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Law Test 3 CHAPTER 10Agency Law- the body of laws the govern the relationships created when one party hires another party to act on the hiring party’s behalf Agent- one who agrees to act and is authorized to act on behalf of another, a principal, to legally bind the principal in particular business transactions with third parties pursuant to an agency relationshipPrincipal- an agent’s master; the person from whom an agent has received instruction and authorization and to whose benefit the agent is expected to perform and make decisions pursuant to an agency relationship Understand agency law requires…Legal requirements for creating an agency Liability of a principal for the agent’s conductDuties and obligations of the parties -generally exists on the statutory level and is based on Restatement (Third) of Agency (a set of principles, issued by the American Law Institute, intended to clarify the prevailing option of how the law of agency stands)Classification of AgentsEmployee agents- individual employees who are authorized to transact business on behalf of the employer principal-principals are liable for the actions or omissions of employee agents independent contractor agent- one of the three broad categories of agents; includes, generally, anyone who performs services for a principal who has the right to control or direct only the results of the work and not the means and methods of accomplishing the result -not considered an employee -principal has generally no liability for actions and omissions of the independent contractor agent -attorneys, outside accountants, architects gratuitous agents- one of three broad categories of agents; includes, generally, anyone who acts on behalf of a principal without receiving any compensationThe agent is classified based on the amount of direction and a control that the principal has over the agent in terms of setting the agents work schedule and pay rate and determining the level of day-to-day supervision required Independent occupation or profession in which the agent has more than one customer or client (as in the case of accountants, attorneys, architects) indicates an independent contractor If the principal provides tools or heavy equipment to the agent at the workplace, this generally indicated that the agent is an employeeABC test- statutory standard used by many states to determine agency status The individual is free from direction and control The service is performed outside the usual course of business of the employerThe individual is customarily engaged in an independently establishes trade, occupation, profession, or business of the same nature as that involved in the service performedUber classifies all of its drivers as independent contractors because of the high level of flexibility that it gives its drivers.-in 2013, the drivers filed a class action suit claiming they were actually employees under California Labor Code and said they should receive worker protections and benefits -Uber settled the case and agreed to…1. provide drivers with a detailed list of rules for when a driver can be deactivated rather than being terminated 2. provide drivers with more information about their rating system3. create an appeals process for Uber drivers who have been deactivated because of a low rating 4. not deactivate drivers who regularly decline to accept requests for rides from passengers, a practice that previously would contribute negatively to a driver’s overall standing with the economy The IRS considers for tax purposes:Behavioral aspects of the agency The financial arrangements between principal and agentThe type of working relationship the parties have in terms of benefits and promises of continuing employment -Liability for Misclassification: can be severeOverview of an Agency Transaction-fiduciary relationship: a broad term embracing the notion that two parties may agree that one will act for the other party’s benefit with a high level of integrity and good faith in carrying out of the represented party Creation of an Agency Relationship Manifest- courts apply an objective standard to determine whether the principal intended that an agency be created -consent: courts apply an objective standard to determine whether the agent did in fact agree to the agency relationship Control- parties must have an understanding that the principal is in control of the agency Formalities- law does not require any formal expression of an agency relationship between the parties Overlay of Agency Law with other Areas of Law – agency law governs the agent’s authority to bind the principal to a third party-The law of agency operated in tandem with other areas of the law, especially contracts and torts.Liability of the Principal for Acts of the Agent Authority: power to bind the principal in a certain transaction actual authority- when the parties expressly agree to create an agency relationship or when the authority is implied based on custom or the course of past dealings president of a corporation is thought of as having implied powers to bind the corporation to virtually all contracts that she determines are in best interest apparent authority- source of the agent’s authority that occurs when there is an appearance of legitimate authority to a third party rather than express authorization by the principal can be difficult because it is a source of power not expressly authorized by the principal arises from the actions of a principal that lead a third party to believe