Legal And Social Test 5

Front 1

under the common law ______, employers are generally free to hire and fire workers at will, unless doing so

Back 1

employment-at-will doctrine
violates an employee's contractual or statutory rights
-majority of U.S. workers use this except Montana
-Varies by state for all employers

Front 2

under the employment at will doctrine, either party may terminate the employment relationship at any time and for any reason unless

Back 2

doing so would violate the provisions of an employment contract or a statue

Front 3

(1)means an employee can legally be fired for just about any reason: but not

Back 3

employee-at-will
-for certain discriminatory reasons
-not hiring someone who is unemployed is not discrimination, nor is firing for what an employee wears, their weight, or what they put on social media

Front 4

(2)means an employee can legally be fired for just about any reason: but not

Back 4

employee-at-will
-if there's an implied contract for continued employment

Front 5

(3)means an employee can legally be fired for just about any reason: but not

Back 5

employee-at-will
-if firing the employee would violate public policy

Front 6

(1)means an employee can legally be fired for just about any reason: but not
-wrongful discharge
-an employer may be liable for making false promises to prospective employee if the person detrimentally relies on the employer's representations by taking the job

Back 6

employee-at-will
-under a RARE tort: abusive discharge

Front 7

Federal laws dealing with areas of employment other than discrimination #1

Back 7

laws dealing with immigration and with union management relations

Front 8

Federal laws dealing with areas of employment other than discrimination #1

Back 8

old age, survivors, and disability income (OASDI
-social security
-both employers and employees must contribute under FICA to help pay for benefits that will partially make up for the employees loss of income in retirement

Front 9

Federal laws dealing with areas of employment other than discrimination #1

-imposes a general duty on employers to keep workplaces safe

Back 9

occupational safety and health act (OSHA)
-11 or more employees
-required to keep occupational injury and illness records for each employee

Front 10

Federal laws dealing with areas of employment other than discrimination #1

-provides an employee with up to 12 weeks or unpaid family or medical leave during any 12 month period

Back 10

Family and Medical Leave Act (FMLA)
-leave is not paid
-private and public employees
-50 or more employees
-Exception: Key Man top 10% wage earners

Front 11

Federal laws dealing with areas of employment other than discrimination #1

Back 11

Whistleblower Protection Act
-only federal
-only when the employee tells gov. authorities, upper level management, or the media

Front 12

-all employment contracts contain an implied covenant of ____ ____
-if an employer fires an employee for an arbitrary or unjustified reason, the employee can claim that the covenant of ___ ___ was breached and the contract violated

Back 12

good faith

Front 13

when an employer discharges an employer in violation of an employment contract or a statutory law protecting employees the employee can bring action

Ex: An employer discharges a female employee and publicly discloses private facts about her sex life to her co-workers, the employee could bring a ___ ___ based invasion of privacy

Back 13

wrongful discharge
-even if an employers actions do not violate any express employment contract or statue, the employer may still be subject to liability under a common law doctrine, such as tory theory of agency

Front 14

Federal laws dealing with areas of employment other than discrimination #2

-prohibits the intentional interception of any wire or electronic communication or the intentional disclosure or use of the information obtained by the interception

-If the employer provided the email system or blog that the employee used for communications, a court with typically hold that the employee did not have a reasonable expectation of privacy

Back 14

Electronic Communications Privacy Act
-Excluded from coverage are any electronic communications through devices that are "furnished to the subscriber or user by a provider of wire or electronic communication service" IN THE ORDINARY COURSE OF ITS BUSINESS
-does not protect the privacy of communications through devices that were furnished that were furnished to the employee by the employer and that are being used in the ordinary course of the employer's business

Front 15

allows an employer to monitor employee's electronic communications in the ordinary course of business under the Electronic Communications Privacy Act

Back 15

business extension exception

-does not permit an employer to monitor employees personal communications
-an employer may avoid liability if the employees consent to having their electronic communications intercepted by the employer, Ex: requiring employees to sign forms indicating that they consent to such monitoring

Front 16

Federal laws dealing with areas of employment other than discrimination #2

Back 16

employee polygraph protection act
-unless their investigating a loss/theft

Front 17

Federal laws dealing with areas of employment other than discrimination #2

-requires large businesses to provide sixty days notice before implementing a mass layoff or closing plant that employs more than 100 full time workers

-can be avoided by staggering layoffs over many months or various locations

Back 17

worker adjustment and retraining act (WARN act)
-notice can be sent to affected workers OR their representative if they are members of a labor union as well as state/local government authorities
-federal law applies to employers w/ at least 100 full time workers

Front 18

Federal laws dealing with areas of employment other than discrimination #2

-employers cannot make hiring decisions, firing, job placement, based on the results of genetic testing

Back 18

genetic information nondiscrimination act
-15 or more employees
-prohibits group health plans and insurers from denying coverage or charging higher premiumbs based solely on a genetic predisposition to develop a disease in the future

Front 19

Federal laws dealing with areas of employment other than discrimination #3

-applies to employees engaged in interstate commerce unless the employer can claim an exemption

Back 19

Fair Labor Standards Act
-if you work over 40 hours, you do not get paid overtime
-child labor
-minimum wage

Front 20

Federal laws dealing with areas of employment other than discrimination #3

-for workers whose jobs have been terminated and are no longer eligible for group health insurance plans, federal law provides a right to continued health care coverage

Back 20

Consolidated Omnibus Budget Reconciliation Act (COBRA)
-can keep health insurance for up to 18 months if you are fired or are quit, as long as you pay for the bill
-to get a fired employee off the health insurance plan, employers can eliminate health insurance for all employees

