CHAPTER 1 OVERVIEW OF EMPLOYMENT LAW

Sources of Employ. Law: Constitutions (4th amendment prohibiting unreasonable search and seizure); Statutes (Title VII); Executive Orders; Regulations (OSHA safety standards); Common law (case decisions)
Employment at Will In the absence of a contract promising employment for a specified duration, the employment relationship can be severed at any time for any reason not specifically prohibited by law
employee do not have any rights to be employed or retain their employment -default.
Substantive Employee Rights under Employment Law: Nondiscrimination and equal employment opportunity; Freedom to engage in concerted activity (UNIONS) and collective bargaining e.g. Federal labor
law: National labor rel; Minimum standards for terms and conditions of employment eg.OSHA (safety); FLSA (wage), FMLA-fam & med leave act (leave); Protection of fundamental rights; Compensation for certain
types of harm e.g wrongfully discharged, defamation, victims of employer negligence. Limitation period:NLRB (6months); Discrimination (300days)
Characteristics to determine which employment laws apply: law differ in terms of Public or private sector (govt can be sued or corp.); union or non-union; size of the firm (employees, revenue, coverageFLSA ($500K); Title VII &, ADA at least 15 employees;ADEA-20; FMLA-50; geographic location; government contracts; type of industry or occupation
Procedures for Enforcing Employment Laws: What options does an employee have?; Does the employee have the right to bring a cause of action or class action?; Where must it be brought and how quickly?;
Is there an administrative prerequisite?; Must formal notice be given and how quickly?; Must the employee exhaust internal dispute resolution procedures first?
Enforceability of Mandatory Arbitration Agreements: Mandatory arbitration agreements, requiring employees to submit their employment disputes to arbitration rather than bring suit in court, are generally
enforceable; The employee must agree, in writing; But like other contracts, arbitration agreements are subject to contract defenses; In some states, arbitration agreements will not be enforced if they are
unconscionable, both procedurally and substantively.
A contract is procedurally unconscionable if drafted by the party with greater bargaining power and presented on a take it or leave it basis without opportunity for negotiation or modification (Cell phone
contract)
A contract is substantively unconscionable if its terms are markedly unfair to the less powerful party, particularly by imposing limits and burdens on the less powerful party which are not shared by the other.
A poorly drafted arbitration agreement is likely to be unenforceable. If your firm decides to use arbitration agreements, avoid provisions like these: No selection of a neutral arbitrator; Employee pays excessive
fees; Remedies inferior to those granted by court; No minimum discovery process; Many restrictions placed on the employee, but few on the employer; Employer reserves the right to change the agreement at any
time
Some firms have tried to establish mandatory arbitration without gaining knowing consent, raising contract defenses. If your firm decides to use mandatory arbitration agreements, make certain that: They are in
writing; They clearly notify employees that they are waiving their right to sue; The employee understands the terms; The employee signs in writing to indicate acceptance of the agreement.
Because employment decisions can have consequences months or years after the events, HR managers should be careful to document decisions and the reasons for them at the time they occur. Such records
are useful evidence in the event of a claim or lawsuit, and can help your firm avoid liability.
Arbitration clauses in collective bargaining agreements (CBAs) do not bar those employees from going to court; Arbitration agreements do not prevent employees from bringing complaints to government
agencies like the EEOC, which may bring suit;
Remedies for Violations of Employment Laws: Under EEOC, possible remedies include attorneys fees, back pay, front pay, reinstatement, hiring, liquidated damages, compensatory damages and
punitive damages.
Role of Managers in Legal Compliance: To recognize, analyze and deal effectively with employment law issues; To put in place sound policies and practices that PREVENT legal problems from arising in first
place; To enforce compliance with established law and develop strategies for dealing with legal issues that are not clear; To know when to seek legal counsel.
CHAPTER 2 THE EMPLOYMENT RELATIONSHIP
If an employment relationship exists, for each employee, the employer must: Withhold income taxes from wages, and pay the employer's share of Social Security and Medicare taxes; Provide Workers
Compensation Insurance; Provide Unemployment Insurance.
