you can usually find a legitimate reason to let the person go.
Specific Standards - Safe
The act does not require that the standard makes the workplace “risk free” only that it is safe.
Employee Polygraph Protection Act
Prohibits the use of polygraphs in employment.
Implied Written Contract - With Cause
- (Scribner v. World Com):
- These words take a contract out of the realm of at will, and mean that there has to be a reason “related to performance” for the discharge.
WARN Act Requirements (2)
1. 60 days notice
2. Back pay for any shorter notice
FLSA Covered Employees - Interns
For interns to be exempt the following six criteria are considered:
1) Training is similar to vocational school
2) Training is for the benefit of the trainee
3) Trainee doesn’t displace a regular employee, but works under close supervision
4) Employer does not derive any immediate advantage from the activities of the trainee, and the intern may even impede
5) Trainee is not necessarily entitled to a job after the training
6) Employer and trainee both understand that the trainee is not entitled to wages
Mixed motive discrimination - remedies - Emp can't show
Can get compensatory damages (capped at 300,000 in combination with punitive.)
Injury (workers comp)
There must be an injury that is related to employment.
Title VII Health Benefit Claim - Prima Facie Case
Disparate treatment:
• Employee was denied benefits that were afforded to other employees of a different class (pregnancy, marital status, gender, race, etc.)

Disparate Impact:
• Employee must show that the policy/practice was more burdensome in its application to one class of employees over another.
Specific Standards - Significant risk
OSHA must prove this.
o Does not have to show the exact mathematical probability
o Can err on the side of safety
o Can require a monitoring below whatever the level they set it at to gather evidence for revision
o Doesn’t have to be anything approaching a scientific certainty
o Can use conservative assumptions
Employee Polygraph Protection Act Exceptions
1) Does not apply to federal, state, or local government employees
2) Does not prohibit testing by the federal government of experts, consultants, or employees of federal contractors engaged in national security intelligence or counterintelligence.
3) Does not prohibit testing of employees who are reasonably suspected in a workplace incident that results in economic loss or injury to the employer’s business.
4) Does not prohibit the testing of some prospective employees of private armored car, security alarm, and security guard firms
5) Does not prohibit the testing of some current and prospective employees in firms authorized to manufacture, distribute, or dispense controlled substances.

Caveat: with the last three exemptions there are specific additional provisions, specifically that they cannot be asked about (1) religious beliefs, (2) racial beliefs, (3) political beliefs, (4) sexual behavior, or (5) union affiliations.
Implied Written Contract - Handbooks
(Woolley v. Hoffman):
Absent a clear and prominent disclaimer, an implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer.

- Employee must have a reasonable expectation in addition to the handbook.
- Unilateral contract: A handbook creates a unilateral contract. This means that the employer can change them as they see fit unless an employee reasonably relies on them.
- Notice: to make a change employer generally has to just post the handbook on the website. However, for big stuff you likely have to do more (send email, require to check box, etc.)
WARN Act Exception (def)
(Gross v. Hale-Halsell):
If the reason for the lay off is not reasonably foreseeable then they don’t have to give 60 days notice, but must still give notice as soon as possible (Arthur Anderson).
FLSA Exempt employee categories (5)
1) Executive
2) Professionals
3) Administrative
4) Outside Sales
5) Highly compensated
Mixed motive discrimination - remedies - Employer acted with malice or reckless indifference
Punitive damages are available capped at 300k
Mental Injury (workers comp)
There must be a rational connection between work the injury and the work/employment. i.e. there has to be some reasonable connection, not just one that a specific person freaks out about, between the injury and the work.
§510 of ERISA (discrimination) - Outsourcing
- The employer’s sole motivation must be to avoid paying for employees’ ERISA benefit plans.
- VERY HARD for employees to be successful with outsourcing claims (under §510) because it is relatively easy for employers to articulate a legitimate, nondiscriminatory reason for outsourcing.
- These claims are analyzed under the McDonnell Douglas Framework
Downstream warnings
When you create a product you have to provide info on the dangers of the product no matter how remote the downstream damages may be
Drug Free Workplace Act
- Applies to employers with federal contracts in excess of $25,000