Front 21

Federal laws dealing with areas of employment other than discrimination #4

-greatly restricts how and why employers collect, use, and disclose health info

Back 21

Health Insurance Portability and Accountability Act (HIPAA)
-can exclude preexisting for the previous 6 months
-requires employers to give credit to employees for previous health coverage to decrease any waiting period before their own coverage becomes effective

Front 22

*limits the ability of an employer that provides its employees health insurance to exclude coverage for preexisting conditions* and it also requires those employers to decrease the waiting period for a new employee who is still covered by healthy insurance by a former employer

Back 22

HIPAA

Front 23

Federal laws dealing with areas of employment other than discrimination #4

-management of pension funds

Back 23

Employee Retirement Income Security Act (ERISA)
-vesting (to acquire rights in)
-vesting varies according to the employees contribution
-All of an employees contributions to a pension plan vest immediately and the employers rights to the employers contributions vest after five years of employment

Front 24

Private employers CAN (usually) do some things concerning its employees, such as
-as long as they're random and non-discriminatory

Back 24

-test for drugs
-search private offices
-monitor email

Front 25

Private employers canNOT (usually)

Back 25

require employees to take polygraph tests

Front 26

state laws dealing with the employment relationship (1)
What is fully funded by employers?

Back 26

unemployment compensation

Front 27

state laws dealing with the employment relationship (2)

-administrative procedure for compensating workers injured on the job, instead of suing, the injured worker can file a claim. Must be filed promptly (w/in 30 days)

Back 27

workers compensation statutes
-does not cover all employees, covers all minors
-every state has some kind of work comp. law (medical bills and half of wages lost) even if they were negligent
-has to have occurred on the job or in the course of employment regardless of who was at fault

Front 28

state laws dealing with the employment relationship (3)

Back 28

state statues dealing with employment at will issues, or discrimination issues

Front 29

FLSA prohibits oppressive
under 14
14-15
16-18

Back 29

child labor
-children *under 14* are allowed to do CERTAIN types of work, such as deliver newspapers, work for their parents, and be employed in the entertainment, and (some exceptions) agricultural areas
- ages 14 to 15 are allowed to work but not in hazardous occupations, restrictions on how many hours per day and per week children can work
-ages 16 to 18 working times/hours and not restricted but cannot be employed in hazardous jobs or in jobs detrimental to their health and well being

Front 30

FLSA provides that a _____ ____ of $7.25 per hour must be paid to employees in covered industries

Back 30

minimum wage
-when state minimum wage is greater than the fed. minimum wage, the employee is entitled to the higher wage

Front 31

any employee who works more than 40 hours per week must be paid no less than 1.5 times their regular pay for all hours over 40

Back 31

overtime provisions and exemptions
-an employer can voluntarily pay overtime to ineligible employees but cannot waive or reduce the overtime requirements of the FLSA
-an employees primary duty is determined by what they do that is of principal value to the employer, not by how much time the employees spends doing particular tasks, (must be able to show)employee's primary duty qualifies them for exemption

Front 32

Employer violations of FMLA

Back 32

1.damages for lost wages and benefits, denied compensation, and actual monetary losses
2. job reinstatement
3. promotion, if the promotion was denied
-plaintiff is entitled to court costs/attorney fees
-employers are required to notify employees when an absence will be counted against leave authorized under the act

Front 33

Drug testing for public and private employees

Back 33

Public: constrained by the Fourth Amendment, allowed by statute for transportation workers and when a particular job may affect public safety (usually legal)

Private: Fourth Amendment does not apply in most states

Front 34

charged with enforcing various federal statues and regulations prohibiting employment discrimination

Back 34

Equal Employment Opportunity Commission (EEOC)
-federal agency (see agency notes)
-victim must first file with EEOC before the lawsuit can be brought against the employer, then EEOC can file a suit against employer on employees behalf
-first, will try for an out-of-court settlement
-does not investigate every claim, only "priority cases" that affect many workers or retaliation claims
-employee can bring own suit if EEOC will not

Front 35

-prohibits discrimination by covered employers on the basis of race, color, religion, national origin, gender
-also prohibits discrimination against an individual because of his/her ASSOCIATION w/ another individual of (the above)
-illegal for employers to make work related decisions based on this

Back 35

protected classes under Title 7(VII)
-"covered employers"
-15 or more employees
-hiring halls (temp. agency for labor unions)
-labor unions
-includes undocumented (alien) workers
-does not require that covered employers adopt affirmative action programs

Front 36

“treating employees or job applicants unequally on the
basis of race, color, national origin, religion, gender, age, disability or other basis prohibited by federal law.”

Back 36

employment discrimination

Front 37

Ex: I'm not promoting you because of your gender
-intentional, against employees who are members of a protected class

Back 37

disparate treatment
-intentional discrimination

Front 38

To win disparate treatment, Plaintiff must prove each of 4 things:

Back 38

-They are a member of a protected class
-They applied for and was qualified for (or was employed in) the position in question
-They were rejected, demoted, or terminated by the employer
*To meet this requirements is "prima facie case", plaintiff has met initial burden of proof
-Employer then filled position w/ one not in a protected class

Front 39

Once the plaintiff has met the initial burden of proof:

Back 39

1. Plaintiff will win unless employer can present a legally acceptable defense
2. Burden then SHIFTS to employer-defendant who must articulate a legal reason for not hiring the plaintiff
3. To prevail, plaintiff must then show the employers reason is a pretext (not the true reason) and that discriminatory intent actually motivated the employer's decision