Who is an Employee?: Yet, work is often performed for pay outside the traditional employer-employee relationship, by what are termed contingent workers; Distinguishing between employees and independent
contractors (ICs) is the central issue in determining who is an employee. Economic Realities Test Factors: Who has the right to control how, when & where the work is done?; Who provides tools, materials & other
resources for the work to be done?; Does the method of payment provide opportunity for profit or loss?; What is the duration of the working relationship?; Does the work require a special skill?; How integral to the
business is the work performed?; Overall, how dependent is the hired party on the hiring party? Individual Contractor: controls how, when and where work is done; provides own tools,materals,& supplies; paid a
specified sum for the work and has the opp. To profit by managing the work efficiently; engaged for short periods of time; performs work that is not integral to the hiring partys business; provides service to a number
of different hiring parties; distinct skills Common Law Test Factors: The extent of the hiring partys right to control the manner and means by which work is done; The level of skill required; The source for necessary
tools & materials; The location of the work; The duration of the work; The extent to which the hiring party has the right to assign additional projects; Who has control over when & how long to work; The method of
payment; The hired partys role in hiring and paying assistants; The extent to which the work is part of the regular business of the hiring party; Whether the hiring party is in business; Whether benefits of any kind are
provided to the hired party; The tax treatment of the hired party. While there is significant overlap between the tests: The Common Law test focuses on the right to control the worker; The Economic Realities test
focuses on the market for the contractors services, and whether the contractor is in business for herself
Smart Practice IC Agreements: Declaring someone to be an independent contractor does not make it so; The firm must give up the right of control over the worker; The firm should not have ICs doing work that is
central to the firms business or the same work as employees perform; The firm should closely review long term IC agreements and not assign new projects without renewing agreements.

A good IC Agreement should: Require that the IC supply his own tools, materials & equipment, and pay his own assistants and business expenses.; Document the firms payment of a flat fee, rather than hourly or weekly payment; Provide no
benefits, not even time off; Make it clear that the IC is free to offer his services to others.

Temporary Workers: If hired to do the same work as regular employees or kept on for a long time, they may become employees under the common law test, entitled to the same benefits
as regular employees; Rule: Employers should not employ temps on a long term basis, or hire them to do the work of regular employees.
Students and Interns: Graduate and teaching assistants who work for their universities are generally considered students and not employees; Student athletes are not employees;
However, a determination of status for employment law purposes does not necessarily compel the same conclusion for purposes of tax laws
Agency: Rule: Employers are responsible for the actions of their employees while they are acting within the scope of employment. Actions are within the scope of employment when
they: Relate to the work the employee was hired to perform; Take place substantially within the workplace and during working hours; Serve, at least partially, the interests of the employer.
When an employer confers authority to make influence employment decisions on managers, they are liable gor their action; Not been aware of employees action or action was contrary to
company policy is no defense; Employers needs to carefully select, train, monitor and review the actions of their employees, esp those responsible for HR decisions.
Agency Exception: Employers may also be liable for harmful actions of their employees that are outside the scope of employment if: The employer intended the harm to occur; The
employer was negligent or reckless in allowing the harm to occur; The harmful actions were aided by actual or apparent authority conferred on the employee by the employer.
Integrated ent: degree of interrelation; shared common mgmt. Centralized control of HR; common ownership or financial control
Joint Employers:shares in liability for violation of employees rights; in the FLSA, economic reality test is used for joint employers

CHAPTER 3 OVERVIEW OF EMPLOYMENT DISCRIMINATION (the constitution, fourteenth amendment promise equal protection )
Employment Discrimination: A limitation or denial of employment opportunity based on protected class characteristics of a person. Liability arises not from prejudice alone, but from its effects on employment
opportunities. Denial or limitation of employment is called adverse employment action