that an agent has the authority to act on the principa’ls behalf ratification- retroactive source of the agent’s authority that occurs when the principal affirms a previously unauthorized act by either expressly ratifying the transaction of not repudiating the act Agent’s Contract Liability to Third Parties- and authorized agent who enters into a contract with a third party binds the principal to perform certain obligations, and the third party may legally enforce the contract against the principal Fully disclosed agency- type of agency in which the third party entering into the contract is aware of the identity of the principal and knows that the agent is acting on behalf of the principal in the transaction -agent has no liability; third parties have no legal recourse against the agent Partially Disclosed agency- type of agency relationship in which the third party knows that the agent is representing a principal but does not know the actual identity of the principal -both the principal and the agent might be liable for the obligations under the contract-indemnification: right of reimbursement from another for a loss suffered due to a third party’s act of default Undisclosed agency- type of agency relationship in which a third party is completely unaware that an agency relationship exists and believes that the agency is acting on her own behalf in entering a contract -agent is fully liable to perform the contractTort Liability to Third Parties Vicarious liability- liability that a supervisory party (typically an employer) bears for the actionable conduct of a subordinate or associate (such as an employee)Respondeat superior- a common law doctrine under which a principal (employer) is liable for the tortious action of the servant or agent (employee) when that act resulted in physical harm or injury and occurred within the agent’s scope of employment -if the employee’s misconduct causes physical harm to a third party’s person or property; the employer is liable for both the injury and any related economic losses-for principal to be liable for the employee’s tort…1. been related to her duties as an employee of the principal2. occurred substantially within the reasonable time and space limits 3. been motivated, in part, by a purpose to serve the principal -frolic: an exception to the respondeat superior doctrine that occurs when an agent, during a normal workday, does something purely for her own reasons that are unrelated to her employment -detour: conduct classified as a small-scale deviation that is normally expected in the workday and, therefore, is within the ambit of respondeat superior - “going-and-coming rule”: employers are generally not liable for tortious acts committed by employees while on their way to and from workintentional torts- thought to be outside the scope of employment, and, therefore, employers are not liable for such conduct unless the assault has a close connection to serving the principalnegligent hiring doctrine-requires employees to take reasonable steps to protect third parties, particularly customers and other employees, from harm at the hands of the employees especially where…Employees are required to have a high level of public contactEmployees are entrusted with caring for the sick, elderly, or other particular vulnerable populations Duties, Obligations, and Remedies of the Principal and Agent Loyalty- centerpiece of fiduciary obligation Obedience- duty to obey lawful instructions from the principal and cannot substitute her own judgement for the judgement of the principal Care- duty to act with due care (agent act in same manner conducting principal’s affairs as someone would conducting their own affairs)Disclosure- duty to keep the principal informed and disclose any and all relevant facts to the principal Accounting- duty to account: keeping records and data such as reimbursable expenses, checks or cash received on behalf of the principal, and any liabilities incurred in the course of the agent’s conduct -prohibition against intermingling the principal’s funds or possessionsPrincipal’s Remedies for Breach Rescission and Disgorgement- ability to rescind any transaction between the principal and agent; a court may also order the agent to return any funds earned as a result of the breaching conduct Unauthorized Acts of Agents- risk of loss from the unauthorized acts of dishonest agents falls on the principal that selected the agent Duties and obligations of the Principal to the Agent -the principal has a duty to reimburse and indemnify its agents Payments made or expenses incurred within the agent’s actual authority Payments made by the agents for the principal’s benefit but done without authority, so long as the agent acted under a mistaken good faith belief that he had the authority to actClaims made by third parties on contracts entered into by an authorized agent and on the principal’s behalfClaims made by third parties for torts allegedly committed by the agent if the agent’s conduct was within the agent’s actual authority or the agent was unaware that the conduct was tortious -principal must provide the costs of legal defense including attorney fees and any resulting liability settlement payment -does not have a duty to reimburse if expenses incurred were…1. outside the agent’s actual authority 2. from losses resulting from the agent’s negligence 3. from losses resulting from the agent’s intentional tort or an illegal act Agent’s Remedies for Breach-agent generally has the right to recover damages in court -most common breach occurs when the principals refuse to reimburse or indemnify the agent Termination of the Agency Relationship Express acts- acts by which an agency relationship is terminated; can be either simple communication of the desire to terminate the relationship, the expiration of a fixed term, or satisfaction of purpose -termination by the principal: revocation-termination by the agent: renunciation -legal power of termination is not synonymous with the legal right of termination -principal may terminate the agreement, but the termination may still be unlawful because the law did not give the principal the right to end agreement before mutual performance -can also be terminated by expiration -may be tied to a time period or an event termination through operation of law--agency relationship is terminated by the destruction of essential subject matter of the relationship -agency relationship is terminated automatically if either the principal or the agent dies, files for bankruptcy, or does not have the mental capacity to continue the relationship CHAPTER 11Employment-At-Will-Doctrine-deep seated common law principal that employers have the right to terminate an employee with or without advance notice and with or without just cause, subject to certain exceptions At will employee- any employee who is not a contractual employee; may be terminated at any time and for any reason except in cases where public policy is violated or the termination is legally discriminatory or is prohibited by statutory or common law exceptionsDoes not apply in cases whereEmployee has an expressed or implied contract Courts have fashioned a common law expectationThere is some specific statutory protection against job termination Express contracts- major exception to the employment-at-will ruleContractual employee- an employee who works under an agreement that defines when the employee begins employment and when the employment ends -employers may terminate the employee only for good cause-violation of workplace rule-commission of a criminal act in course of employment Labor ContractsCollective bargaining agreements (CBAs)- contacts that give rights to non-management employees -negotiated by a labor union on behalf of a group of employees -provide protection by prescribing a process that must be used by the employer before terminating an employeeImplied Contracts Manual or bulletin (such as an employee handbook) that is drafted and distributed by the employerOral promise made by an employer and which a reasonable person would believe extends protection against termination without cause -any contract theory, express or implied, must be based on the standards in contracts law for formation and performance of a contract Common Law Exceptions-Georgia, Florida, and Rhode Island do not recognize any common law exceptions to the rule1. Public Policy Exception- narrowly applied common law rule that places the public welfare ahead of the rights of an employer2. Statutory Exceptions- antidiscrimination laws that prohibit termination based on certain discriminatory motivations such as race or gender 3. State Whistle-Blower Statutes- employee or agents who reports unlawful conduct or statutory violation -protected when they report the violation by employers to authorities-some states only protect government employees -whistle blower must suffer an adverse employment action to be covered under the statute -employers may terminate employees who are whistle-blowers if they can show that they terminated the employee for reasons that are independent of any whistle-blowing-Federal employees are protected under the Whistleblower Protection Act of 1989Employment Regulation Fair Labor Standards Act (FLSA) – passed in 1938 and covers all employers engaged in interstate commerce Payment of minimum wage -currently $7.25, but states can set higher wage Portal-to-Portal Act: provide guidelines for what constitutes compensable work-employees are not entitles to compensation for (1) time spent by an employee traveling to and from the actual place of the employee’s job; (2) time spent by an employee on activities performed before or after the principal activities in a workdayMaximum 40-hour workweekOvertime compensation (time and a half)Some workers receive set salary for a 37.5-hour workweek due to breaks and lunchesOvertime payRestrictions on children working in certain occupations and during certain hours -FLSA does not cover exempt employees Professionals who required specialized study and certifications, attorneys, physicians, teachers and accountantsManagement or supervisory employees Computer programmers and engineersEmployees subject to certain certification and regulatory requirements -to be exempt, an employee must make a minimum salary of $47,476 and also is considered…Education of skill level or certifications required for the position Amount of physical labor requiredAmount of repetitive tasks Degree of supervision required by employer-misclassification is severe because employer would be required to pay back all overtime compensation to employeeChild labor laws- FLSA outlaws sending school-aged children to work instead of to school -children in family agricultural jobs and child actors are exemptState Wage and Hour Laws- some states have adopted additional employee protections Minimum paid rest periods Minimum paid meal periods Payday requirementsPrevailing wages requirements Retirement- not required to establish plan by employers Pension- a retirement benefit in which the employers