Front 40

Occurs when a protected group of people is adversely affected by an employer's practices, procedures, or tests, even though they do not appear to be discriminartory
-employers often use interviews and tests to choose from among a large number of applicants for job openings
-minimum education requirements

Back 40

disparate impact (unintentional)
-once it is proven, the plaintiff must show a causal link between the employers practice and the discriminatory effect which establishes a prima facie case, and the burden of proof then shifts to the employer to show that the practices or procedures in question were justified

Front 41

-disparate impact is typically "proven" by look at 1/2 things
If employer's workforce does not reflect the % of members of protected classes that characterizes qualified individuals in the local market

Back 41

pool of applicants analysis

Front 42

-disparate impact is typically "proven" by look at 1/2 things
If members of non-protected classes are selected for
employer’s work force at substantially higher rate
than protected classes

Back 42

selection rates analysis
-a selection rate for a protected class that is less thatn 4/5, or 80%, of the rate for the group with the highest rate of hiring generally will be regarded as evidence of disparate impact

Front 43

-a rule courts use to determine if one type of disparate impact discrimination has occurred
-looks at the _______ for the employer
-If the selection rate for protected classes is ____
than 80% of the rate for the group with the
_______ rate, there is generally evidence of
disparate impact
-What does this mean?

Back 43

4/5 Rule (80% rule)
-selection rate of protected vs. non-protected classes
-less, highest
-Means the selection rate is discriminatory “on its face”

Front 44

in employment w/ regard to race is always ILLEGAL
-Applies to both disparate treatment and
disparate impact

Back 44

race

Front 45

employers must reasonably accommodate their employees religious beliefs
Ex: Religious beliefs not allowing someone to work on Saturdays, so not hiring means you cannot accommodate that need
-Exception?

Back 45

religion
-UNLESS doing so would cause "undue hardship" to the employer's business
Ex: McDonalds will not hire someone who thinks that Gods wants them to not wear shoes at work, it is unsanitary

Front 46

-applies to all employers covered by Title VII
-Prohibits discrimination on the basis of genetic
information with respect to health insurance
and employment
-What does it do?

Back 46

Genetic Information Nondiscrimination Act
(GINA)
-Also stops employers and insurers from
requiring applicants to submit to genetic tests

Front 47

Federal law prohibits employers from discriminating
on account of gender in many different situations (3 things)
-Exception?

Back 47

gender can SOMETIMES be used
-Can’t classify jobs as male or female
-Can’t advertise jobs as designated male or female
-Can’t discriminate against applicants/employees on account
of gender
Exception:UNLESS the employer can prove
that gender is essential to the job in question

Front 48

under the Federal Unemployment Tax Act _______ pay into a fund that provides unemployment compensation to eligible individuals

Back 48

employers, but not employees

Front 49

Title Vii: Employers w/ less than fifteen employees are...

Back 49

not automatically shielded from a lawsuit
-special section of the act prohibits discrimination in most federal government employment

Front 50

Suppose that 100 nonprotected applicants take an employment exam; 50 pass and are hired
•Then 20 protected applicants take that same employment exam; 5 pass & are hired. DID THE TEST “pass” 4/5 rule?

Back 50

•STEP ONE: based on the facts given, what % of NONprotected applicants passed & were hired? --50%
•STEP TWO: multiply 50% (from Step 1) times the number of PROTECTED applicants -- 50% X 20 = 10
•STEP 3: multiply 10 (from Step 2) times 80% (the 4/5 Rule)----gives us 8. SO..did at least 8 protected applicants pass & get hired? No only 5 did, test FLUNKS 4/5 rule and is PRIMA FACIE (presumed to be) discriminatory

Front 51

•400 nonprotected applicants take an
employment test, and 100 pass & are hired
•200 protected applicants also take the test
•What is the minimum number of protected-
class applicants who would have to pass the test
& be hired in order to pass the EEOC’s 4/5
rule?

Back 51

?

Front 52

discrimination against majority group individuals such as white males
Ex: An African American man firing several white men from their management positions at a school district

Back 52

reverse discrimination

Front 53

-prohibits the discrimination on the basis of race or ethnicity in the formation or enforcement of contracts
-because this is a contractual relationship, can provide an alternative advantageous because it does not place a cap on damages

Back 53

42 USC Section 1981

Front 54

If an employees _____ prohibits them from working on a certain day of the week or at a certain type of job, the employer must make a reasonable attempt to accommodate these religious requirements unless....

Back 54

Religion
-religious institutions can discriminate according to religion
-it would cause "undue hardship" on the employers business
-employers cannot require employees to participate in any religious activity or forbid them from participating

Front 55

Federal law requires employers to treat women
who are pregnant or have recently given birth the
same as any other employee who is temporarily
unable to perform some or all job functions, including the receipt of benefits under employee benefit programs

Back 55

Pregnancy discrimination act
-15 or more employees

Front 56

Federal law prohibits gender-based differences in
wages for equal work

Back 56

Equal Pay Act
-resulted in the Paycheck Fairness Act which closed loopholes of the EPA that allowed employers to justify wage discrimination if it was based on any factor other than gender
-no minimum of employees, applies to all employers of interstate commerce
-seniority or the merit system is legal

Front 57

Clarifies the defenses that employers may offer and prohibits the use of gender based differentials in assessing an employees education, training, or experience

Back 57

Paycheck Fairness Act
-provides additional remedies for wage discrimination including compensatory and punitive damages
-prohibits using gender-based differentials in
assessing an employee’s education, training or
experience
-no minimum of employees, applies to all employers of interstate commerce