Protected Classes, Federal: Race/Color Title VII, Civil Rights Act, 42 U.S.C. 1981; Sex Title VII, Civil Rights Act, Equal Pay Act; National Origin Title VII, Civil Rights Act, Immigration Reform and Control Act;
Religion Title VII, Civil Rights Act; Citizenship Immigration Reform and Control Act; Age 40 & Over Age Discrimination in Employment Act; Disability Americans with Disabilities Act, The Rehabilitation Act;
Pregnancy Pregnancy Discrimination Act; Veterans Uniformed Services Employment & Reemployment Rights Act; Genetics information Genetic Information Nondiscrimination Act
Types of Discrimination: Disparate treatment - Intentional, unequal treatment; Adverse (Disparate) impact - Facially neutral policy has discriminatory impact; employer can discriminate by Failure to reasonably
accommodate - Applies to religion, disability only; Retaliation - To punish based on employees exercise of his legal rights
Types of Disparate treatment: Facially discriminatory policy or practice employee uses protected class as a basis for discrimination, but allegedly justified (sound business reason, based on a BFOQ; Reverse
discrimination - A misnomer typically meaning discrimination against a white male; Pretext - A false reason given to justify a discriminatory employment decision; Mixed motives Decisions based on partly legal,
partly illegal motives; Pattern or practice Statistical evidence reveals discrimination occurring over time; Harassment victim treated to inferior conditions becos of sex, race, etc
Elements of a Claim for Disparate Treatment: 1) Plaintiff must prove a prima facie case: Plaintiffs relevant protected class characteristic; Applied for the employment opportunity; The employment opportunity was
available; Plaintiff was qualified for it; Plaintiff was denied the opportunity; Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics 2) If Plaintiff proves a prima facie
case, then Defendant must produce evidence of lawful motive for the employment decision. 3) If Defendant produces such evidence, Plaintiff may rebut by: Providing evidence that casts doubt on Defendants
claimed motive, and/or; Providing other evidence supporting the claim of discriminatory motive
Elements of a Claim for Adverse Impact: 1) Plaintiff must prove a prima facie case: A neutral practice disproportionately limits the employment opportunities of a protected class of which plaintiff is a member;
The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. 2) If Plaintiff proves a prima facie case, then Defendant must prove that the challenged practice is job
related and consistent with business necessity. In age discrimination cases, the employer must show that the practice is a reasonable factor other than age. 3) If Defendant successfully defends the practice,
Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it. Does not apply in age discrimination cases.
Elements of a Claim for Retaliation: 1) Plaintiff must prove a prima facie case: Plaintiff engaged in protected activity or opposed discrimination; Plaintiff suffered an adverse employment action; There is a causal
link between the activity and the adverse employment action 2) If Plaintiff proves a prima facie case, then Defendant must prove a lawful, non-retaliatory motive for the decision. 3) If Defendant successfully defends
the decision, Plaintiff may rebut Defendants claims by: Providing evidence that sheds doubt on the credibility of Defendants stated motive; and/or providing other evidence that supports the claim that retaliation is
the most likely explanation for the adverse action.
Adverse impact examples: neutral requirement- other than protected class-selection criteria that disadvantage a protected class; weight, height, employment tests, language reqt, educational reqt

CHAPTER 4 RECRUITMENT, APPLICATIONS, AND INTERVIEWS

Recruitment: Assuring non-discrimination in hiring begins at the recruitment process; To determine whether discrimination has occurred, the firms applicant pool will be compared to the relevant
labor market - the protected class composition of people who are qualified for the type of work in question and reside within a reasonable recruitment area; Employers must use several recruitment
mechanisms to avoid discriminatory hiring. Recruitment mechanisms: Want ads and job announcements; Wording must be neutral; Employment agencies; May not discriminate on behalf of employer
clients; Nepotism, word of mouth hiring; Unless workforce is already diverse, tends to recruit similar employees

Recruiting Foreign Nationals: H1-B visas: Granted to persons in specialty occupations capped at 65,000; Require a bachelors degree or higher; Limits the employees stay to 6 years; Typically, such
applicants are systems analysts, engineers, accountants, etc; Employers must pay these workers the same pay and benefits as U.S. workers.; H-2 Visas: For foreign nationals who come to the U.S.
for temporary or seasonal work - H-2A visas are for agricultural or logging; 86,000 visas were granted in 2010; more than 1 million are needed; H-2B visas are for temporary workers in other industries
(but not nurses); Employers using H-2 visas must show that there are not enough U.S. workers, and these will not adversely affect the wages of U.S. workers.