- The employer must :
o Publish and distribute a policy prohibiting the unlawful manufacture, distribution, dispensing, possession, or use of controlled substances in the workplace
o Provide for penalties for employees convicted of drug related violations on the job
o Establish an employee awareness program on the dangers and penalties of workplace drug abuse, and the availiability of resources for drug rehabilitation and counseling

- If they don’t: they may have their federal contracts terminated, and be debarred from future contracts for up to five years.
Implied Written Contract - Annual Salary
Can create an employment for a term
WARN Act Exception - Reasonably foreseeable
whether it is reasonably foreseeable if you are going to have to engage in a mass lay off.

- Not at fault (TSA): If it is not an employer’s decision to lay off employees then they are not liable under WARN. E.g. when the government federalized airport security.
FLSA Executive exemption
- An employee must have the primary duty of managing the enterprise of a recognized department or subdivision.
- Must:
a. Have authority to hire and fire other employees or
b. Make recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees which must be given particular weight.
Pattern of practice of intentional discrimination (def)
this is a type of Disparate Treatment where there is a regular practice that discriminates as opposed to a specific instance
Preexisting Injury (workers comp)
Can have an impact on how much workers comp covers.
- In some cases the cost may have to be borne by the previous employer.
ERISA Preemption
- Gives BROAD preemption of “any and all state laws insofar as they may now or hereafter relate to any employee benefit plan”
General Duty Clause Requirements
1) Existence of a hazard
2) Recognition of a hazard
3) Serious physical harm:
4) Feasibility of abatement
5) Specific remedies
Negligent Hiring
For each employee hired you have to do a thorough investigation for relevant criminal history. Don’t have to foresee the precise injury, just have to make an investigation.
Implied Written Contract - Non-terminable
This means that you have to pay the person no matter what, even if you fire them for cause.
WARN Act Exception - Reasonably foreseeable - Government action
(Pena v American meat): Can be foreseeable
FLSA Professional exception categories (2)
1) Learned professional
2) Creative professional
Partnership decisions
Not exempt from title VII review
Types of causal injuries (workers comp) (3)
It is possible for one type of an injury to lead to another. Below are the possibilities listed from easiest to hardest to prove:
i. Physical leading to mental
ii. Mental leading to physical
iii. Mental leading to more mental
ERISA Preemption Exceptions (3)
1. State laws that regulate insurance, banking, or securities
2. Generally applicable criminal laws
3. Qualified domestic relations orders
General Duty Clause - Existence of a hazard (2)
Must show:
1) Actual or potential physical harm
2) A sufficient causal connection between the harm and the workplace
Implied Written Contract - “Just cause”
This only requires that there be an objective good faith belief/due diligence that there was reason to fire them. Whether there is actually good reason does not matter.
Unemployment Benefits (Funding)
both employers and employees pay into the pot to fund unemployment.
FLSA Professional exception - Learned professional
Employee’s work must
i. Require advanced knowledge: This cannot be attained at the high school level, and must be acquired by “prolonged course of specialized intellectual instruction.”
ii. Be predominately intellectual in nature
iii. Require consistent exercise of discretion and judgment instead of routine and manual work
Implicit Bias
There can be innate biases. Here INTERST COUNTS, and can be driven by discrimination, meaning that if you only hire males and that creates a lack of interest from another gender/group then that is not ok.
Employee (workers comp)
???? ADD AFTER RESPONSE FROM PROF
COBRA (applies to)
- Employers with 20 or more employees who offer health benefits
- Closely related corporations with the same ownership may be considered as a single employer
General Duty Clause - Serious physical harm
this has to be enough harm to prevent an employee from doing their job. Harm “likely to cause death or serious physical harm.”
Contract Implied from Conduct (def + factors) (6)
(See’s Candies Case):

Contract may be shown by the acts and conduct of parties, interpreted in the light of the subject matter and of the surrounding circumstances. The relevant factors are:
i. Duration of employment
ii. Commendations/promotions
iii. Lack of criticism
iv. Personnel policies or practices
v. Actions or communications by the employer reflecting assurances of continued employment
vi. Industry practices
Experience rating system
The amount that the employer has to pay is based on their employment rating.