promises to pay a monthly sum to employees who retire from the company after a certain number of years of services Tax-deferred retirement savings account (401k)- employee commits to saving a certain percentage of base pay in an account that is controlled directly by the employee-some employers match the employee’s contribution by paying an extra amount-grow without triggered any tax liability until the employee is ready to make retirement withdrawals from the account Employee Retirement Income Security Act (ERISA)- requires employers to make certain disclosures related to investment risk and provides transparency for plan beneficiaries -authorizes Department of Labor to monitor pension and retirement savings plan administration Social Security Act of 1935-provides a broad set of benefits for workers that are funded by mandatory employment taxes paid by both employer and employee in to a trust fund administered by the federal government -employment taxes are mandated by FICA (federal insurance contribution act) -employees entitled to retirement benefits based on how many credits they have earned during their working life (no matter how many different jobs) -provides payments to be made if a worker becomes disabled and survivor benefits for spouses and children upon death of a workerHealth care- Patient Protection and Affordable Care Act mandate that all U.S. citizens be covered by a health care insurance plan -a business may choose to pay a penalty fee to U.S. government instead of providing coverage -HIPPA, Health Insurance Portability and Accountability Act, sets administrative rules and standards designed to protect employee medical information-COBRA, Consolidated Omnibus Budget Reconciliation Act, mandates that employers provide continuous coverage to any employee who has been terminated even if the worker was terminated for a cause (up to 18 months but employees have responsibility of payment of premiums and fees)PPACA and the HCERA require employers with 50 or more full-time employees to purchase health care insurance for their employees or face a penalty -offers small business owners (25 or less workers) tax incentives for offering health care coverage to employees and pay at least 50% of total cost for employee’s coverageSudden Job Loss- Federal Unemployment Tax Act (FUTA) provided limited payments to works who had been temporarily or permanently terminated from employment through no fault of their own-worker must been actively seeking new employment -intended to cover workers who lose their jobs because of economic difficulties; not those terminated for causeWorkplace Injuries- workers’ compensation statutes -paid based on a percentage of the employee’s salary at the time of occurrence -companies may be self-insured if they meet their individual states requirement’s for establishing a fund that is sufficient to make payments to injured employees-in exchange for compensation, employee is barred from pursuing a negligence lawsuit related to the injury against the employer-no entitled to workers’ comp if intentionally self-inflicted or was the result of knowing a violation of safety rules by the employee, employee misconduct, or employee’s intoxication/drug use-exceptions include… 1.) employer engaging in actions that intentionally create reckless disregard for safety of its employees2.) employer acts with a reckless disregard for the safety of its employees-injury must…1.) the injury was accidental 2.) injury occurred within the course of employment Regulation of Workplace Safety- OSHA (1970)Occupational Safety and Health Act (OSHA)Setting national safety standardsMandating information disclosure and warnings of hazardous working areas and assignments Establishing record-keeping and reporting requirements Imposing a general duty upon employers to keep a workplace reasonably safeOSHA statute created the Occupational Safety and Health Administration -routine or unscheduled worksite inspections -investigates complaints made by employees alleging that employers violated safety standards -employees complaining are protected by whistle-blowing provisions OSHA provisions -employers with 11 or more employees are required to maintain records about the company’s safety records -if employee is killed or more than 3 are hospitalized, employer must notify administration no later than 8 hours after incident -employees have limited right to walk off the job when faced with hazardous workplace conditions 1.) employee faces a condition that he reasonably believes will result in serious injury or death2.) context makes it impractical for the employee to contact administration inspectionFamily and Medical Leave Act- FMLA -sets out basic protections for workers who need a brief leave from work to care for themselves or an immediate family member -applies to employers that have 50 or more employees within 75 miles -must have worked for the company for 12 months and worked 1,250 hours -12 weeks of unpaid leave -care for a newborn or serious health condition affects employee, employee’s spouse, or child, or parent -must give 30-day notice of leave and be able to provide continued documentation 1.) employers are restricted from taking or threatening any adverse job action against the employee because of FLMA leave 2.) upon returning from the leave, employees are guaranteed employment in the same or a similar job at the same rate of pay3.) employers must reinstate an FLMA- leave employee immediately upon the employee’s notification that the leave is over -does not