ER acted to fill a position, the individual followed standard procedures to submit information, and the indiviudal indicated an interest in the position

inevitable disclosure

a court may prohibit a former EE from working for an ER's competitor if the ER can show the former EE will disclose a trade secret by virtue of his/her position

gender, religion, race, color, national origin

ER, unions, joint labor and management committees of 15+ EE adn government ERs must comply

EEOC filed within 180 days; federal EEs must file within 45 days

706 agency filed within 300 days

all african-americans born in the US are citizens ensuring them the right to make and enforce contracts

cannot deprive any person of life, liberty, or property without due process of law. Cannot deny someone their rights based on race

EEOC does not handle these claims, unlimited damages

1) The victim belongs to a protected group

    2) The victim was subjected to unwelcome harassment

    3) The harassment was based on a protected characteristic

    4)The harassment affected a term, condition, or privilege of employment

    5) The victim’s employer knew or should have known of the harassment and failed to take prompt immediate action

The Age Discrimination in Employment Act (1967) was enacted to promote the employment of older people based on their ability rather than age, prohibiting arbitrary age discrimination. ADEA applies to people over 40 in both the private and public sectors, unions and employment agencies, and foreign ERs with 20 or more workers in the US.

2 types of discrimination exist:

disparate treatment and disparate impact.

under the method of proof set down in McDonnell Douglas Corp v Green:

• the EE is in the protected class

• EE suffered adverse employment action

• EE was doing the job well enough to meet the ER’s legitimate expectations (qualified for the position)

• others not in the protected class were treated more favorably

• a facially neutral policy or rule is imposed by an ER

• it has a different effect on an older group of workers

• no intent to discriminate is necessary

An ER can defend against a disparate impact case by using this

reasonable factors other than age

An ER can terminate EEs on the basis of seniority and economic concerns so long as the economic reasons do not serve to obscure the fact that age was the true determinant.

Age discrimination can be proven even under a RIF (reduction in force) if the ER:

• refuses to allow the discharged or demoted EE to bump others with less seniority

• hires younger workers when the job becomes available after the EE was discharged or demoted at the prior salary of the older worker

The 6th circuit recognizes a cause of action under ADEA based on hostile environment age harassment thanks to Crawford v Medina General Hospital which established these prima facie requirements:

• EE is 40 or older

• EE was subjected to harassment based on age, either through words or action

• the harassment had the effect of unreasonably interfering with the EE’s work performance and creating an objectively intimidating, hostile, or offensive work environment

• there exists some basis for liability on the part of the ER

The 8th and 11th Circuits along with some district courts have applied this same theory

• job applications, resumes, or other employment inquiries in answer to ads or notices, plus records about failure or refusal to hire

• record on promotion, demotion, transfer, selection for training, layoff, recall, or discharge

• job orders given to agencies or unions for recruiting personnel for job openinings

• test papers

• results of physical exams that are considered in connection with any personnel action

• ads or notices relating to job openings, promotions, training programs, or opportunities for overtime

• The age limit is reasonably necessary to the essence of the ER’s business; and either

• All or substantially all of the individuals over that age are unable to perform the job’s requirements adequately; or

• Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.

• protects against discrimination of public employees and employees of companies with federal contract.

• Section 503 further extends the act to all business receiving federal aid.  Was insufficient in protecting private employees.

Any contractors with 50 or more employees or over $50,000 in contracts is required to institute an affirmative action plan promoting the hiring promotion of disabled worker

extended protection against disability discrimination to private sector employees

In 1998 the ADA was found to be “insufficient and inadequate”.  Much of the criticism was due to the language of the legislation so in  2008 the ADAAA addressed problems with the ADA by broadening and clarifying language within the ADA

• GINA was passed in 2008 and prohibits employers with over 15 employees from requesting genetic testing and or using genetic information in employment actions

• The act is extremely broad in order to cover family histories and several privacy provisions in order to protect the employee. 
  

• protect a government EE’s right to privacy in that the state may not restrict one’s rights unless it is justified.

• Regulates the release of personal information about federal EEs by federal agencies.  Specifically, but for 11 stated exceptions, no federal agency may release information about an EE that contains the means for identifying that EE without the EE’s prior written consent.

