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201 Cards in this Set

  • Front
  • Back

What are the different tests to determine if someone is an employee?

1. Lauritzen/EconomicRealities – As a matter of economic reality, is the worker dependent on the business?


2. Reid/Right to Control– Who has the primary right to control the employee’s work and to what degree?


3. IRS (behavioral control, financial control, type of relationship)


4. Fedex/Entrepreneurial– Does the employee have significant opportunity for profit or loss?


Does the employer’s determination of whether or not someone if an employee matter?

No – courts will look at the circumstances.

What are other statuses someone can be other than an employee?

Intern/Trainee, Volunteer, Owner/Partner, Family, College Athletes

What are the DOL’s six factor test for concluding whether someone is a trainee/intern or an employee?

1. The training is similar to training in an educational environment.


2. The training is for the benefit of the trainee.


3. The trainee does not displace regular employees, but works under close supervision of existing employees.


4. The employer providing the training derives no immediate advantage from the trainee, and on occasion its operation may actually be impaired.


5. The trainee not entitled to job after.


6. The trainee not entitled to wages.

What is the main theme of the 2nd Circuit’s intern test?

Primary BeneficiaryTest (balancing test): Whether the tangible and intangible benefits provided to the intern are greater than the benefits provided by the intern to the employer.

Is there such thing as joint employment of the same employee at the same job?

Yes. Joint employers of a single workforce if they:


1. are both employers within the meaning of the common law, and



2. share or codetermine those matters governing the essential terms and conditions of employment, including hiring, firing, discipline, supervision, direction; schedule; seniority, overtime; etc.

Can private employers have volunteers?

No. You also can’t volunteer after hours (blogger who works from home, teacher who coaches).

Definition of at-will employment?

Unless contracted around, all employment is at will of either party without prior notice – for any reason/no reason.

What state has statutorily gotten rid of at-will employment?

Montana – 6-month probationary period, but after that only for good cause.

What is the rate-of-pay rule?

Minority rule that ties employment to the rate of pay. For example, if you are paid weekly, there is a presumption that a week's notice must be provided before termination. However, to get around this for yearly salaries, you would include a document that says this does not affect at-will employment.

What is an I-9?

Document required tobe kept on file by the employer for up to one year after the specific employee’s termination that affirms that the employer checked certain documents to confirm the applicant’s work authorization.

What is the difference between an H-1B and H-2B visa?

H-1B is for skilled workers and for long-term employment. The H-2B, however, is usually used for unskilled workers for temporary and season positions. The employer must be approved under the H-2B program.

What is e-verify?

Doesn’t replace the I-9, but it provides a check on an employee’s social security number to confirm work authorization. E-verify is mandatory for government contractors.

What does the IRCA prohibit and what is the standard of knowledge?

Prohibits hiring unauthorized workers. Constructive knowledge. Getting no match on e-verify is a presumption of constructive knowledge.

When can an employer prefer a U.S. citizen over a non-citizen in hiring?

Under the INA, when all else is equal and it is being used to break a tie.

What is the difference between the tort of negligent hiring and respondeat superior liability?

Negligent hiring imposes liability on the employer based on the employer’s failure in hiring the employee at all and is not based on the negligent or intentional acts of the employee that are at issue. While respondeat superior is a theory of liability that is based on the acts of the employee.

What are the elements of a claim for negligent hiring?

1. Employment relationship


2. Employee was unfit for hiring


a. Nature of the employment.


b. Risk of this individual doing this job posed to those with whom they would foreseeably associate during the course of employment.


i. In VA it must be a threat of physical harm.


3. Employer knew or should have known ofemployee’s unfitness.


4. Employee’s actions were the proximate cause of the plaintiff’s injuries.

Does VA recognize the torts of negligent training, supervision, or retention?

Only retention.

What does the EEOC recommend in regards to ability and aptitude testing in order to avoid disparate impact claims?

A validation study and that the test be job related and consistent with business necessity.

When during the hiring process can an employer request a medical exam? Address applicant, conditional offer, and employee phases.

1. Pre-offer: no medical exams; can ask if applicant can perform essential functions of job (exception for drug testing).


2. Post-offer: medical exam allowed if all in job category subjected to same; medical records separated as need to know; cannot withdraw offer unless goes to essential function.


3. Current employees: exams must be job related, consistent with business necessity; general health and wellness exams can be made voluntary.