- Not a true fault system: An employer’s exp rating will go up anytime they have an employee that leaves and is eligible for unemployment.
- This means that they don’t have to do something wrong for their rating to go up.
- This makes them want to push harder to show that their ex-employees are eligible.
FLSA Professional exception - Creative professional
The primary duties must require invention imagination, originality or talent in a recognized field of artistic endeavor.
Bona Fide Occupational Qualification(BFOQ)
This is when there is a required qualification for a given job.

Ex: there are no female prison guards.

- Race: No BFOQ for race cases
- Customer preference: Generally does not go towards BFOQ.
In course of employment (workers comp) - violation safety regulation (4)
An act will be considered outside of employment, barring workers comp, only if:
i. Employer informs the employee of the regulation
ii. Employee understands the regulation
iii. Employer didn’t knowingly accept benefit of a violation
iv. Injury is the result of the rule breaking
COBRA (Requires) (4)
Covered employers to
1) offer continued coverage to
2) former employees and qualified beneficiaries (including children born or adopted during the period of COBRA coverage).
3) When there is a qualifying event
4) Give notice
General Duty Clause - Feasibility of abatement
must show that feasible means exist to eliminate or materially reduce the hazard.
Bad Faith Termination Exception
Good faith and fair dealing is implied in every employment contract.
Unemployment Benefits (Requirements)
to receive unemployment an employee must show that their unemployment was involuntary: either
1) Quit with good cause
2) Fired without just cause
FLSA Administrative Exception
1) An employee’s primary duty must be the performance of office or non- manual work directly related to management policies or general business operations of the employer or the employer’s customers
2) Employee must exercise discretion and independent judgment with respect to matters of significance.
Sexual Favoritism
Not sex discrimination unless there is a pattern.
- Because it is not based on the belief that they are better workers.
Bunkhouse Rule
When an employer provides housing, then housing related injuries are covered by workers comp.
COBRA (term)
- must provide coverage for 18-36 months or until coverage begins under another plan.
General Duty Clause - Specific remedies
OSHC has to come forth with specific items that employers should have done which are feasible and utile.
Bad Faith Termination Exception - Factors (2)
(Cleary v. American Airlines):
o Longevity of employee’s service
o Expressed policy of the employer
Quit with good cause (2)
Eligible for unemployment benefits.
- Must show:
1) Good cause:
When the circumstances produce real and substantial pressure to that would compel a reasonable to terminate employment.
2) Attributable to the employer:
the conduct (action or inaction) of the employer must produce, cause, or create the conditions which render the job unsuitable.
Examples of Jobs that may meet FLSA Administrative Exception
i. Insurance claim adjusters
ii. Employees in the financial services industry
iii. Executive assistants to a business owner or senior executive of a large business
iv. Human resources managers
v. Purchasing agents
vi. buyers
Pregnancy Discrimination Act
????
COBRA (term) HIPPA Expansion
1) The 18 month max coverage is extended to 19 months if:
- at the time of the qualifying event, the beneficiary (employee or qualified beneficiary) was disabled.
- Also available if they become disabled within the first 60 days of the COBRA coverage
2) COBRA coverage may be terminated before 18 months if the qualified beneficiary becomes covered under another group health plan with no preexisting condition limitation or exclusion.
Bad Faith Termination Exception - Damages
no tort damages for GF/FD, only contract damages
Fired without just cause
Eligible for unemployment benefits.
- State types:
1. Just cause:
if the person is fired for just cause then they do not get unemployment.
2. Willful Misconduct:
There must be willful misconduct, not just just cause for the discharge. – “every justifiable discharge does not prevent someone from receiving unemployment benefits” (Pesce)

- Health risk: Generally if someone refuses to do something (fired/quit) because it would jeopardize their health or safety then they are eligible. However, violating a health/safety rule is enough to lose benefits
- Drug test: If not at work, then not work related and still eligible
Examples of Jobs that don't meet FLSA Administrative Exception
i. Employees that grade lumber
ii. Comparison shoppers
iii. Public sectors inspectors
DISPARATE IMPACT (def)
Where there is a facially neutral employment practice that has a disparate impact on groups of individuals protected by Title VII.
COBRA (qualifying event)
Triggers COBRA obligations and includes:
- Termination: For any reason other than “gross misconduct.” Term not defined in statute, but it does extend to a criminal assault off of the job (Zickafoose).
- Reduction of hours
Public policy Termination Exception (def + application) (4)
An at will employee possesses a tort action when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.