Recordkeeping Requirements: Employers must retain: Applications & related records for at least 1 year after a hiring decision is made; Records regarding people who were hired until a year after
they leave employment; Data regarding the protected class characteristics of applicants for purposes of affirmative action and adverse impact
Pre-Employment Inquiries: Employers should not directly inquire about protected class characteristics (Example: asking age, whether U.S. citizen); Employers should not indirectly inquire about
protected class characteristics (Example: asking date of graduation, memberships, workers compensation claims filed); Employers who want to track protected class characteristics for affirmative
action purposes may do so by a voluntary reporting process; Avoid questions about requirements or criteria not equally applied to all job candidates, especially those related to gender (Examples:
questions re children, marital status, child-care arrangements); The answer to such questions are often received differently depending on whether the candidate is a man or a woman, which can lead to
a claim of disparate treatment or adverse impact; Also, in some states, marital status is a protected class characteristic; Avoid questions likely to produce adverse impact (Example: Prior arrests, type
of military discharge, weight); Even if an applicant looks like an unlikely candidate, do not discourage the applicant from applying; Employers are required to maintain records of applications, including
web applications; Application process must accommodate the disabled (Assist visually impaired with applications orally or by tape, provide wheelchair access); Employers should not seek medical
information, directly or indirectly, prior to a conditional offer of employment (Example: Disabilities, medical and psychological conditions, medical histories, medications taken, workers compensation
claims filed); BUT, notice it is NOT a requirement that employers must ask only job-related questions (The law requires only that the employer refrain from asking questions which may elicit information
which could be used to discriminate)
Elements of a Fraud Claim: Making of a false representation of a material fact; Party making statement knew it was false; Party intended the other to rely on the statement, and act accordingly; The
other was induced to act accordingly; The other was harmed by reliance on the false representation.
CHAPTER 5 BACKGROUND CHECKS, REFERENCES, AND VERIFYING
Background checks include: Contacting references; Verifying past employment; Verifying past military service; Confirming the candidate actually has degrees/licenses; Checking driving records;
Checking for criminal convictions; Examining credit reports
After hiring, the employer must obtain documentation verifying the employees right to work in the US. These activities raise legal issues, including: Negligent hiring; Defamation; Compliance with
Fair Credit Reporting Act; Compliance with Immigration Reform & Control Act
Under Respondeat Superior, employers are generally liable for harm to others caused by employees acting within the scope of their employment: Their actions relate to the kind of activities they
were hired to perform; The actions take place substantially within the workplace/during working hours; And serve the interests of employer
Employers have a duty to exercise reasonable care in carrying out certain activities. If they fail, they may be guilty of negligent hiring/training/supervision
Elements of a Claim of Negligent Hiring: 1.) A duty to others exists which requires an employer to take reasonable steps to avoid hiring unfit employees based on: - Foreseeability of harm to others if
unfit person is hired for a particular job. Knowledge of unfitness that employer had or should have had if proper hiring procedures were used. Public policy 2.) The employer fails to exercise the
proper degree of care and hires an unfit employee. 3) A third party is harmed or injured by the unfit employee. 4) The employers failure to exercise care is the proximate cause of the harm or injury.
Advice for Conducting Background Checks: - No particular measure is required in all cases, but employers should always follow their own procedures. Be especially wary of rush, last-minute hiring
decisions. Inconsistencies and gaps in information provided by applicants must be discovered and confronted. The detail of a background check will depend on the position to be filled. Employers
should document all attempts to gather information, even if those efforts are not successful. If you must hire without a background check, hire, do the check, and fire the employee if unfit
Criminal Records: - Failing to check for a criminal history may be clear evidence of negligent hiring. Distinguish between arrests and convictions. Distinguish between misdemeanors and
felonies. Criminal records are decentralized. Employers should use an investigative service and make sure the search is sufficiently broad. If the information indicates unfitness where there is
foreseeability of harm, applicants should not be hired. African Americans and Latinos are far more likely to be arrested or convicted, and the US imprisons far more citizens than other countries
Fair Credit Reporting Act: Applies to credit reporting agencies and other who do background checking. Employers must: Get a separate, written consent from the applicant to obtain his credit report.
Provide the applicant with a pre-adverse action disclosure prior to taking any adverse action, if based in part on credit report. Provide an adverse action notice.
Elements of a Claim of Defamation: - A statement is made that purports to be factual in nature. The statement is false or substantially false. The statement challenges the character, integrity or
ability of another person. The statement is published to a third party
Defenses to Defamation: Employers have a qualified privilege defense to a claim of defamation. This protection can be lost if: - The statement was made with malicious intent to harm the persons
reputation, or with reckless disregard for the truth, or if publication of the statement was overly broad.