Front 58

Makes discriminatory wages actionable under federal law regardless of when the discrimiation began

Back 58

Lily Ledbetter Fair Pay Act of 2009
-plaintiff has 180 days from when the cause of action arises to file a complaint
-if plaintiff continues to work for the employer while receiving discriminatory wages, the time period for filing a complaint is basically unlimited
-Makes discriminatory wages actionable under
federal law
-Clarified the time frame for bringing a lawsuit (is
180 days from the last act of discrimination, not the
date when the discrimination began or was
discovered)
-no minimum of employees, applies to all employers of interstate commerce

Front 59

translated means "this for that"
a job benefit in exchange for a sexual favor
-types of harassment

Back 59

quid pro quo sexual harassment
-determined on a case by case basis
-one incident of sexually offensive conduct is not enough to permeate the work environment

Front 60

constructive discharge
When an employer causes an emplyees working conditions to be so intolerable that a reasonable person in the employees position would feel compelled to quit
-types of harassment

Back 60

hostile environment sexual harassment
-employee handbook should say "we do not tolerate sexual harassment, if you think you have been harassed here's where to report" employee must report before quitting or they will lose if they file suit

Front 61

-when the victim is homosexual, some courts have found that the harasser's conduct does not qualify as sexual harassment under Title VII b/c it was based on the employees sexual orientation, not on his/her sex

Back 61

same gender sexual harassment
-Title VII does not prohibit discrimination or harassment based on a person's sexual orientation but a growing number of states have enacted laws that prohibit sexual orientation discrimination in PRIVATE employment

Front 62

Includes a worker who regularly sees sexually explicit images on a co-worker's computer screen, racial jokes, ethnic slurs, other comments in emails

Back 62

online harassment
-only on company time and company devices
-compensatory damages are available only in cases of intentional discrimination
-punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifference

Front 63

3 sources of sexual harassment

Back 63

1. supervisors: generally, employer is liable is even if the employer did not know about the harassing activity (supervisor can turn around and sue back)

2.coworkers: employer is liable if the employer knew or should have known of the harassing activity

3. non-employees: employer is sometimes liable, will be liable if the employer had the ability to prevent the harassment and failed to act, employee needs to contact whoever for sexual harassment

Front 64

-Prohibits employment discrimination on the basis
of age against persons 40 years old and older
-Prohibits mandatory retirement for *non-managerial
employees*

Back 64

Age Discrimination in Employment Act (ADEA)
-legal to fire someone because they can't do the job anymore
-salary is not protected
-20 or more employees
-employee does not have to prove that they were replaced by a person outside the protected class (under the age of 40) but must present evidence that the layoff was motivated by age bias

Front 65

Plaintiff must prove 3 things to win under the ADEA:

Back 65

1. At the time of the employment decision/action,
s/he as a member of the protected age group

2. S/he was qualified for the position

3. S/he was not hired, not promoted, discharged, etc.,
because of age discrimination
*position can be filled be someone who is in the same protected class

Front 66

?

Back 66

Rehabilitation Act
-disability discrimination
-applies to Fed. Govt and companies that contract with the Red. Govt

Front 67

Drug addiction & alcoholism

Back 67

-protected by ADA
-former drug addicts who have completed or are ow in a supervised drug rehab program
-employers have the right to prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol while working
-can refuse to hire an alcoholic if they pose a risk to themselves or others

Front 68

Prohibits discrimination in hiring, promotion, and
discharge against persons with disabilities

Back 68

Americans With Disabilities Act
-15 or more employees
-testing must be done in a nondiscriminatory way
-Employers who do not accommodate the needs of persons w/ disabilities must demonstrate that the accommodations would cause undue hardship
-Modify job applications and selection process

Front 69

What is a disability? (3 things)

Back 69

·A mental/physical impairment that substantially limits
one or more major life activities
·A record of such impairment OR
·Being regarded as having such an impairment
-Also includes: blindness, alcoholism, heart disease, cancer, muscular dystrophy, etc.

Front 70

Health insurance plans for workers w/ disabilities

Back 70

-must be given equal access to health insurance provided to other employees
-employer can put a limit, or cap, on health care payments under its group health policy for ALL employees

Front 71

What if an employee/job applicant has a disability?

Back 71

•Employer should first determine if the employee/job
applicant is otherwise qualified
•If so, the employer should then determine if the
employee/job applicant can, with REASONABLE
ACCOMMODATION, perform essential job functions
•If so, employer must make such accommodations,
UNLESS doing so would create an undue hardship for
the employer

Front 72

Who normally has the burden of proof in discrimination cases?

Back 72

plaintiff

Front 73

3 Defenses that are commonly used by employers
when defending a charge of employment
discrimination include:

Back 73

1.Business necessity: having a license in a particular state, needing a high school diploma
2.Bona fide occupational qualification (BFOQ): Sometimes gender but never face color and national origin
3. promotions or other job benefits are distributed according to a fair Seniority

Front 74

Are hiring/promotion policies that give special
consideration to members of protected classes
-Title VII of the Civil Rights Act neither requires nor prohibits this, but some private companies and organizations have done so
-__________ that don’t do business with the
government nor receive ___________ aren’t required to
implement affirmative actions programs, but are
allowed to do so, if desired

Back 74

Affirmative Action
-courts overturn AA and once they have been succeeded they are thrown out
-Are adopted as an effort to overcome present
effects of past discrimination
-Private employers, federal funds
-AA programs may violate the equal protection clause of the 14th amendment b/c of their discriminatory nature

Front 75

Prohibits employers from hiring illegal immigrants
Limits the number of legal immigrants to the US each year by capping the number of visas that are issued

Back 75

Immigration Act of 1990

Front 76

-Sets standards for immigrants who want to work in the U.S.
-Punishes employers who do not meet those standards
Employer must have a signed a statement w/in first 3 days of the job from employee (what is the name of the form?) and a drivers license, green card, visa, etc.