4. Disabilities must be accommodated.

Can a private employer polygraph?

No, except in very specific circumstances under the Employee Polygraph Protection Act.

What are the ways an employer can lose a common law qualified privilege against defamation?

1. Actual malice.


2. Reckless disregard for the truth.


3. Excessive publication.

What is the self-publication doctrine?

It’s when the employee is let go based on a certain issue that the previous employer knows that employee will have to tell the new employer regarding his previous employment. For instance, place insubordination as the reason for termination, when this isn’t true.

Does VA have the self-publication doctrine?

No

What is the difference in liability, if any, between omitting information as a reference and making an affirmative misrepresentation?

Silence is fine. Affirmative misrepresentations are not.

What is the EEOC’s guidance on criminal background checks?

To avoid potential disparate impact claims, the EEOC recommends that employers not perform background checks until a conditional offer is made and to ensure that the check is job related and consistent with business necessity.

What is required under the Fair Credit Reporting Act?

1. Employer must notify of their intention to get the consumer report, and receive written permission to use a consumer report.


2. If adverse action is contemplated, a new notice outlining employee's rights must be provided and a copy of the report must be provided.


3. Employer must provide a way for the employee to respond and wait a reasonable amount of time for the employee to do so.

What are the protected classes under Title VII?

Race, sex/gender, national origin, religion.

What agency enforces Title VII?

EEOC

How many employees must an employer have to fall under Title VII?

15 or more during the previous 20 weeks/year.

Can an individual be held liable under Title VII?

No

What are the procedural requirements that must be met before a plaintiff can file suit under Title VII?

1. Employee has 180 days from the last unlawful action to file charge with EEOC, 300 days if they go through the state agency first.


2. The EEOC has 180 days to investigate and potentially perform mediation, then employee can request right-to-sue letter.


3. After receiving right-to-sue letter, employee has 90 days to file suit.

What are the remedies available under Title VII?

1. Backpay, reinstatement, injunctive relief, attorney’s fees.


2. Punitive damages are also available for malice or reckless indifference.


3. Front pay is rare.


4. The plaintiff has the duty to mitigate

What are the caps on damages?

≤100 = $50K; ≤ 200 = $100K; ≤ 500 = $200K; > 500 = $300K

What are the two theories of discrimination under Title VII?

Disparate treatment and disparate impact.

What is disparate treatment?

Intentional discrimination.

What is disparate impact?

Unintentional discrimination that is cause by a facially neutral policy that causes a disproportionate percentage of a specific protect class from being employed at that employer.

What is the burden shifting framework for disparate treatment?

McDonnel Douglas Framework:


1. Plaintiff establishes prima facie case: (1) Plaintiff is a member of a protect class. (2) Plaintiff was qualified for the job at issue. (3) Plaintiff did not receive job or suffered an adverse employment action. (4) The job remained open and applicants were being sought. (This element will change depending on unlawful practice claimed.)


2. Defendant shows legitimate non-discriminatory reason (LNDR).


3. Plaintiff then attempts to show that LNDR was merely pretext.

When is the McDonnell Douglas Framework used?

When there is no direct evidence of discrimination, only circumstantial.

What is the burden shifting framework for disparate impact?

1. Plaintiff shows a statistical disparity in the workforce. (4/5ths rule)


2. Defendant shows that the policy is job related and consistent with business necessity, usually via validation study.


3. Plaintiff shows that there was a better, less discriminatory alternative available.

How is mixed motives applied after the 1991 amendments?

1. Defendant is still liable if offending discrimination was a motivating factor.


2. Remedies only include: declaratory judgment, injunctive relief, and attorney’s fees. No money damages; no reinstatement.

What does BFOQ stand for?

Bona Fide Occupational Qualification

What protected category can never be a BFOQ under Title VII?

Race

What is the employer required to show when raising a BFOQ defense?

Reason for BFOQ:


1. must go to the essence of the business.


2. relate to the ability to do the job.


3. be reasonably necessary.


4. Also show no less restrictive alternative.

What is the Price Waterhouse theory of sex-stereotyping?

Discrimination based on sex-stereotyping or gender non-conformity is discrimination on the basis of sex in violation of Title VII.

What is the standard that applies to dress and grooming standards that differ between men and women at work?

You can have differing standards, but it must be an equal burden on both sexes.

Does the PDA provide additional rights?

No, only ensures equal rights.