Applies:
1. Refuses to commit unlawful acts
2. Exercises statutory rights
3. Is performing a public function
4. Is reporting an employer’s unlawful conduct
Employment Benefits - Eligibility Standards
(Zambrano v Reinert):
Determined by the states
FLSA Outside Sales Exception
Must have the primary duty for making sales.
- Employee must be customarily and regularly engaged away from the employer’s place of business.
- Sales: Any sale, exchange, contract to sell, consignment for sales, shipment for sale or other disposition, including transfer of title to tangible property; or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer.
DISPARATE IMPACT Burdens
1) Plaintiff must show evidence for prima facie case that there is a statistical discrepancy showing that a neutral factor is causing the statistical disparity.
2) Burden shifts to the employer to show that the practice is justified as a business necessity (job relatedness)
3) Burden shifts back to the plaintiff to show an alternative practice that would serve the interest just as well without the discriminatory effect.
COBRA (offered coverage)
- must be identical to the coverage available to the beneficiary immediately before the qualifying event
- Employer may not deny COBRA continuation coverage under its health plan to an otherwise eligible beneficiary because he was covered under his wife’s plan at the time he elected COBRA coverage (Geissal v. Moore Med. Corp.)
Public policy Termination Exception - Employee discretion
(Arres v. IMI)
Employees are not just free to use their interpretation to create a PP exception.
- Employees “can pursue public policy, but they have to do it the right way.”
- Employee has to follow policies and procedures unless the company is explicitly violating a statute or public policy.
Employment Benefits - Administrative standards
These are how the benefits are paid.
- These are subject to the “when Due” clause of the social securities act.
FLSA highly compensated exception
make more than 100K a year.
DISPARATE IMPACT Prima Facie Case
Must show that there is a statistical discrepancy showing that a neutral factor is causing the statistical disparity.
COBRA (notice)
A plan adiministrator must notify ANY QUALIFIED BENEFICIARY of their right to continue health insurance up to 18 months after a qualifying event
Public policy Termination Exception - Heroic Conduct
(Gardner v. Loomis Armored)
There is a public policy in encouraging heroic conduct.
Compensable Time
(IBP v. Alvarez)
- Anything after the work day starts before the workday ends is compensable, including the time it takes to don and remove protective gear.
DISPARATE IMPACT AND STATISTICS
????
COBRA (notice) Burden
the burden of notice falls on the plan administrator not the qualified beneficiary
Public policy Termination Exception - Self Defense
(Murphy v American Home)
There is a public policy in self defense, but this can be rebutted if the employer can show legitimate business purpose for the policy.
Pay Difference
(Wernsing case)
As long as there is a reason that is not discriminatory, then it doesn’t have to be a good difference for a pay difference.
Discrimination Damages Types (3)
1) Back Pay
2) Compensatory Damages
3) Punitive Damages
COBRA (notice) Requirements
Satisfied if:
o Post office clerk verifies that notice was received and mailed (Hearst)
o Notice mailed to the address supplied by the employee on the benefits enrollment form
Not satisfied if:
o Notice letter generated (not sufficient if this is the sole evidence of notice satisfaction)
Public policy Termination Exception - Federal Safety Regulations
(Mehlman v Mobil)
Federal safety regulations satisfy the statute requirement for PP.
Discrimination Damages Cap
There is a sliding scale of capped combined punitive and compensatory damages based on how big the employer is. It is capped at the high end at 300k.
HIPPA (Applies to)
1) Employer based group health care plans (ERISA qualified,
2) self-insured, employee welfare plans) and
3) commercially issued employment based group health insurance.
Public policy Termination Exception - Patient Safety
No PP for this
Discrimination Compensatory damages
Include
o Damages to future employability
o Emotional distress damages: These are typically the compensatory damages. Now they are key.
HIPPA (Effects) (2)
1) Curtails use of exclusions to preexisting conditions
2) Privacy Rule
Discharge Preemption (def)
- Only preempted where there is a cause under the statute that is doing the preempting.
- It is not enough to say there is a federal law, the federal law has to give you a way to get a remedy.
Discrimination Back Pay Damages
- Always available
- This was not imported by CRA, and are an equitable remedy.
- Uncapped
HIPPA Preexisting Condition Exclusion
- Insurers and employers may apply a one-time, maximum 12-month exclusion for illnesses that were diagnosed prior to enrollment, but individuals must be given credit for time they were not covered under the plan.
- Someone who changes jobs is eligible immediately for health care benefits
- NO EXCLUSONS for pregnancy, newborns, or adopted children
- No exclusions for genetic predispositions
Discharge Preemption - Collective Bargaining
(Lingle v Norge)
State law will only be preempted if application of state law requires INTERPRETATION of a collective bargaining agreement.
- Just referring to it doesn’t count.
Discrimination Punitive damages Damages
Only available when there is malice or reckless indifference.
- Capped at 300k combined with compensatory
HIPPA Preexisting Condition Denial (4)
Prohibits group health plans and health insurers connected with group health plans from using an individual’s health history or risk factors in denying eligibility or setting individual premiums
- No discrimination based on health status in their eligibility or premium contributions
- Individuals cannot be charged higher premiums than others who are “similarly situated” e.g. full-time/part-time status or geographic location
- IF an insurer issues group health plans to small employer market they must accept all applying small employers and all eligible employees.
- No discrimination because of an individual’s participation in risky activities (such as motorcycling or skiing) but MAY exclude coverage for conditions resulting from risky activities
Discharge Preemption - Whistle blower
A common law claim is not precluded by federal whistleblower claim on the same facts.
- This means that the same facts can create multiple causes of action.
Discrimination RETALIATION (def)
- An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.
- The courts give a wide berth for this because they really don’t like retaliation.
HIPPA Privacy
Regulates the electronic transfer of health claims information.