Back 76

Immigration Reform and Control Act (IRCA)
-Form: i9, if the employer accepts evidence that looks obviously fake, the employer is liable. If forms look ok, the employer must fire employee as soon as they know they are illegal
-Only needed for employees, not including independent contractors
-Legal actions alleging violations of i9 rules are brought against employees, false documentation can lead to firing the worker and deportation
-it is unfair immigration related practice for an employer to discriminate against any individual other than illegal aliens

Front 77

Illegal under Immigration Reform and Control Act

Back 77

requiring more documentation for employees that employer thinks could be illegal

Front 78

individuals who believe they have suffered as a result of illegal hiring have no direct cause of action to sue an employer under current law, but they can sue using the violations as a predicate illegal act

Back 78

Racketeer Influenced and Corrupt Organizations Act `RICO

Front 79

IRCA rules are enforced by
-The law allows ____ to seek criminal punishment for acts such as harboring an aline or illegally inducing illegal immigration

Back 79

Immigration and Customs Enforcement (ICE)
does not need a search warrant to look for illegal immigrant employees documentation

Front 80

`Employer has 3 options to hire a non-citizen worker:

Back 80

1. self-authorized: has documents like a green card or stamped visa
2. sponsor a foreign born worker and help them obtain a green card: employer must promise there is no American worker qualified to do the job, must provide employee with all benefits and an equal wage level
3. employer must help employee get temporary work position and visa

Front 81

-non-citizen worker has a specialty talent
-between 3 and 6 years
-employee can only work for that employer then must leave country

Back 81

H1-B visa
Ex: technology employees

Front 82

-What is the appropriate group of employees to form a union?
-Who cannot unionize?
-What is a yellow dog contract?

Back 82

-similarity of jobs or mutuality of interest
Ex:
-supervisors and managers
-Employee promises to never join a union

Front 83

protects employees rights to peacefully strink, picket, and boycott

Back 83

Norris-LaGuardia Act

Front 84

Has the authority to investigate employees charges of unfair labor practices and to file complaints against employers in response to these charges

Back 84

National Labor Relations Act- NRLA (Wagner Act)
-When violations are found, issues a cease and desist order compelling the employer to stop engaging in unfair practices

Front 85

5 employer practices unfair to labor

Back 85

1. Refuse to recognize a union and refuse to bargain in good faith
2. interfere with, restrain, or coerce employees in their efforts to form a union and bargain collectively
3. Dominate a union
4. Discriminate against union workers
5. Punish employees for engaging in concerted activity

Front 86

Enables the President to declare that a union strike (or potential strike) would create a national emergency, and gives him power to declare an 80 day cooling off period
Also establish some union ULP's forbids unions from refusing to bargain w/ employers, engaging in certain types of picketing, and featherbedding

Back 86

Labor-Management Relations Act LMRA
-has happened 36 times
-Establishes some union ULP's

Front 87

7 union practices unfair to labor

Back 87

1. refuse to bargain in good faith
2. Picket to coerce unionization w/o the support of a majority of the employees
3. Demand the hiring of unnecessary excess workers
4. Discriminate against nonunion workers
5. Agree to participate in a secondary boycott
6. Engage in an illegal strike
7. Charge excessive membership fees

Front 88

causing employers to hire unneeded employees

Back 88

Featherbedding
-having employees to do a job when the job does not need to be done
-union unfair labor practices

Front 89

requires union membership as a pre-req to employment
-Labor-Management Relations Act was passed to forbid certain unfair union practices

Back 89

Closed shop
-"we only take applications (can only apply)from people who belong to a union"
-ends up w/ a workforce that is completely unionized
-not legal in any states

Front 90

Requires payment of union dues in order to keep a job

Back 90

union shop
-any one can apply but if you get the job you have to join a union w/in a specified amount of time
-ends up w/ a workforce that is completely unionized
-illegal in "right to work" states, each state can vote on if they want to be "right to work" or not

Front 91

laws making it illegal for continued employment in any establishment
no one can EVER be forced to join a union in order to keep a job
Which means...

Back 91

right to work job laws
union shops are technically illegal in the twenty two states that have right to work laws

Front 92

strike directed against someone other than the strikers employer
Ex: Pitt State has telephone service through Sprint and Sprint employees don't want Pitt State to do business with them

Back 92

(most) Secondary boycotts
-usually illegal
-Legal: information dispensed is truthful, does not cause a work stoppage, and has the purpose of informing the general public that the secondary neutral employer distributes a product that is produced by the primary employer.

Front 93

agreement is an agreement between an employer and a union in which the employer agrees not to handle or work on any freight or product coming from another person with whom the union has a dispute

Back 93

hot cargo agreements

Front 94

-aimed at cleaning up unions
-Strictly regulates unions internal activities
-reporting requirements for union activities
-outlaws hot cargo agreements
-Where can this be found (what did it establish?)