Is the PDA a productive rights statute?

No, it only protects the status of being pregnant, not the conduct of protecting pregnancy rights.

Are abortion rights protected under the PDA?

Having an abortion is. Being a parent is not.

What does UPS v. Young require?

Employers must treat and accommodate pregnancy the same as they would another employee with a temporary injury received outside of work.

What is the EEOC’s definition of sexual harassment?

Unwelcome sexual advances, requests for sexual favors, and other physical or verbal conduct of a sexual nature constitutes sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating hostile or offensive work environment.

What are the three prongs for evaluating if conduct is sexual harassment?


1. Must be objectively offensive to the reasonable victim.


2. Must also be subjectively offensive to the actual victim.


3. Must be sufficiently severe or pervasive to alter a condition of employment.

What happens if a supervisor is the offender?

There is strict liability if there is a tangible job detriment.

What are the elements for the Farragher-Ellerth affirmative defense to employer liability?

1. Employer used reasonable care to prevent sexual harassment.


2. Employee failed to take advantage of the employer’s system.

What is the standard for coworker harassment and third-party harassment?

1. Employer is liable if it knew or should have known and failed to take reasonable action.

Is same sex harassment covered under Title VII?

Yes, no attraction needed.

What is the EEOC’s position on English-only policies at work?

They are presumed violation of Title VII. The policy must be related to specific circumstances of the industry and business necessity. (Job related and consistent with business necessity.)

What are the theories of discrimination typical of religious cases?

Disparate treatment and failure to accommodate. You can have disparate impact in theory.

What is the standard for religious accommodation?

Undue hardship. Low bar, any expense or burden will be enough.

What are the two unlawful basis for retaliation under Title VII?

Opposition and participation.

What must the plaintiff show to establish retaliation under Title VII?

There must be an adverse action that is materially adverse so as to persuade a reasonable person from making or supporting a discrimination claim.

What is needed in order to implement an affirmative action program?

1. In writing, not ad hoc.


2. Temporary; to attain, not maintain.


3. Used to remedy a manifest imbalance in a traditionally segregated job category.


4. Doesn’t exceed proportional representation in community.


5. Can’t discriminate against non-minorities.

Are any employers required to do affirmative action?

Not under Title VII, but an executive order requires government contractors to do affirmative action and OFCCP enforces the order.

What classes are protected under § 1981?

Only race.

What is the minimum number of employees the employer must have to fall under § 1981?

None

What is the maximum cap on damages under § 1981?

None

What agency enforces the ADA and what are the procedural requirements?

EEOC, like Title VII.

Who are protected under the ADA?

Those with a disability, regarded as having a disability, who have a record of a disability, or are associated with someone with a disability.

What is the definition of covered disability under the ADA?

A physical or mental impairment which substantially limits one or more major life activities.

What is the definition of qualified under the ADA?

The ability to perform the essential functions of the job with or without reasonable accommodation.

What is the rule of mitigating measures?

Under the ADAAA, mitigating measures are no longer considered when determining whether a person is disabled under the ADA. Corrective lenses are the only exception.

Are drug and alcohol abuse disabilities under the ADA?

Only if the person is in recovery, not if they are currently suffering from addiction or alcoholism.

What are the employer’s obligations to a disabled employee under the ADA?

Accommodating a disability is an interactive process. The employer need only provide reasonable accommodation unless there is an undue burden on the employer.

How were temporary disabilities handled prior to the ADAAA? After the ADAAA?

Before the amendment, none covered. After, the injury must be sufficiently severe.

What is the direct threat defense and how is it applied?

It’s an employer defense to accommodatingor hiring a person based on their disability if the work would be a direct threat to the health and safety of others, including the employee at issue. This is narrowly tailored to protect the employee.

How is misconduct handled under the ADA?

It's not covered.

What does the ADEA protect against?

Discrimination in employment based on age, beginning at 40.

How many employees must an employer have to fall under the ADEA?

20 or more within the last 20 weeks/year.

Does the ADEA apply if both people are in the protected class?

Yes, but the plaintiff must be substantially older.

What are a plaintiff’s remedies under the ADEA?

Front and back pay, injunction, attorney’s fees, and liquidated damages for willful violations.

What are the procedural requirements under the ADEA?

EEOC, like Title VII.

What is the role of a reasonable factor other than age in ADEA liability?

The reasonable factor other than age can ONLY be for safety reasons.

