Term
Occupational Safety and Health Act Agencies |
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Definition
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Term
Occupational Safety Health Administration |
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Definition
OSHA to prevent illness and injury |
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Term
National Institue for Occupational Safety & Health |
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Definition
NIOSHA the research arm of OSHA- gives research assistance to OSHA |
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Term
Occupational Safety and Health Review Committee |
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Definition
OSHRC OSHA review committee- involved in hearing contested violations |
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Term
Do the costs of an OSHA standard have to bear a reasonable relationship to their benefits? |
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Definition
NO! you must follow standard- if it's too exensive to implement- too bad! |
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Term
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Definition
anyone who offers employment must furnish their employees a workplace that is free from recognized hazards that cause or likely to cause serious injury or death |
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Term
Does following a specific OSHA standard guarantee an employer hasn’t violated the general duty clause? |
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Definition
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Term
What are OSHA’s record keeping requirements? |
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Definition
1) OSHA Form 301 Injury and Illness Incident Report- this must be filled out for OSHA, state law, insurance (workers’ comp). anytime there is an accident where medical attn is needed.
2) Form 300 Log of Injury- keep a log of every incident- keep these logs for FIVE years
3) OSHA 300A Forms- must be posted every February, and must stay up for the entire year. All the accidents from 2007 must be summarized on this form for 2008. |
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Term
Under what circumstances can an employee refuse to perform an assigned task? |
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Definition
circumstances are very limited- task has possibility of serious injury or death – insufficient time to go to OSHA- you should try to get the employer to do something first |
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Term
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Definition
#1 Ask for Identification |
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Term
What are the instances when an OSHA inspector won’t need a warrant to inspect a work place? |
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Definition
a) immediate danger b) public can see what they want to inspect |
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Term
OSHA Citations and Penalties |
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Definition
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Term
Why was ERISA passed? 1974 |
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Definition
| Employee Retirement Income Secretary Act o Passed in response to numerous instances of pension fund mismanagement and abuse. o Retired employees had their pension benefits reduced or terminated because their pension plan had been inadequate funded or depleted through mismanagement |
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Term
What two types of employee benefit plans are covered under ERISA? |
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Definition
| o Welfare plans: Provide participating employees and their beneficiaries with medical coverage, disability benefits, life insurance, vacation pay o Pension plans (main focus is pension plans) Guaranteed income for the rest of your life. Seeks to ensure all employees covered by pension plans receive the benefits due to them under the plans |
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Term
Are employers obligated to provide pension plans for their employees? |
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Definition
| o No, not under ERISA, however if a pension plan is offered, ERISA sets minimal standards and requirements that the pension plan must meet |
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Term
What is a "qualified" plan? |
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Definition
| o Complying with ERISA standards. o As an employer, they get a tax break from any cost incurred is deducted from companies income. If an employer does not follow ERISA rules, you will be taxed |
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Term
What is a fiduciary? What standard of care are they held to? |
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Definition
| o Any person exercising discretionary authority or control respecting the management of the benefit plan, or disposition of plan assets o Someone who has power of attorney, entrusted to spend that persons money wisely and in their best interest o Someone who is entrusted with your assets and they will be cautious and careful on how they spend your money o Standard of Care pg 265: Must act with the care, skill, prudence, and diligence that a prudent person acting in a like a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. Basically, entrusting someone who will be careful and invest your money wisely |
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Term
What is the difference between a DEFINED BENEFIT PLAN
and a DEFINED CONTRIBUTION PLAN? |
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Definition
The difference between the two is with a benefit plan, you are guaranteed to get the money |
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Term
What is the role of the PBGC? |
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Definition
| Pension Benefit Guaranty Corporation o They collect a premium from employers offering such pensions to provide and insurance fund. o If an employer is unable to meet the payment requirements of a defined benefit plan, the PBGC will pay monthly benefits to the participating employees to a maximum monthly amount |
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Term
What does it mean to be vested in a plan? |
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Definition
| Vesting means that a plan participant has gained a non-forfeitable right to some plan benefit |
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Term
What are the minimum participation requirements set by the IRC for a qualified retirement plan? |
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Definition
| o You have to work there for at least a year o have to be at least 21 |
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Term
A pension plan must satisfy one of two coverage tests. What are these tests called? Give an example of how a plan could satisfy each? |
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Definition
| o Compensated: making less than 100 grand o Highly Compensated: making more than 100 grand o You can’t set up a plan where only highly compensated people |
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Term
What happens to an employee’s benefits in a qualified plan when they leave a company before they are fully vested? |
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Definition
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Term