Applies to: Three classes of entities
• Health providers
• Health plans
• Health clearinghouses

Employers: Are not covered but since the benefir plans are, they are required to build a “fire wall” between employee health benefit information and other employment records.
Discharge Preemption - Common Law claims
(Wilson v Monarch)
- Federal law will not preempt a state common law tort claim as long as the actions the claim is based on rises beyond the employment law claim to become a common law claim (IEED, Invasion of Privacy, etc.)
Discrimination RETALIATION elements
1) Action by the employee (opposition or filing a claim)
2) Employer action
Family Medical Leave Act (FMLA)
Employees get up to 12 weeks of unpaid leave in a 12 month period for childbirth, adoption, or serious health condition of the employee or some relative of the employee IF the employee is the one providing the care
IEED (def + applies) (3)
Has to rise to the level of outrageous conduct, outside of normal wrongful termination. Applies when:
1. Abuse of a relation or position which gives employer power to damage the plaintiff’s interest
2. Knows the plaintiff is susceptible to injuries through mental distress; or
3. Acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.
Retaliation (employer action)
Only has to be “materially adverse” enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”
- Does not have to be an "adverse action"
FMLA Reqs (2+)
1) Employee is providing the care
2) Worked for 12 months and more than 1250 hours: Employee is a full or 75% timer.