Back 94

Labor-Management Reporting and Disclosure Act
-found in the union members bill of rights

Front 95

Labor-Management Reporting and Disclosure Act (5 things)

Back 95

-regulates unions internal activities
-requires unions to hold regularly scheduled elections of officers using secret ballots
-Former convicts are forbidded from holding union office
-Union officials are accountable for union property and funds
-Union members have the right to attend and to participate in union meetings, nominate officers, and vote in most union proceedings

Front 96

Examples of illegal union activities (against it's members)

Back 96

•Charge excessive union dues
•Refusing to give union members notice of
union meetings; right to speak at union
meetings; right to vote at union meetings; copy
of the collective bargaining agreement
•Labor Management Reporting & Disclosure
Act also makes union officials accountable for
union funds

Front 97

the key starting point for labor relations law is the decision by a company's employees to form a union, which is refereed to as their

Back 97

bargaining representative
-union will often resist these efforts to unionize

Front 98

Step 1 of unionization**** check % ****

Back 98

request authorization cards of relevant workers: cards usually state that the worker desires to have a certain union represent the workforce

Front 99

Step 2 of unionization

Back 99

Petition to NLRB: union supporters must demonstrate that at least 30% of those to be represented support a union or an election

Front 100

Step 3 of unionization

Back 100

Campaign
-"while you are clocked in, your on my dime" so employees cannot solicit for the union on company time if it *interferes w/ business or as a means to ensure safety* except during lunch/coffee breaks
-employers cannot SELECTIVELY prohibit union solicitation
EX: If union solicitation is not allowed, neither is political candidate campaigns
-employer can legally say they don't think the employees needs to join a union, as long as the communications do not contain a threat, a force,
-24 hours before election employer can not speak about union on company time, but can talk about it elsewhere to employees who come voluntarily w/o being paid

Front 101

Sometimes a plant with an existing union may attempt to _______ the union
-Who performs this action?

Back 101

decertify (de-union)
-Encouraged by managers by conducted by the employees
-Requires petition to NLRB w/ 30% showing of employee who support
-NLRB will grant this petition and call for desertification election

Front 102

Step 4 of unionization

Back 102

Election/certification
-Desertification is also a possibility for when union members don't think the union is doing it's job

Front 103

An employer may also campaign against the union or for desertification of an existing union
-can call workers in during work time and make a speech against unionization which does not require

Back 103

Management Election Campaigns
-an equal opportunity for rebuttal
-No threats if employees vote to unionize
-Laboratory conditions

Front 104

The NLRB tries to maintain _______ for a fair election that is unaffected by pressure
-Mainly concerned a/b promises or threats made by the employer at the last minute, immediately before the election
-What is the result of threats?
-Employees cannot undertake certain types of ________ of workers or even create the impression of observing workers to identify union sympathizers.

Back 104

laboratory conditions
-NLRB may certify union even if they lost the election
-Surveillance

Front 105

A demand must be taken seriously and considered as part of a package to be negotiated
-DOES NOT MEAN that one side must give in to the other or that compromises must be made

Back 105

bargaining

Front 106

Who does the union bargain for?

Back 106

members

Front 107

What terms and conditions of employment do the union and the employer typically bargain collectively about?

Back 107

-Terms apply to all workers in the bargaining unit, even those who do not choose to belong to the union
-Wages, hours of work (broad terms), safety rules, insurance coverage, pension, employee benefit plans, procedures for employee discipline, procedures for employee grievances against the company and even the price of food sold in the company cafeteria.

Front 108

What about plant's closings, relocation's, and severance? (3 things)

Back 108

-Management need not bargain w/ a union over the decision to close a particular facility
-Or relocate if the move involves a basic change in nature of the employers operation
-Illegal for an employer to refuse to negotiate w/ a certified union over the employers decision to relocate a union plant to a dif. location
-Compensation for the termination of employment (severance pay) in the event of a plant shutdown

Front 109

If relocation does not involve a basic change in the nature of an operation, management must bargain over the decision unless it can show that (4things)

Back 109

1. the work performed at the new location varies significantly from the work performed at the former plant
2. the work performed at the former plant is to be discontinued entirely and not moved to the new location
3. the move involves a change in the scope and direction of the enterprise
4. labor costs were not a factor in the decision

Front 110

Parites engaged in colle tive bargaining often claim that te other side is not bargaining in good faith as required by law.
Who is obliged to bargain in good faith?
Result of not bargaining in good faith w/o justification?

Back 110

both employer and union
-do not have to reach an agreement

Front 111

What are some practices that are typically deemed to not be in good faith?

Back 111

-Excessive delaying tactics
-Making a single overall contract offer on a take-it-or-leave-it basis
-Engaging in a campaign among workers to undermine the union
-Constantly shifting positions on disputed contract terms
-Sending representatives who lack authority to commit the company to a contract

Front 112

Result of not bargaining in good faith w/o justification

Back 112

-A ULP has been committed and the other party may petition the NLRB for an order requiring good faith bargaining, but NLRB does not have the authority to require a party to agree to any specific contract terms

Front 113

The law does not________ in collective bargaining
Even when _____
When parties cannot reach an agreement, an ____ has been reached and the union may call a _____ to pressure the employers into making an agreement

Back 113

require parties to reach an agreement
they bargain in good faith
impasse, strike

Front 114

when unionized workers leave their jobs and refuse to work

Back 114

strike
-striking workers do not get paid
-most strikes are "economic strikes": when union wants a better contract

Front 115

The right to strike is guaranteed by the
Picketing is protected by
Who can picket
Employers are permitted to

Back 115

National Labor Relations Act
free speech guarantee of the 1st amendment
non-employees
hire replacement workers to substitute for striking workers