Give examples of two vesting schedules that plans could adopt. |
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Definition
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Term
How would the benefits of a plan be impacted if it is integrated with social security? |
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Definition
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Term
Why is it important for a pension plan to meet its minimum funding standards? |
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Definition
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Term
Who cannot be given preferential treatment if a plan is to remain qualified? |
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Definition
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Term
What is a summary plan description? |
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Definition
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Term
Can an employer terminate a pension plan? |
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Definition
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Term
Social Security- Original Passage |
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Definition
retirement income, survivors of deceased workers, disability income a. Original passage 1965- became a health insurance program |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
What is the early and normal retirement age? |
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Definition
early retirement: 62 for partial benefits normal: 65 for full benefits |
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Term
Medicare- Who is eligible? |
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Definition
Hit 65, have 40 credits, you get Medicare
it’s not free- and you will pay more if you don’t have 40 credits |
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Term
Medicare-> Part A – Part D |
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Definition
Part A- hospitalization Part B- doctor visits, outpatient- with deductibles Part C- Part D- began 2006, covers 75% of Drug Costs |
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Term
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Definition
Health insurance for poor people |
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Term
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Definition
no fault insurance- employer IS liable |
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Term
What are the exemptions to employer defenses? |
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Definition
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Term
What does it mean for an injury to be work related? |
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Definition
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Term
Workers' Comp- What is the coverage? |
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Definition
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Term
How are employer premiums figured? |
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Definition
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Term
How is an experience rating determined? |
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Definition
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Term
Unemployment Compensation |
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Definition
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Term
Unemployment Comp- How is an employer charged for this? |
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Definition
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Term
Unemployment Comp- What type of separations is the employer responsible for? |
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Definition
Involuntary- if somebody quits, have them put that in writing, signed and dated |
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Term
What is willful misconduct? |
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Definition
Willful disregard for the employer’s best interest |
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Term
When is a voluntary quit a constructive discharge? |
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Definition
When you create an environment to the person MUST quit [a forced quit] |
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Term
What is the employment at will doctrine? |
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Definition
Both the employee and the employer are free to unilaterally terminate the relationship at any time and for any legally permissible, or for no reason at all
o 80% of workers in US work under this doctrine
o There is no recourse that you can take, nothing the law can do
o Used in the 19th century
o This doctrine in its raw form holds that an employee who has not been hired for an express period of time (say a year) can be fired at any time for any reason, or for no reason at all.
o Now, state and federal laws have narrowed this sweeping doctrine in many ways
NLRA forbids firing employees for engaging in protected concerted activities
Title VII forbids discharge on the basis of race, color, gender, creed, or national origin
ADEA protects older workers
OSHA makes it illegal to fire an employee in retaliation for filing a safely complaint |
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Term
(Employment at Will Doctrine) Are there any exceptions? |
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Definition
o 4 major exceptions:
Whistle blowing: employee reporting an employer for calling out safety/health problems
Abusive discharge: make things so intolerable, any reasonable person would quit
• Extreme and outrageous conduct by employer made to create emotional distress
Express or implied guaranteed of continued employment
• Promising a job to an employee, NEVER EVER GUARANTEE AN EMPLOYEE A JOB, if you do, you can never make them an employee at will
Implied covenant of good faith and fair dealing
• If an employer violate covenant of good faith and fair dealing
o They cannot say it had anything to do with a protected status (title VII, etc) |
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Term
How have employers reacted to the employment at will doctrine? |
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Definition
| o Take employment handbooks and “sanitize them” clean them up so there is no evidence of not being an employee at will. By working there, you are an employee at will |
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Term
Invasion of Privacy – when is this right protected and not protected in the workplace? |
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Definition
o Zero tolerance in the workplace,
o 4 distinct species of the tort of invasion of privacy have emerged over the years since Brandeis and Warren set the stage for the tort’s appearance:
Intrusion upon plaintiff’s seclusion of solitude or into his or her private affairs
Public disclosure of embarrassing private facts about the plaintiff
Publicity, the effect of which is to place the plaintiff in a “false light” in public
Appropriation of the plaintiff’s name of likeness, without his or her permission, to the pecuniary advantage of the defendant |
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Term
Email? Phone conversations? Lockers? Handbags? Medical Records? |
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Definition
o Can an employer look in your purse? A private employer with a well written search policy can look in your stuff (purse, lockers…)
o Medical records: HIPPA: medical privacy
o Cameras: Not in bathrooms!