What is the Older Worker’s Benefits Protection Act?

The Act protects older employees when an employer wants the employee to execute a release of their rights under the ADEA in exchange for a severance.

What does the OWPA require?

It requires notice to the employee that he is giving up the right to sue under the ADEA. The employee must be told they have the right to consult a lawyer. The employee has 21 days to agree and 7 days to rescind.

What does the employer risk by not meeting OWPA’s requirements?

The waiver is void. In addition, the employee gets to keep the severance and can still sue. Employer may be able to argue unjust enrichment.

Who enforces the FMLA?

The DOL, but the employee can also sue immediately.

How many employees must an employer have to fall under the FMLA?

50 within a 75-mile radius.

How much must an employee have worked to qualify under the FMLA?

The employee must have worked for the employer for the previous 12 months and for at least 1250 hours in those 12 months.

What does FMLA cover?

Up to 12 weeks of unpaid leave for an employee due to an employee or their family member's serious health condition or the birth or adoption of their child. Leave can be taken intermittently.

How is serious health condition defined under the FMLA?

1. A serious physical or mental injury or impairment that requires continuing treatment or care from a medical provider.


2. DOL: 3 or more days of incapacitation and 2 or more visits to the doctor.

Upon returning to work, what job does the employee return to under FMLA?

The same or equivalent position as what they left, unless undue hardship on the employer.

What is the maximum amount of cumulative leave an employee can take over their lifetime with one employer under the FMLA?

There is no maximum cumulative leave, but the employer is only required to provide 12 weeks each year.

How many weeks do service members get?

26 weeks if injured in service.

Is the employer entitled to medical certification?

Yes, they can even request 2nd and 3rd opinions at their own expense.

What are the available remedies under the FMLA?

Back pay, reinstatement (or 6-months front pay), double liquidated lost-wage damages if bad faith found, attorney’s fees.




NO compensatory or punitive damages.

Is individual decisionmaker liability possible under the FMLA?

Yes

What is GINA?

It’s the Genetic Information Nondiscrimination Act of 2009 that makes it unlawful to fail to hire, discharge, or discriminate in employment because of a person’s genetic information or to request/require genetic info. Only disparate treatment claims. Enforced by DOL, but little to no case decisions currently.

What does USERRA prohibit?

Discrimination against service members based on their military status or duties.

How is USERRA enforced?

It is enforced by the DOL. The employee may complain to the DOL or pursue a suit in federal court.

What does USERRA provide?

Up to 5 years of unpaid leave for military service members who are called to serve.

What is USERRA’s tenure provision?

Dependent on the length of service, the service member can’t be fired without cause after his or her return for between 6 and 12 months.

What is USERRA’s escalator provision?

The service member must be returned to the same or equal position upon return as if he never left. This includes benefits and incidents of employment.




However, this also works for bad things like pay cuts and layoffs

Does USERRA require notice by the employee?

Yes, as advance notice as possible before departure for service and timely application for return. If leaving service, must have favorable discharge.

How is FLSA enforced?

1. The Secretary of Labor can bring an action for civil liability, monetary penalties for the use of child labor, or seek injunction.


2. One or more employees may bring suit, but the Secretary of Labor may intercede.


3. DOJ may bring action for criminal penalties.

What employers are covered by FLSA?

Any employer engaged in commerce or producing goods for commerce. Family businesses are exempt.

How does the FLSA handle family businesses?

It exempts family businesses in which all employees are immediate family.

Does FLSA allow for joint employers?

Yes

What are the remedies available under FLSA?

1. Injunctive relief, backpay for up to 2 years, and double liquidated damages if willful.


2. Intentional violations extend your backpay and statute of limitations up to 3 years.

Is there a defense to the liquidated damages provision for willful violations under the FMLA?

Yes, when the violation was made in good faith. Can’t be just ignorance. Must be acting on the advice of counsel. High bar.

How does FLSA restrict child labor?

1. Under 12: only on family farm.


2. 12-13: with parent with parental consent.


3. 14-15: can work outside school hours in non-hazardous (non-mining, non-manufacturing) jobs.


4. 16-17: can work in most non-hazardous jobs.

What are the penalties for violating the child labor provision?

$50K for regular violations; $100K for willful violations.

What is the federal minimum wage?

$7.25

Is there a max amount of hours an employee can work in a week?

No, but if they are non-exempt, they must receive premium pay after 40 hours.