require returning employees be credited with seniority Key Employees- employee whose salary range is in the top 10 percent of all salaries in the company Employee Privacy Employee’s activity while using an employer’s computer system are not protected by any privacy laws Electronic Communications Privacy Act (ECPA) restricts an employer from monitoring an employee’s personal calls without the employee’s consent -cannot access employee’s office voicemail without the employee’s consent ADA prohibits discrimination on basis of a physical disability ADA places restrictions of medical exams and tests If medical tests are given, must be given to all employees and can’t single out certain ones Polygraph testing- Employee Polygraph Protection act prohibits private sector employers from requiring a polygraph test as a condition of employment -employers are prohibited from taking threatening actions against those who refuse to take the test Labor Unions and Collective Bargaining National Labor Relations Act (NLRA)- provides general protections for the rights of workers to organize, engage in collective bargaining, and use economic weapons in the collective bargaining processCollective bargaining- the process of negotiating terms and conditions of employment for employees in the collective bargaining unit National Labor Relations Board (NLRB)- administer, implement, and enforce the law’s wide-sweeping provisions -monitors union elections for fraud and sets guidelines for employers and unions in regard to fair labor practices -worker must be a current employee Labor Management Relations Act- amendment to the NLRA that prohibited employers and employees from agreeing that union membership is required as a condition for employment -authorizes states to enact right-to-work laws which make it illegal for employees to agree with unions that union membership be required for continuing employment (DO NOT GUARANTEE EMPLOYMENT)Labor-Management Reporting and Disclosure Act- established a system of reporting and checks intended to uncover and prevent fraud and corruption among union officials Regulated internal operating procedures of a union, and rights of members at membership and officer meetings Requires extensive financial disclosures by unions Gives the NLRB additional oversight jurisdiction for internal union governance Union FormationForm a collective bargaining unitHave other workers sign authorization cards (cards indicating that they wish to form a local union or join and existing union -at least 30% of the authorization cards must be signed by employees in a certain bargaining unit Election- a vote to elect or reject unionization-prior to election, union organizers are permitted to campaign but employers have a right to limit campaign activities if they are on company property during company time -NLRA prohibits employers from using threats of termination of demotions or incentives in exchange for a nonunion vote Certification- majority rulesCollective Bargaining -NLRA requires that both parties engage in good faith negotiations -parties are obligated to demonstrate that they are engaged in moving toward an agreement -grievances: complaint filed with or by a union to challenge an employer’s treatment of one or more union members -arbitrator’s decision is always subject to review by courts that are applying federal standards related to fairness and good faithStrikes and Other Work Stoppages -certain occupations are restricted if allowing a strike would significantly jeopardize public health or safety -right to strike is protected but the NLRA provides guidelines on when, where, and how a strike might be carried out Employers have no legal obligation to rehire striking workers or provide retroactive pay in cases of a strike for economic reasons-if a strike is commenced due to unfair labor practices rather than economic reasons; employees are entitled to immediate reinstatement Strikers have the right to engage in picketing at employer’s facilities but not on the actual property site owned by the company; it must be peaceful and can’t harass customers Illegal Work Stoppages and BoycottsWildcat strikes- individual union member or small groups of union member go on strike for short bursts of time without union authorization Sit-in strike- occupation of an employer’s facility for the purpose of a work stoppage Strikes during cooling-off period- federal court can enforce a strike prohibition for a period of 80 days if a strike threatens national public health of security Secondary boycotts- directing a strike on a third party (supplier or customer) Lockouts and Replacement Workers Lockout- the shutdown of business by the employer to prevent employees from working, thus depriving them of their employment and putting economic pressure on the union’s members before the union can do the same to the employer through a strike -employers can employ a lockout if they anticipate a strike -any time an employer lacks and legitimate business reason for employing a lockout; it is an unfair labor practice replacement workers-nonunion employees hired by a company in order to continue its operations during a strike-employees may discharge or keep them after the strike is over CHAPTER 12Employment Discrimination- workplace related discrimination in the hiring process and treatment of employees; encompasses everything from promotions and demotions to work schedules, working conditions, and disciplinary measures Equal Employment Opportunity Commission (EEOC)- Five-member federal administrative