Front 116

A strike directed against someone other than the strikers employer such as he companies that sell materials to the employer

Back 116

secondary boycott

Front 117

occurs when a minority group of workers, perhaps dissatisfied with a unions representation, calls its own strike
-Only a union can call a strike, unauthorized by the certified union and is illegal

Back 117

wildcat strike

Front 118

80 day period that allows federal courts to issue injunctions against strikes that would create a national emergency
Provides time to encourage the settlement

Back 118

cooling off period

Front 119

Collective bargaining agreement between a union and an employer may have contained a clause in which the union agreed not to strike. The law permits the employer to enforce this ____ clause and obtain an injunction (warning/order) against the strike in some circumstances

Back 119

no-strike clause

Front 120

Occurs when the employer shuts down to prevent employees from working because they believe that a strike is imminent

Back 120

lockouts

Front 121

Once a union has been certified as the exclusive represntative of a bargaining unit, an employer must recognize and bargain in good faith and failure to do so

Back 121

results in an unfair labor practice
-Binds ALL EMPLOYEES in the bargaining unit
-If union loses over half of support then employer does not have to recognize it

Front 122

A newly elected representative needs to establish itself among the workers and to being to formulate and implement its programs. Therefore a matter of labor policy , a union is

Back 122

immune from attack by employers and from repudiation by the employees for a period of one year after certification

Front 123

illegal for employer to interfere with, restrain, or coerce employees in the exercise of their rights to form a union and bargain collectively
Result?

Back 123

Employers Interference in Union Activities
the NLRB or a reviewing court may issues a cease and desist order halting the practice
Company is typically required to post the order on a bulletin board and renounce its past unlawful conduct

Front 124

An employer can have no say in which employees belong to the union or which employees serve as union officers
Nor may supervisors or management personnel participate in union meetings
A company cannot give union workers pay for time spent on union activities b/c this is considered undue support for the union

Back 124

Employers Domination of a union

Front 125

Prohibits employers from discriminating against workers b/c they are union officers or are otherwise associated with a union

Back 125

Employers Discrimination against Union Employees
-difficult to prove

Front 126

-Restraint on an employees decision to participate in or refrain from participating in union activities
Ex:"we have a lot of power here; you had better join the union or you may lose your job"
-Using discipline in an improper coercive fashion

Back 126

coercion
-union practice declared as an unfair labor practice

Front 127

That taken by employees (non-union members) for their mutual benefit regarding wages, hours, or terms and conditions of employment
STILL PROTECTED BY NRLA
-including action taken by just one employee if the action will benefit many employees and had been discussed with other workers

Back 127

concerted activity
-Employee can be fired for walkouts/sitins if it is only one employee as long as it is concerted activity taken w/ assent to other workers

Front 128

Common cirumstance for nonunion activity
What does the NMRL authorize?

Back 128

concern over workplace safety
Employees can walk off the job if he/she has a good faith belief that working conditions are abnormally dangerous
Protected under federal labor law if the safety walk out is a concerted activity, other workers must be affected by the safety issue for the walkout to be protected under LMRA

Front 129

4 factors that entrepreneurs need to consider when deciding what type of business organization to choose

Back 129

1. ease and expense of creation
2. liability of the owner for obligations of the entity
3. tax considerations
4. need to raise and ability to raise capital

Front 130

a business owned and operated by one individual
more than 2/3 of U.S businesses

Back 130

sole proprietorship
-does not have to ask, just starts the business
-has employees
-does not require license unless you need a license to operate the business
-not a tax paying entity

Front 131

advantages of sole proprietorship (5 things)

Back 131

•Easy and inexpensive to form: no documents needed by gov, maybe a state license
•All profits to owner
•Owner has maximum degree of control
•Can establish tax-free retirement account
-only establishes personal income taxes (Social Security, Medicare) on the business profits which are reported as personal income
•Profits taxed once

Front 132

disadvantages of sole proprietorship

Back 132

•Unlimited personal liability: if cake makes someone sick, they are entitled to her pans and ingredients she uses to make the cake, even money she inherits from a dead relative
•Lack of continuity
•May be difficult to raise capital: there is no partnership with a spouse

Front 133

an association of two or more persons who carry on as co-owners of a business for profit

Back 133

Partnership
-has to be at least 2 or more persons, each person is an agent and each person is a principal
-there is a partnership whether or not it is declared by the members
-does not have to ask to start partnership
-does not include one time things like paining one house together
-can have employees
-all partners are liable: Principal is liable on for agent does with authority

Front 134

advantages of a (general) partnership (4 things)

Back 134

•Easy and inexpensive to form
•Partners share all profits unless they agree differently
•Somewhat easy to raise capital
•Tax advantages (business profits are taxed only once)

Front 135

disadvantages of a (general) partnership (2 things)

Back 135

•Personal liability!!! each partner has UNLIMITED personal liability for the acts of the other partners that were done in the course or partnership business
•Limited “life”: if one member of a 100 person partnership dies, a new partnership of 99 people must be formed

Front 136

A legal entity created by the state, whose assets and liabilities are separate from its owners.
How is it formed?
Owned by who?
Managed by? (2 positions)

Back 136

corporation
-has to ask state to start a corporation
-more sole proprietorships than corporations
Formed pursuant to statue
Owned by shareholders who have limited liability
Managed by (1) board of directors who are elected by shareholders (2) officers who are hired by the board of directors