• publicating, or bringing to light, information
• intrusion into seclusion (oral questions for condition of employment, providing other info, requiring annual medical exams, asking others for info, and going into private places belonging to EE)
• public disclosure of private facts
• publication in a false light
• breach of contract for invading privacy
• defamation

• There were false and defamatory words concerning the EE,

• Negligently or intentionally communicated to a third party without the EE’s consent (publication), and

Resulting harm to the EE defamed.

• established the right of employees to form unions, to bargain collectively, and to strike

• interfere with, restrain, or coerce employees in the exercise of their rights
• interfere with the formation of a labor organization
• discriminate in the hiring or tenure of employment or discourage membership in a labor organization
• retaliate for filing charges or testifying under the act

1. determine type of union: industrial or craft
2. Determine issue or community of interests
3. bargaining unit
4. unionize by either sign a sufficient number of authorization cards, vote in a union during a union representation election, or NLRB orders ER to bargain with a union
5. elect shop steward

• National Labor Relations Board

• independent federal agency that enforces labor laws in the private sector

• composed of five members

• hear appeals from administrative law judge decision of the agency on issues of unfair labor practices and union elections.

• Civil Service Reform Act of 1978 established the Federal Labor Relations Authority to administer federal sector labor law

• agency is thought of as the federal counterpart to the private sector's NLRB

• federal restrictions prevent federal union from conducting direct bargaining over wages and benefits and from striking

Fair Labor Standards Act: The act sets standards for the minimum age for workers, minimum wages they can make, and the rate at which they must be paid if they work over a certain amount of time during a workweek. This act prohibits pay differentials based solely on gender.

all ee’s of the business will be covered if the business is engaged in interstate commerce and meets a minimum gross annual income requirement of $500,000. This law applies to both full and part time ee’s.

National Institute for Occupational Safety and Health, the research arm of OSHA, which conducts research on workplace health and safety and makes recommendations to the secretary of labor that, if approved, may become the standards of conduct in a certain industry.

The act guarantees ee who have been on the job at least a year up to 12 weeks of unpaid leave per year for a birth, adoption, or care of sick children, spouses, or parents (or their own serious illness) and the same or an equivalent job upon their return.

er with 50 or more ee’s within a 75-mile radius. EE must have worked for their er at least one year and for at least 1,250 hours during the 12 months.

Employee Retirement Income Security Act

Designed to encourage cautious, careful mgmt of retirement funds by er’s who were receiving tax benefits for doing so. An er that offers welfare benefits or retirement plans to its ee is subject to certain requirements under it, which covers most private-sector ee benefit plans.

In general, it does not cover plans established or maintained by governmental entities or churches, nonresident aliens, or plans for independent contractors.

retirement plan where the benefit payable to a participant is defined up front by a formula, the funding of which is determined actuarially.

• loyalty - they must discharge their duties solely in the interests of plan participants

• exclusive purpose - must make decisions with the exclusive purpose of providing benefits under the plan and defraying the reasonable expenses under the plan

• prudence - must exercise the care and judgement one would expect from a prudent person pursuing similar objectives under the same circumstances

• diversification - must invest plan assets in a diversified manner to avoid large losses

• compliance with the plan documents - required to administer the plan in a manner that is consistent with the governing documents

The Consolidated Omnibus Budget Reconciliation Act of 1985 addresses the problem of an EE losing workplace health care coverage when the EE stopped working or switched jobs.

applies to a group of health care plans provided by ERs with 20 or more EEs in the previous calendar year, and gives participants and beneficiaries the right to maintain, at their own expense, coverage under their health plan that would be lost due to a change in circumstance such as termination or divorce.

It also requires ERs to extend EE health insurance coverage for up to 18 months up to 102% of the rates originally charged while the individual still worked for the ER if the EE is terminated or loses benefit coverage due to reduced hours.

The Health Insurance Portability and Accountability Act is a federal law that amended ERISA in 1996 in order to promote standardization and efficiency in the health care industry.

It protects individuals from discrimination based on their health status by restricting exclusions from coverage on the basis of pre-existing medical conditions.  

created a uniform system of processing, retaining, and securing health care information by encouraging technology use, mandating standardization of health-related transactions, and promoting security precautions to maintain the privacy of health information.  

Fundamentally, it protects the privacy of individuals with respect to their health care data and the sharing of it.