- Caveat: Employer can make you take your paid benefit time first
IEED and Employment at Will
No IIED here because of discharge itself, has to be because of MANNER OF DISCHARGE.
Opposition clause
- This covers the same as the participation clause, except you only have to show that you opposed discrimination in some way (take some action).
- Do not have to file a claim with the EEOC.
FMLA Effect (2)
Employee gets
1) Up to 12 weeks unpaid leave in a 12 month period
2) Employee gets exact or comparable job when they come back
After acquired evidence rule
If an employer finds a legitimate reason for firing an employee after they fired them for discrimination, then it can reduce the damages the employee can get.
PARTICIPATION clause
- For the retaliation clause to be in effect the discrimination claim must be alleged with the EEOC.
- Must be in participation in the investigation under the clause.
FMLA Penalties (2)
1) Lost wages plus liquidated damages (usually double)
2) Attorney’s fees.
Age discrimination:
- Analyzed differently than title VII because of the difference in statutory language.
- This is because there is a defense that if they can show a reasonable factor other than age (RFOA) which makes it easier to win a disparate impact case for age discrimination.
Patient Protection and Affordable Health Care Act of 2010 (PPACA)
Puts requirements on Employers, individuals and the state to have minimum health insurance coverage.
Reasonable factor other than age (RFOA)
- Defense to age discrimination.
- If there is a reasonable factor other than age then it will be ok to discriminate.
- Not a hard burden to meet.
PPACA Employer responsibilities
Employers are not required to provide coverage
- however, beginning in 2014m certain large employers that do not offer essential health benefits that is affordable to their employees will be penalized.
PPACA Employer responsibilities - Penalty
$2000 for each year (or $166.67 for each month) multiplied by the number of full-time employees
- the first 30 employees do not count towards the penalty
PPACA Employer responsibilities - Essential Health Benefits
includes:
- Ambulatory patient services;
- Emergency services;
- Hospitalization;
- Maternity and newborn care
- Mental health and substance use disorder services, including behavioral health treatment
- Prescription drugs
- Rehabilitative and habilitative services and devices;
- Laboratory services;
- Preventative wellness services and chronic disease management; and
- Pediatric services
PPACA Employer responsibilities - Affordable
Premium of the plan must
1) cost less than 9.5% of the employee’s household income and
2) must provide a minimum value of at least 60% of the coverage.
PPACA Employer responsibilities - Automatic Enrollment
Larger employers (those with more than 200-full time employees) who offer group health plans must
1) automatically enroll new full-time employees in a health benefits plan (and to continue enrollment of current employees)

Notice: Must give notice to the employees of the automatic enrollment with the option to op out. If employees do not want coverage they must affirmatively opt out of the program
PPACA Employer responsibilities - Free Choice Vouchers
Employers that offer benefits to qualified employees must offer a “free choice voucher” that can be used to purchase a qualified health plan on the state health exchange in lieu of receiving coverage through the employer-sponsored plan.
PPACA Employer responsibilities - Lifetime and Annual Limits
Beginning in 2014 prohibited all together.
PPACA Employer responsibilities - Rescissions
Can recind coverage for enrollees once they are covered.

Unless the current enrollee has
1) committed fraud or
2) made an intentional misrep of material fact as prohibited by the terms of the plan or coverage.
PPACA Employer responsibilities - Exemption
1) Large employers
2) with seasonal workers and