Front 137

owners of corporations

Back 137

stockhoders aka shareholders

Front 138

....are elected by stockholders

Back 138

directors

Front 139

advantages of a corporation

Back 139

•Easy to transfer ownership
•Perpetual existence
•Shareholders/stockholders have limited liability

Front 140

disadvantages of a corporation

Back 140

•Forming a corporation can ONLY be done pursuant to state statute
•Double taxation
• “Owners” (shareholders/stockholders) do not directly
participate in management

Front 141

An arrangement in which the owner of a trademark, trade name, or copyright (ex, McDonald Corporation) licenses to others to the use of that trademark, trade name, or copyright in the selling of goods or services

Back 141

franchise
-involves two parties, franchisor and franchisee

Front 142

the company that sells a franchise

Back 142

Franchisor

Front 143

the purchaser of a franchise

Back 143

Franchisee

Front 144

A manufacturer (franchisor) licenses a dealer (franchisee) to see it's product
Often the distributorship will cover an exclusive
territory

Back 144

Distributorship
-type of franchise

Front 145

a franchisee operates under a franchisors trade name and is identified as a member of a select group of dealers that engage in the franchisor's business

Back 145

chain style business
-required to follow standardized or prescribed methods of operation
-obtain materials exclusively from the franchisor

Front 146

Franchisor transmits to the franchisee essential
ingredients or the specifications to make a particular
product, which franchisee will then market at wholesale or at retail in accordance w/ the franchisors standards

Back 146

manufacturing or processing plant

Front 147

The franchise contract can include provisions

Back 147

-Paying for the franchise: initial fee, lump sum for franchise license, pay for purchases from franchise
-Business premises (will franchisee lease or purchase?): If there's a new building, who is responsible for furnishings?
-Location (&whether franchisee’s territory is exclusive)
-Business structure (p-ship, LLC?), capital, record-keeping
*-Franchisor may SUGGEST the price at which to sell the product, but mandating prices might violate antitrust laws , may require certain supplies to be purchased
-Quality controls (franchisor may establish & enforce): Day to day operations left up to franchisee, franchisor can supervise and control to protect the franchises name and reputation
-Termination: most franchise agreements say termination must be for cause death or disability of franchisee agreement
Or failure to meet specified sales quotas
Preceded by notice to franchisee

Front 148

3 advantages of limited liability company

Back 148

1. LLCs w/ 2 or more members may elect to be taxed as a corporation or as a partnership
2. like shareholders in corporations, LLC members have limited liability
3. Members can participate in management

Front 149

3 disadvantages of limited liability company

Back 149

1. must be properly formed, pursuant to statute
2. non uniformity in state statues mean uncertainty as to personal liability
3. there are often restrictions regarding transfer of ownership

Front 150

Limited liability company (3 things)

Back 150

•Is a relatively new creature of state statute
•Is a hybrid entity that can be taxed like a
partnership, while offering owners the limited
liability of a corporation (can lose only business assets
•Is composed of 1 or more owners (called
member/s), who must file articles of
organization with the appropriate state authority

Front 151

3 advantages of LLC's

Back 151

•LLCs with 2 or more members can elect to be taxed as corp or p-ship
•LLC members might have limited liability
•Flexibility in management/operations

Front 152

3 disadvantages of LLC's

Back 152

•Must be properly formed, pursuant to state
statutes (which vary)
•Non-uniformity in state statute mean uncertainty
as to personal liability
•Often restrictions on transfer of ownership

Front 153

•Is a product that results from intellectual, creative processes
•The U.S. Constitution specifically authorizes
Congress to regulate this area

Back 153

intellectual property

Front 154

A grant from the government giving the exclusive
right to make, use or sell his invention for a set
period of 20 years from the date of filing the application

Back 154

patent
-First person to invent a product or process gets the patent rights as opposed to first person to file for a patent
-designs as opposed to inventions are given for 14 years
-Almost anything is patentable except the laws of nature, natural phenomena and abstract ideas like algorithms

Front 155

A distinctive mark, motto, device or emblem that a
manufacturer stamps, prints, or otherwise affixes to
the goods it produces so they can be identified on
the market and their origins made known

Back 155

trademark
-cannot trademark generic terms

Front 156

The exclusive right of an author to publish, print or
sell a product of his/her intellect for a certain period
of time

Back 156

copyright
-Fair Use Doctrine: permits one to reproduce copyrighted material w/o paying royalties, *for purpose of teaching*, research, scholarship, news reporting, commentary and criticism

Front 157

Information or process that gives a person/business
an advantage over competitors who don’t have
access to that information or process
Ex: customer lists, plans, research and development, pricing information, etc.

Back 157

trade secrets
-extends to ideas and their expressions
-requires no registration
-well suited for software

Front 158

How to protect a patent

Back 158

register it with the U.S. Patent & Trademark Office

Front 159

How to protect a trademark

Back 159

can register with 1 or more states or with the U.S. Patent & Trademark Office
OR can have (prior) use sufficient to warrant Common law protection

Front 160

How to protect a copyright

Back 160

Works which are created are usually given automatic copyright protection for a certain period of time; they can also be resisted with U.S. Copyright Office

Front 161

Generally, common law will protect an employer from disclosure of trade secrets by a former employee

Back 161

trade secrets

Front 162

What 3 things can be patented?
What 1 thing cannot be patented?

Back 162

product, process, design
idea

Front 163

in order to obtain a patent, a product must be

Back 163

useful
novel
non-obvious

Front 164

“The Congress shall have power to…promote
the progress of sciences and useful Arts, by
securing for Limited times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries”

Back 164

U.S. constitution, Section 8