Is there an exemption under FLSA for temp or part-time employees? Seasonal?

No to temp and part-time, but yes to seasonal.

How is work-time defined under FLSA?

1. Includes: meals at post, breaks under 20 min, set-up/break-down, clean up, changing, some on call depending on employer's control during that time.


2. Excludes: meals over 30 minutes if relieved of duties, commuting to/from work.


3. Look at who principally benefits from the time.


4. An indispensable duty of work. If duty could be eliminated, not an indispensableduty of work.

How is work week defined under FLSA?

Seven consecutive days of 24-hour periods. Healthcare workers can aggregate 2 weeks.

How is salary defined under FLSA?

A predetermined amount of compensation per week.

Can a private employer offer comp time in lieu of premium pay?

No, but some instances in federal employment.

Other than exempt employees, are all other employees entitled to premium pay?

No, there are special provisions for police, firefighters, and healthcare workers.

What are the 3 traditional white collar positions exempt from FLSA’s premium pay provision?

1. Executive


2. Administrator


3. Learned and Creative Professionals

What is the test for determining if an employee is an exempt executive?

Duties Test: Their primary duty is managing the enterprise or a department or subdivision of the enterprise. The employee has the authority to hire or fire or make recommendations for such.




Salary Test: Paid at least $455/wk ($23,660/yr).

What is the test for determining if an employee is an exempt administrator?

Duties Test: Their primary duty is the performance of office or nonmanual work directly related to management policies or general business operations. They must exercise discretion and independent judgment with respect to matter of significance.



Salary Test: Paid at least $455/wk ($23,660/yr).


What is the test for determining if an employee is an exempt learned professional employee?

Duties Test: work must require advanced knowledge, be predominantly intellectual in nature and require consistent exercise of discretion and judgment instead of routinemanual work.



Salary Test: Paid at least $455/wk ($23,660/yr).

What is the test for determining if an employee is an exempt creative professional employee?

Duties Test: Their primary duties involve invention, imagination, or originality in a recognized artistic endeavor.




Salary Test: Paid at least $455/wk ($23,660/yr).

What are the other non-traditional white collar positions exempt from FLSA’s premium pay provision?

1. Computer Professionals


2. Outside salesman


3. Highly compensated employees

What is the test for determining if an employee is an exempt computer employee?

Duties Test: Theirprimary duties involve the theoretical and practical application of highly specialized computer systems. Analysts and programmers, not manufacturers or repairers.




Salary Test: Paid at least $455/wk ($23,660/yr).

What is the test for determining if an employee is an exempt outside salesman?

Duties Test: Their primary duties include making sales or contract for services and the job is customarily and regularly engaged in away from the employer’s place of business.

What is the test for determining if an employee is an exempt highly compensated employee?

Duties Test: At least one of the duties of the executive or administrative exempted categories.




Salary Test: Paid at least $100K/yr.

What do the Davis Bacon, Service Contract, andWalsh Healey Acts apply to?

Statutes that require government contractors to provide a prevailing wage to their employee and sometimes other benefits.

What is the EPA an amendment to?

FLSA

What does the EPA prohibit?

The EPA prohibits different pay rates between men and women who work the same job at the same business.

What are the statutory defenses under the EPA?

1. Bona fide seniority system.


2. Bona fide merit system.


3. Earnings by quantity/quality of production.


4. Differential based on another factor. - broad

Under VA Wage Payment Statute, when must an employee’s final paycheck be received after termination?

At the same time they would have had they remained employed.

Under the VA Wage Payment Statute, when must employees be paid during their employment?

For exempt employees, at least 1/month. For non-exempt, either 1/month or biweekly.

Under the VA Wage Payment Statute, when can anemployer deduct more than the standard federal and state deductions from paychecks

Only with written permission. Includes final paycheck.

Is there any federal law that provides an employee access to their records with private employers?

Only OSHA, which requires employers to maintain and make available certain health records pertaining to employment.

What does § 7 of the NLRA guarantee?

It guarantees the right to engage in concerted activity for mutual protection concerning the terms and conditions of their employment.

Does § 7 of the NLRA only apply to unionized work forces?

No

When determining whether a policy violates § 7 of the NLRA, what standard does the court apply?

Whether the policy can be construed to prohibit the concerted activity.

Who enforces and handles violations of the NLRA?

The NLRB, but cases are then appealable to the circuit courts.