1) large employers
2) with over 50-full time workers for 120 days or less out of the calendar year, and
3) the employees in excess of the 50 employees during that 120-day period are seasonal workers
PPACA Individual responsibilities
indvls will be required to maintain minimal essential health care coverage.
PPACA Individual responsibilities - Penalty
Could be either percentage of household income or flat $ amount.
PPACA Individual responsibilities - Exceptions (4)
1) Those who object to health care coverage on religious grounds
2) Those not lawfully present in the United States
3) Those who are incarcerated
4) Low income individuals who cannot afford coverage
PPACA Individual responsibilities - Low income individuals who cannot afford coverage Exception (4)
1) Individuals whose required contribution for coverage would exceed 8% of household income for the taxable year, and
2) individuals whose income is less than 100% of the federal poverty line,
3) members of Indian tribes, and
4) individuals who suffer hardship
PPACA State Responsibilities
Must establish State Health Exchange
Defined Contribution Plans (Def)
This is where employee (and maybe employer) make contributions to the plan and then they are invested.
Defined Contribution Plans (Duties) - Owed to
- The plan administrator owes a duty to the individual employees, and their accounts.
- So an employee can sue for effects to their account alone.
Parties in Interest
These are anyone who have an interest in the plan (e.g. professional service providers, plan beneficiaries, etc.).
- They are not liable for plan losses.
Defined Contribution Plans (Duties) - Owed by
Owed by Fiduciaries of the plan.
- Corporation: Not fiduciaries unless they are names as the administrator
- Officers: Not fiduciaries unless
1) officially designated as an administrator AND
2) officially given individual discretion.
Defined Contribution Plans (Duties) - Duty Owed
- Exclusive beneficiary Rule :
Fiduciaries have to make decisions only with an eye to the beneficiaries of the plan
- Deference (arb &cap) (Firestone):
Absent a breach of loyalty, fiduciaries’ actions will be upheld as long as they are not arbitrary and capricious.
Exclusive beneficiary Rule
Fiduciaries have to make decisions only with an eye to the beneficiaries of the plan
Defined Contribution Plans (Duties) - Duty Owed - Co-fiduciary (3)
fiduciary can be liable of a breach by a co-fiduciary if she:
1. Knowingly participates in or conceals the breach
2. Enables the co-fiduciaries breach by her own breach; OR
3. Has knowledge of the co’s breach and does not make reasonable efforts to remedy it
Defined Benefit Plans (Duties) - Duty Owed
- Exclusive beneficiary Rule :
Fiduciaries have to make decisions only with an eye to the beneficiaries of the plan
- Deference (arb &cap) (Firestone):
Absent a breach of loyalty, fiduciaries’ actions will be upheld as long as they are not arbitrary and capricious.
Defined Benefit Plans (Duties) - Owed by
Owed by Fiduciaries of the plan.
- Corporation: Not fiduciaries unless they are names as the administrator
- Officers: Not fiduciaries unless
1) officially designated as an administrator AND
2) officially given individual discretion.
Defined Benefit Plans (def)
This is where the benefits are defined regardless of the pay in
Defined Benefit Plans (duties) - owed to
Plan administrator only owes a duty to the plan as a whole, not to the individual accounts.
- So an employee can’t bring a suit based solely on their account, they have to allege an effect on the entire plan.
ADEA Retirement Discrimination - Early Retirement incentive plans (2)
Ok if
1) Not based solely on age:
Cannot make an incentive plan based on age alone (e.g. if you retire at a certain age you get more/less).
- However it can correlate (e.g. if you retire after a certain # of years of service)
2) Voluntary:
not voluntary if there is fraud, threats of termination, or other forms of coercion, or if under the circumstances a reasonable person would have concluded that there is no choice but to accept the offer.
ADEA Retirement Discrimination - Exception types (3)
1) Safe Harbor (ADEA §4(f)(2))
2) Waiver
3) Reasonable Factor Other than Age (RFOA)
ADEA Retirement Discrimination - Exception - Safe Harbor (ADEA §4(f)(2))
Can discriminate based on age as long as they are giving the same amount of $ even if the older employees get less benefits.
ADEA Retirement Discrimination - Exception - Waiver (4)
Can waive ADEA rights if:
1) Free and voluntary choice
2) 21 days to decide and 7 day rescission period
3) Understandable to a lay person
4) Recommends that they consult council
ADEA Retirement Discrimination - Exception - Reasonable Factor Other than Age (RFOA)
If there is a reasonable factor other than age then it will be ok to discriminate
ERISA Changes
Employers are generally free under ERISA to modify, or terminate welfare plans at any time for any reason.
ERISA Changes Exception types (3)
1) Estoppel
2) Breach of Fiduciary Duty
3) Vesting
ERISA Change Estoppel Exception (4)
Must show:
1) Knowing misrepresentation
2) that was made in writing
3) that employees reasonably relied on: If they are presented with information to the contrary in another document then their reliance is not reasonable.
4) To their detriment
ERISA Change Breach of Fiduciary Duty Exception
An employer only breaches its fiduciary duty by lying to the employees to induce them to surrender their benefits.
ERISA Change Vesting Exception
Once a right to a benefit has been vested it cannot be taken away uness the business ends.

- Ways to vest: A right will vest in one of two ways:
1) 100% after 5 years; OR
2) 20% each year starting the 3rd year.