o Phone conversations: Can the boss listen in on your conversations: can monitor calls if its work related, but you have to stop listening when the conversation becomes personal
o Email: you bet they can! It’s their computer; anything in there is fair game! |
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Term
What is business defamation? |
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Definition
| o False statement about a plaintiff, that is communicated to a third party that harms their reputation |
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Term
What is a qualified privilege? |
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Definition
| o Give someone a performance evaluation and in that evaluation you say they are on the verge of losing their job. Who can they show that to? Their boss only, not other employees |
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Term
What are noncompete agreements? Will courts uphold them? |
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Definition
o Asked to sign a noncompete agreement: says you won’t work for one of their competitor
o Can’t be unfair, can’t stop you from getting a job
o Common in news anchors
o Courts will generally favor them, if they’re written right
o You cannot reveal trade secrets; if they consider it confidential, you must too
o 3 things to be present in a noncompete:
Reasonable to time
• Reasonable to geography
• Can’t be unfair |
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Term
I-9’s and IRCA What are your responsibilities as an employer? |
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Definition
o About 12 million Illegal immigrants in the country today
7.5 million are working, about 5% of the workforce
o #1 area that they are hired in is eating and drinking establishments (26,000 people), next is lodging
o Employer obligation: verify whether they are eligible to work in the US or not. I-9s are used for this.
o ICE: Immigration and customs enforcement: People coming into this country illegally who are terrorists
o ICE used to be mainly concerned with immigrants coming in who were criminals.
o Social security match: Once you hire a person, you can email the government the name, social security number of everyone you hire, and they will tell you if the names and numbers match. |
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Term
Negligent hiring and retention. How can you avoid these liabilities? |
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Definition
o As an employer you could be guilty of negligent hiring if you hire an employee who intentionally commits a tort outside the scope of employment against a customer or public AND you should have known they were going to do it, cuz you hired them a/o kept them on
As an employer you are responsible for your employees. If you know they have a violent past and keep them on anyway, you are liable if they do something
Do CRIMINAL BACK CHECKS! |
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Term
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Definition
o Have to give a 60 day notice to your workers that you are going to close it down
o 2 ways to get around it: law won’t make you stay open if you physically can’t. employers offer employees incentive to stay until the end |
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Term
Can I polygraph an employee who’s cash drawer is missing $100? |
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Definition
| o Laws do not favor polygraph tests, because it’s a stress test, not a lie detector |
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Term
Federal Fair Labor Standards Act - passed by congress in 1938
- Administered by the Wage and Hour Division of the Employment Standards Administration of the United States Department of Labor
- local offices in Minneapolis and Madison
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Definition
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Term
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Definition
When there is a conflict between federal law and state law always apply law most favorable to employee |
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Term
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Definition
must be paid for hours worked in
excess of 40 hours per week The rate is One and one-half of the
employee’s regular rate of pay - No overtime is required for Holidays and Sundays
- No overtime is required for more than 8 hours in a day
- Each workweek must stand on its own
- An employee cannot waive the right to receive overtime
- There are additional exceptions, besides those that apply to minimum wage.
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Term
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Definition
Defined as giving employee time off in lieu of overtime
This is not available to private sector employers
Public employers may use it, but must give one and one-half hours of comp. time for every hour worked over 40 hours per week. |
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Term
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Definition
- There are a number of so called: “white collar”exemptions from overtime.