agency that administers congressional mandates that ensure adequate protection for victims of discrimination; accepts and investigates worker complaints and, in certain cases, will sue on behalf of employees -filing a complaint with the EEOC is the first step for a party claiming unlawful discrimination-EEOC will sue on behalf of the aggrieved employeeFederal Workplace Antidiscrimination StatutesTitle VII- prohibits discrimination in the workplace on the basis of an employee’s race, color, national origin, gender, religion, or pregnancyAge Discrimination in Employment Act (ADEA)- prohibits employers from discriminating against employees on the basis of their age once employees have reached age 40Americans with Disabilities Act (ADA)-eliminates discriminatory employment practices against disables persons; requires that employers with 15 or more employees make reasonable accommodations for a disabled employee as long as accommodations do not cause the employer to suffer and undue hardshipEqual Pay Act- federal statutes that makes it illegal for employers to pay unequal wages to men and women who perform substantially equal work-laws that require person in protected class to receive equal treatment -laws that require the person in the protected class to receive special treatment TITLE VII-applies to any private sector employer with 15 or more full-time employees -to be protected under title vii, the employer’s discriminatory decision must have been based on the employee’s membership in a protected class -theories and attendant tests…1. disparate treatment (McDonnel Douglas standard)- overt and intentional discrimination -may be proved through either direct or indirect evidence a. plaintiff must establish a prima facie case of discrimination b. burden of proof to shift to the employer c. employer must articulate a legitimate, nondiscriminatory reason for the discriminatory action-if provides reason, the burden shifts back to the employee-a false reason intended to cover up a discriminatory action is called a pretext 2. mixed motives (Hopkins Standard)- when the cause of employment action is motivated by both legitimate and discriminatory motives -Hopkins was a good worker, but was unable to act on a team which was the reasoning behind not making partner -employee is protected under title vii in a case where legitimate motives are mixed with illegitimate motives if the employee proves the protected-class membership was a substantial factor in the decision making process-burden then shifts to the employer 3. disparate impact (Griggs standard)- using facially neutral practice that has an unlawful adverse impact on members of a protected class -once the prima facie elements are established, the burden of proof then shifts to the employer to provide evidence that the challenge practice is job-related for the position in question and is a business necessity Sexual HarassmentQuid pro pro theory- harasser demands sexual favors as a condition of continued employment or a prerequisite for a promotion or pay raise Hostile work environment- conduct of the harasser is of such severe and crude nature that it interferes with the victim’s ability to perform their job’s responsibilities -if employee quits due to behavior, they still have the right to sue Initiating a discussion of sexual acts Engaging in unnecessary or excessive physical contact Using crude, demeaning, or vulgar language Displaying pornographic pictures or movies -harassment must be severe are pervasive -gender neutral and recognized sexual harassment as a form of discrimination regardless of the gender of the victim or the harasser -employers could be held liable for sexual harassment by an employee when a nonsupervisory co-worker is the harasser if the employee can prove that the employer was negligent in either 1. discovering the conduct 2. failing to respond to a sexual harassment complaint made to a supervisor -if the harassing employee is a supervisor then the employer is strictly liable -remedies include an injunction, reinstatement, compensatory damages in the form of back pay, retroactive promotions, requirements that the employer take certain actions in order to remedy patterns or practices resulting in discrimination-punitive damages are available only when a plaintiff proves that a private employers acted with malice, in retaliation, or with reckless disregard to employment discrimination lawsAge Discrimination in Employment Act -employers that have 20 or more employees are prohibited from discriminating against employees on the basis of their age once employees have reached 40-protected employees are not entitled to special treatment, but cannot be discriminated against by a substantially younger employee -may only make claims based on…1. protected-class membership (40 or over)2. satisfactory job performance3. adverse job action such as termination or demotion4. replacement with someone substantially younger 5. other evidence that indicates it is more likely than not that the employee’s age was the reason for the adverse employment action-if the employee makes a prima facie case, the employer must present a nondiscriminatory reason for adverse employment action-employee has to convince the fact finder that the information is pretextual and that the reason is age discrimination -ADEA also acts to prohibit mandatory retirement policies-exceptions made for certain executives, pilots, federal law enforcement officers, air traffic controllers, firefighters, high policymaking positions -if