Is there a federal right to privacy?

No

Are video and audio surveillance allowed under federal law?

Yes to video, but audio surveillance may violate the Wire Tap Statute.

What does Title I of the Electronic Communication Privacy Act prohibit?

The stealing of information in transfer.

What does Title II of the ECPA prohibit?

Unauthorized access to information after transfer.

What are the defenses to an ECPA (including WireTap Act) violation?

Consent and the provider exception.

When will OSHA govern a worksite’s safety?

Only when the state does not have an OSHA approved state plan.

What is the DOL’s jurisdiction under OSHA?

It is very broad. Basically, if it could affect commerce.

What is generally OSHA’s enforcement scheme?

1. OSHA does programmed or unprogrammed inspections.


2. OSHA can impose fine.


3. Employer can appeal to OSHRC-ALJ, then Secretary of Labor, then, ultimately, circuit courts.


4. No private right to sue.

What must employers comply with under OSHA?

Both OSHA regulations and the General Duty Clause.

What is the General Duty Clause?

OSHA § 5(a)(1): Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

What are the four factors used to determine the scope of the employer’s duty to abate hazards under the General Duty Clause?

1. Existence of a hazard.


2. Recognition of a hazard by the employee or the industry.


3. That threatens serious physical harm or death.


4. There is a feasible means to eliminate or materially reduce the hazard's harms.

What are these factors used for?

To examine the processes and procedures the employer has to abide with the General Duty Clause.

What is the two-part test used to determine if safety instructions are OSHA compliant?

1. That they are specific enough to allow the employees to recognize and avoid the hazard.


2. That they are modeled on applicable regulation.

What is the unpreventable employee misconduct defense under OSHA and what are the elements?

Employer took reasonable care in establishing and maintain rules to avoid injury and the employee’s actions took him outside the scope of his duties.


Factors:


1. The employer has rules in place.


2. Employer communicated those rules to the employees.


3. Employer tries to catch violations.


4. Employer enforces the rules when he finds violations.

What is required for an unannounced inspection?

A warrant.

Do employees get to accompany an inspector on an inspection?

Yes

Can employers also have someone sitting in on OSHA interviews?

Only for management level employees, not rank-and-file.

Does OSHA provide a private cause of action?

No

What is OSHA’s position on home offices versus home-based production work sites?

Home offices are not inspected by OSHA. However, OSHA will inspect home-based work sites if they receive a complaint or referral. The inspection is limited to employee’s activities and employer is responsible for standards.

Does the Worker’s Comp. scheme preempt tort claims?

Yes

What does Worker’s Comp. cover?

Damages due to work-related injuries and illnesses.

What are the different categories of benefits provided under the Worker’s Comp. scheme?

1. Medical: 100% and applies broadly to anything associated with medical care.


2. Lost wages: in VA, it is set at a fixed percentage of a worker’s average weekly wage.


3. Scheduled loses: payout when employee loses a limb, etc.


4. Vocational rehabilitation.


5. Death benefits.

What are the different categories of injuries under Worker’s Comp.?

Temporary-partial, temporary-total, permanent-partial, permanent-total.

What does the statute require of the injury or illness to be covered?

That is arises out of and in the course of employment.

What does “arises out of” mean under Worker’sComp.?

The injury must have a causal connection to work. Horseplay could go either way.

What does “in the course of employment mean under Worker’s Comp.?

Look at the time, place, and circumstances.

What does “injury by accident” mean under Worker's Comp. and what does VA require?

1. An identifiable incident.


2. Occurs at a reasonably definite time.


3. Involving an obvious sudden mechanical or structural change in body.


4. A causal connection between the incident and the structural change.


a. Generally psychological injuries are not covered unless married up to a physical injury. Some states will allow if the obvious shock caused at work.


b. Long term progressively worsening injury generally not compensable.


5. In VA, injury from intentional violation of employer rule not accident.

What is the majority rule to remove an injury from Worker’s Comp. to tort liability?

That it was not an accident, but intentional. More than recklessness or negligence.

What illnesses does Worker’s Comp. not extend to?

The ordinary diseases of life. And in some states progressive illnesses.

What is the dual capacity doctrine?

Applies when employee is seeking services at the employer. For instance, a nurse was injured at her hospital and subsequently slipped and fell while seeking medical treatment for her worker’s comp. injury at the same hospital. This is a minority rule and is not VA law.