- Executive
- Administrative
- Learned Professional
- Creative Professional
- Computer
- Outside Sales
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Term
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Definition
Guaranteed OT rate bumped from $22,100 to $23,660No OT if over $100 K |
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Term
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Definition
Makes not less than $455 per week - Primary duty is management of the enterprise or a dept. of the same
- Directs the work of two or more employees in doing so
- Authority to hire or fire or recommend
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Term
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Definition
- Primary duty consists of office or non-manual work directly related to management policies or general business operations
- Work requires the exercise of discretion and independent judgment with respect to matters of significance
- Paid a salary of at least $455b a week
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Term
Learned Professional Exemption |
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Definition
- Besides salary test the employee must hold a position requiring knowledge of an advanced type in a field of science or learning customarily required by a prolonged course of specialized instruction and study
- Examples: law, medicine, nursing accounting, engineering, architecture, teaching and pharmacy
- Not exempt are paralegals,social workers and medical assistants
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Term
Creative Professional Exemption |
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Definition
Besides salary test, primary duty of performing work requiring invention,imagination,originality or talent in a recognized field of artistic or creative endeavor |
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Term
Computer Professional Exemption |
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Definition
- Includes computer system analysts, computer programmers, software engineers and other similarly skilled workers
- Application of system analysis techniques; design, test computer systems and programs; create operating systems or some combo
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Definition
Regularly engaged away from the place of business making sales or obtaining orders for service
Primary duty of making sales or obtaining orders for services
Inside sales are currently non - exempt
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Term
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Definition
| Will payment of OT defeat exempt status?May salary be reduced for sick leave?Can leave banks be reduced for partial day absences? |
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Term
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Definition
- Cannot accept “free labor”
- The work of all non-exempt employees must be paid for
- Cannot plead ignorance or look the other way;even if the employee “volunteers” their time
- We are responsible for what occurs in our workplace
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Term
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Definition
if employee reports to work at scheduled time and is required to wait until work is ready, this waiting time is compensable |
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Term
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Definition
if completely relieved of duty for at least 30 minutes, not compensable |
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Term
Recordkeeping Requirements |
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Definition
| Display official federal and state minimum wage postersFor non-exempt employees who work regular hours have them turn in a weekly signed log indicating they worked regular hours or how they deviated from that Keep payroll records for 3 years and earnings records for two years |
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Term
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Definition
| Display official federal and state minimum wage postersFor non-exempt employees who work regular hours have them turn in a weekly signed log indicating they worked regular hours or how they deviated from that Keep payroll records for 3 years and earnings records for two years |
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Term
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Definition
| Employee complaints are a reason for an auditCertain industries are targeted from time to timeIf problem is limited to one or two employees, a phone conciliation is heldIf the issue involves more employees but is fairly straightforward, the employer will be asked to conduct a self-auditIf the dept. conducts the audit this is a sign of more serious problems |
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Term
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Definition
| Backpay can be assessed for two years or three years if the violations are deemed “willful”Also, willful violations can result in a criminal proceeding by the department with fines up to $10,000 and/or imprisonment for up to 6 months |
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Term
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Definition
| If contacted by the department you have several choicesYou can work with them on your own Or have them work through your attorneyIn either event CONTACT your attorneyYou will need to cooperate with the department and give them access to both your records and your employeesDon’t be shocked at the level and amount of detail they will ask of you. Keep your cool! |
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Term
OLD AGE, SURVIVORS, DISABILITY INSURANCE |
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Definition
OASDI - Amended Social Security in 1965
- Provides:
- Retirement Income
- Survivors of Deceased Workers
- Disability Income
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Term
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Definition
1) imminent danger 2) death at the work place 3) complaint 4) because a particular industry has a high incident of employee accident 5) random search |
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Term
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Definition
A pension plan that ensures eligible employees and their beneficiaries a specified monthly income for life |
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Term
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Definition
| o If we terminate you, we do not have to get your 2 weeks’ vacation, because your actions were not in the best interest of the employer |
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Term
What is the rate for unemployment |
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Definition
Generally 50-67% of Earnings, based on highest base period quarter Maximum of 26 weeks Extended Benefits for Additional 13 weeks |
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Term
| 3 examples of employers who do NOT use AT WILL |
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Definition
o Public sector employees (government jobs)
o Union member, you work under a union contract
o Written employment contract (very few employees do, unless you are a professional athlete) |
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