trying to prove age discrimination; plaintiff must prove they are substantially younger; age difference must be at least 10 years Americans with Disabilities Act-ADA seeks to eliminate discriminatory employment practices by employers with 15 or more employees against disabled persons that would otherwise-qualified individuals from obtaining or continuing employment -to establish a prima facie case…1. disabled 2. qualified individual 3. subjected to unlawful discrimination because of his disability -employer must make reasonable accommodations for disabled employees so long as the accommodations do not cause the employer to suffer an undue hardshipDocumented-Disability Requirement Employee must have a documented disability -physical or mental impairment that substantially limits a person’s abilities to participate in major life activities Blindness, cancer, heart disease, paraplegia, and acquired immune deficiency syndrome (AIDS)Regarded-as Test- employee is regarded as having impairment by her employer even though it’s not actually a disability Qualified Individual- someone who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires Reasonable Accommodations- ADA requires employer to make reasonable accommodations that allow the employee to perform essential job functionsExisting facilities made readily available to induvial with disabilities Job restructuring, part-time or modified work schedules, reassignment to vacant positions, and provision of readers or interpreters -installing wheelchair ramps, modifying assignments or schedules are all reasonable -not required if it causes and undue hardship (expenses or impact on operation of facility) -must not provide a specific accommodation demanded by the employeeEqual Pay Act-signed by president Kennedy in 1963-illegal to pay men and women different wages for the same amount of work -EPA is an amendment to the Fair Labor Standards Act-plaintiff must demonstrate that…Employer pays different wages to employees of the opposite sexEmployees perform equal work on jobs requiring equal skill, effort, and responsibility Jobs are performed under similar working conditions If prima facie case is established burden shifts to the employer EPA is often combined with Title VII claims of sec discrimination in compensationLilly Ledbetter Fair Pay Act- 180-day period of an employee becoming aware of their first paycheck -each discriminatory paycheck resets the period of time during which a worker may file a pay discrimination claim Procedures for Asserting a Claim Aggrieved employee must file a complaint (discrimination) against the employer with the local office EEOC-EEOC notifies the employer and commences a preliminary investigation -EEOC may use its authority to obtain documents, statements from witnesses, and other evidence EEOC is required by statute to engage in conciliation negotiations (required attempted by the EEOC to settle a discrimination case instead of filing a lawsuit -EEOC has an affirmative statutory duty to make good faith efforts -EEOC may choose to file suit against the employer on the employee’s behalf or may decide not to take any action at all-after 180 days, the employee may demand that the EEOC issue a right to sue letter Employer Defenses Business necessity test- defense used to rebut disparate impact claims when a business can prove that a certain skill, ability, or procedure is absolutely necessary to the operation of the business -being required to lift things to be qualified for jobs -particular level of education Fargrher/Ellerth Defense- an employer may avoid vicarious liability by proving that a system was in place that was intended to deter, prevent, report, and correct harassment -employer must prove the employee failed to take advantage of the preventative or corrective opportunities bona fide occupational qualification (BFOQ)- provision in certain federal antidiscrimination statutes that allows discrimination based on religion, gender, or national origin when it can be shown that such discrimination is reasonably necessary to the business operation-does not allow race to be a BFOQ-religion for employment of a clergy -gender to hire a movie actor Employer must prove that members of the excluded class cannot safely and effectively perform essential job duties Rule is subject to qualification -Seniority system must be based on objective elements of seniority and the employment decisions must have been made in good faith and pursuant to that established objective system -employee has burden of proving improper motivation behind the employer’s adoption or use of the system Employee misconduct- if employee commits act of misconduct, employers may discipline the employee in accordance with the company’s general policy without liability for discrimination -managers must be very careful to apply discipline evenly Affirmative Action Programs -an action plan designed to maintain equal employment opportunities and to remedy past employment discrimination of women, persons of color, persons with disabilities, and other underutilized protected classes -affirmative action does not require absolute equality 1.) attempts to remedy an actual past practice of discrimination 2.) does not employ a system of quotas State Antidiscrimination Statutes -often modeled after federal statutes -states have their own administrative agencies 1. state statutes tend to cover more employers 2. some states have expanded protected-class membership ................
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