Employment Law

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Generally, a person who contracts with a principal to perform a task according to her or his own methods, and who is not under the principal's control regarding the physical details of the work

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independent contractor

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the imposition of liability on one party for the wrongs of another. liability may extend from an employee to the employer on this basis if the employee is acting within the scope of her or his employment at the time liability arose

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vicarious liability

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Under this test, a persuasive indicator of independent-contractor status is the ability to control the manner in which the work is performed

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common-law agency test

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List of 20 factors to which the IRS looks to determine whether someone is an independent contractor. The IRS compiled this list from the results of judgments of the courts relating to this issue

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IRS 20-factor analysis

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An employment relationship where there is no contractual obligation to remain in the relationship; either party may terminate the relationship at any time for any reason, as long as the reason is not prohibited by law such as for discriminatory purposes

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at-will employment

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A legal concept intended to ensure that no individual lawfully do that which has a tendency to be injurious to the public or against the public good. It is undermined by anything that harms a sense of individual rights.

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Public policy

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implied contractual obligation to act in good faith in the fulfillment of each party's contractual duties

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covenant of good faith and fair dealing

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a contract that is not expressed, but instead is created by other words or conduct of the parties involved

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implied contract

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money damages given to a party to compensate for direct losses due to an injury suffered

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compensatory damages

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money damages designed to punish flagrant wrongdoers and to deter them and others from engaging in similar conduct in the future

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punitive damages

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occurs when the employee is given no reasonable alternative but to terminate the employment relationship; considered an involuntary act on the part of the employee

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constructive discharge

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an agreement signed by the employee agreeing not to disclose employer's confidential information or enter into competition with the employer for a specified period of time and/or within a specified region

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noncompete agreement

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the selection of a neutral or third party to consider a dispute and to deliver a binding or nonbinding decision

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arbitration

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the person who brings an action alleging violation of title VII

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claimant or charging party

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Title VII requires that certain documents must be maintained and periodically reported to the EEOC

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recordkeeping and reporting requirements

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State agency that handles EEOC claims on the basis of a work-sharing agreement with the EEOC

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706 agency

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attempting to reach agreement on a claim through discussion, without resort to litigation

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conciliation

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person to whom an EEOC claim is directed, usually the employer

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respondent or responding party

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provisions making it illegal to treat an employee adversely because the employee pursued his or her rights under Title VII

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antiretaliation provisions

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EEOC finding that basis for illegal discrimination exists

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reasonable cause

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EEOC finding that no reasonable basis for illegal discrimination exists

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no reasonable cause

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letter given by EEOC to claimants permitting them to pursue their claim in court

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right-to-sue letter

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going through the established EEOC administrative procedure before being permitted to seek judicial review of an agency decision

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exhaustion of administrative remedies

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Employee of EEOC who reviews complaints for merit

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EEO investigator

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court review of an agency's decision

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judicial review

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complete new look at administrative case by the reviewing court

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de novo review

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agreement an employee signs as a condition of employment requiring that any workplace disputes be arbitrated rather than litigated

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mandatory arbitration agreements

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money awarded for time employee was not working (usually due to termination) because of illegal discrimination

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back pay

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money awarded for time a claimant would have been in a job had illegal discrimination not occurred to keep him or her out

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front pay

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seniority that dates back to the time the claimant was treated illegally

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retroactive seniority

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attempts to put claimant in position he or she would have been in had there been no discrimination

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make-whole relief

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money awarded to compensate the injured party for direct losses

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compensatory damages

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money over and above compensatory damages, imposed by court to punish defendant and to act as a deterrent

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punitive damages

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effect of facially neutral policy is deleterious for Title-VII group

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disparate / adverse impact

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treating similarly situated employee differently because of prohibited title VII factors

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disparate treatment

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alleging facts that fit each requirement of a cause of action

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prima facie case

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permissible discrimination if legally necessary for employer's particular business

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bona fide occupational qualification

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workplace policy applies equally to all appropriate employees

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facially neutral policy

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factor used to weed out applicants from the pool of candidates

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screening device

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minority must do at least 80 percent or 4/5 as well as majority on screening device or presumption of disparate impact arises, and device must then be shown as job related

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4/5 rule

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defense to a disparate impact case based on the employer's need for the policy as a legitimate requirement for the job

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business necessity

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intentional inclusion of women and minorities in the workplace based on a finding of their previous exclusion

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affirmative action

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prohibit a federal contractor from further participation in government contracts

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debar

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a government contractor's plan containing placement goals for inclusion of women and minorities in the workplace and timetables for accomplishing the goals

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affirmative action plan

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significantly fewer minorities or women in the workplace than relevant statistics indicate are available

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underrepresentation or underutilization

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staffing patterns showing organizational units, relationship to each other, and gender, race, and ethnic composition

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organizational profile

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combines job titles with similar content, wage rates, and opportunities

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job group analysis

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minorities and women in a geographic area who are qualified for a particular position

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availability

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percentage of women and/or minorities to be hired to correct underrepresentation based on availability in the geographic area

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placement goal

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evaluations of mid- and senior- level employee advancement

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corporate management compliance evaluation

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affirmative action ordered by a court rather than arising from executive order

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judicial affirmative action

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lawsuit or claim brought by majority member who feels adversely affected by the use of an affirmative action plan benefitting a minority on female

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reverse discrimination

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government employee is illegallly discriminating against another during performance of his or her duties

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under color of state law

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employment discrimination based on gender and some other factor such as marital status or children

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"gender-plus" discrimination

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the assumption that most or all members of a particular gender must act a certain way

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gender stereotypes

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A title VII action for pay discrimination based on gender, in which jobs held mostly by women are compared with comparable jobs held mostly by men in regard to pay to determine if there is gender discrimination

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comparable worth

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policies an employer institutes to protect the fetus or the reproductive capacity of employees

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fetal protection policies

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sexual harassment in which the harasser requests sexual activity from the harassee in exchange for workplace benefits

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quid pro quo sexual harassment

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sexual harassment in which the harasser creates an abusive, offensive, or intimidating environment for the harassee

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hostile environment sexual harassment

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harassing activity that is more than an occasional act or is so serious that it is the basis for liability

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severe and pervasive activity

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viewing the harassing activity from the perspective of a reasonable person in society at large (generally tends to be the male view)

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reasonable person standard

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viewing the harassing activity from the perspective of a reasonable person experiencing the harassing activity including gender specific sociological, cultural, and other factors

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reasonable victim standard