Verifying Employment Eligibility: - Employers are prohibited from knowingly hiring or retaining unauthorized aliens, but employers with 4 or more employees may not discriminate in hiring or
termination decisions based on national origin and citizenship. With new hires, employer must complete I-9 to verify eligibility
CHAPTER 6 EMPLOYMENT TESTING
Drug testing is used: - Prior to hiring; - As part of periodic medical exams; - To verify that employees who have been through drug rehab are clean; - Upon observation of aberrant behavior that
create reasonable suspicion of drug use; - And randomly. There is no one rule that applies to whether an employer may use drug testing and under what circumstances. Drug testing laws vary from
state to state. Random drug testing by public employers is prohibited by the 4 th amendment. But public employers may drug test for safety-sensitive jobs or upon reasonable suspicion. Drug and
alcohol testing of employees in transportation-related jobs is required. The most common procedures required by state statutes are that employees must: - Be given written notice that drug testing is
required. Be given copies of the employers substance abuse and drug testing policy. Be given test results in writing. Be given an opportunity to explain the result if the test is positive. Employers
must: - Use licensed labs to analyze samples. Perform confirmatory tests, or allow employees samples for their own tests. Collect samples with due regard for employees privacy. Keep results of
drug tests confidential
Smart Practices for Drug Testing: - Notify employees if they are subject to drug testing. Notify employees of the circumstances under which drug testing will occur. Notify employees of the
consequences of testing positive. Carefully label specimens. Document chain of custody for samples. Respect the privacy of employees being tested. Use reputable labs. Use confirmatory
tests for positive results. Appoint a medical review officer to interpret results. - Provide rehab drug programs.
Under the ADA, an employer must not fail to promote, terminate, or otherwise discriminate against an employee who has undergone treatment for drug addiction and is no longer using drugs. The
inquiry must be whether the employee is able to perform the essential functions of the job, w/ or w/out reasonable accommodation
Medical examinations: - A medical examination is any procedure or test that seeks information about an individuals impairments or health, but which tests are medical exams is not always clear.
If a test is a medical exam, then it is covered by the ADA. Under the ADA, prior to making a conditional offer of employment, an employer is prohibited from requiring applicants submit to medical
exams. Medical exams following conditional offers of employment are unrestricted in scope, and may inquire into physical and mental health of applicants which are not job related. Medical exams
of current employees are limited to job-related inquiries. As a practical matter, medical exams should be the last tests performed in the hiring process.
Scored tests of Ability: - Scored tests of ability are designed to screen out candidates with undesirable traits or to hire those with desirable traits. They measure: intelligence, aptitude, specific skills,
work-related attitudes, personality traits. They must not be discriminatory
Examining Test Results: - To avoid discrimination, compare the protected class composition of an applicant pool to the group that passed the test. To determine the significance of the difference,
EEOC follows the four-fifths rule (not an absolute legal requirement).
Content Validity: - A test has content validity if it requires the performance of the same behaviors and skills as the job in question. Cant be used to validate tests of intangible traits (intelligence,
personality). Many jobs can be learned quickly. Testing that screens out people who could perform the job following minimal on-the-job training are not job-related and consistent with business
necessity
Advice for Employers about Content Validity: - Use content validation tests as much as possible. Do not use them to assess intangible characteristics (intelligence, personality). Do not use them
for tasks that could readily be learned on the job.
Criterion Validity: - Criterion refers to a measure of job performance. Criterion validation requires a demonstrated statistical association between performance on a test and performance on the job.
A typical measure of association is the correlation coefficient. A positive correlation indicates a link with job performance.
CHAPTER 7 HIRING & PROMOTION DECISIONS
Facially Discriminatory Policies: - Employers that base hiring and promotion decisions on protected class characteristics are engaging in disparate treatment discrimination. When they argue that it
is necessary for business reasons, this type of disparate treatment is termed a facially discriminatory policy or practice. A limited defense is a BFOQ. If an employer can establish a BFOQ, the
practice is legal.
Elements of a BFOQ: The employer must show: - That only persons with the specified protected class characteristics can do the job. That the job, as currently configured, is integral to the
operation of business
Grounds for a BFOQ: - Authenticity (actor in a movie) Public safety (female prison guards in female prison) Privacy
Sex-Plus Cases: - Discrimination may occur when neutral criteria are applied to some protected class groups, but not others
Sex stereotyping may be the basis for a claim of discrimination (Ex: Retailer required females to wear maternal smocks while males wore business attire)
Promissory Estoppel Elements: - One party makes an unambiguous promise to another. The recipient acts in reasonable reliance on the promise. Reliance is expected and foreseeable by the
one making the promise. The promised party is harmed by reliance on the promise.