Under Worker's Comp., how does an attorney get his fees in VA?

If the fee is on a contingent scheme and approved by the Worker’s Comp. Commission.

What are the federal worker’s comp.-like schemes?

FELA, FECA, Jones Act, Black Lung, Longshore, and Energy Workers. Some are actually worker’s comp. schemes, others, like FELA and the Jones Act, have such low bars that they are basically strict liability

How can an employee get around at-will employment?

1. By contract.


2. Statutory protections, like Montana’s.


3. Implied covenant of good faith and fair dealing – not VA.

Are satisfactory performance clauses in employment contracts enforceable?

No

Is specific performance a remedy under employment contracts?

No. Under 13th Amendment, no involuntary servitude.

How can an employer avoid a handbook becoming a contract?

Include a disclaimer saying it’s not a contract.

What is a Bowman-Lockhart claim in VA?

Your discharge is inviolation of public policy that is expressed explicitly in a statute and you are in the class entitled to protection under the statute. The statute can't be for the general public.

What are the three ways in VA that wrongful discharge in violation of public policy will give rise to a cause of action?

1. The employee is exercising a statutorily created right.


2. Bowman-Lockhart: discharge is in violation of public policy that is expressed explicitly in a statute and you are in the class entitled to protection under the statute. And the statute isn't for the general public.


3. Refusing to engage in a criminal act.

What are the two terms of art that trigger the Warn Act?

Mass layoff or plant closing.

What does the Warn Act require?

Employees must be given at least 60-days notice. Notices must go to both employees and the various applicable government entities.

How is the Warn Act enforced?

No agency enforces the Act, purely private causes of action.

What are the remedies available under the Warn Act?

Only pay for the time that employee should have received notice.

Are there any real defenses to the Warn Act?

No

Is there a common law fiduciary duty to your employer?

Yes

How long does the duty to protect an employer’s confidences and proprietary information last?

Your lifetime.

What are the two primary elements of a trade secret under the Uniform Trade Secrets Act?

1. Independent economic value.


2. Reasonable efforts to protect it.

Is it permissible to plan to leave and employer to compete?

Yes, as long as you do not begin to compete while you are still employed.

Why are non-competes generally disfavored?

Because they are restraints of trade.

All non-competes must:

1. Be narrowly written to protect the employer’s business interest.


2. Not violate public policy.


3. Not unduly burden the employee’s ability to earn a living.

What are the 3 ways the scope of non-competes are evaluated?

Temporal scope, geographical scope, and the scope of duties.

What is blue penciling and is it done in VA?

Blue penciling is when a court changes specific provisions in a contract to make them reasonable so that other provisions in the contract can be enforced. VA does not blue pencil.

What is the janitor defense and when does it arise?

Arises when the non-compete covers any work for a competitor in any capacity. This is an unreasonable constraint.

Are non-competes assignable?

No

What state will almost never enforce non-competes?

California. They will only enforce non-competes in the relation to the selling of a business on the person selling the business.

Who runs the unemployment comp. scheme?

States

Generally, how long can someone receive unemployment?

26 weeks, but this can be extended.

In VA, to whom does the liability for unemployment benefits attach?

To the last employer for whom the employee worked at least 30 days.

What must an employee show to receive unemployment benefits?

That he is eligible and not disqualified. Eligibility is determined weekly. Whether disqualified is determined once at the beginning.

What is required in VA to be eligible for unemployment benefits?

1. Able to work and available for work.


2. In VA, you are able to work if you have the physical and mental ability to perform some substantially saleable service.


3. In VA, you are available for work if you are not ill, on vacation, or in jail, but actively seeking and willing to accept suitable work.

How is suitable work determined?

The commission will take into consideration the employee’s skills, experience, and training, as well as the amount of time the employee has been out of work. The longer the unemployment, the broader suitable work is determined.

What is required in VA to be qualified (not eligibility determination) for unemployment benefits?

1. Voluntary quit without good cause. In VA,the claimant’s actions are unconstrained by other’s interference, un-impelled by another’s influences, spontaneous, compelled by free choice. Must be job site related. Must take steps of reasonable person wanting to keep employment.


2. Disqualifying misconduct. VA requires a deliberate violation of a company rule designed to protect its legitimate business interests or engage in conduct of such a nature or so recurrent that it manifest a willful disregard of its interest or the duties and obligations of the employer.