Employment Law: A Quickstudy Laminated Law Reference [2 ed.] 9781423238911, 1423238915

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LABOR ISSUES: FAIR PRACTICES & EMPLOYEE SAFETY & PROTECTION Fair Labor Standards Act (FLSA) [29 U.S.C. §§201–219]

Covers both public and private sectors; weak preemptive effect on state laws • Coverage A. All employers engaged in commerce [§203(s); U.S. v. Darby] B. Factors: Dollar volume of business for some C. Extension to public sector upheld [Garcia v. San Antonio] i. All public hospitals, schools, and public agencies are covered ii. Compensatory time off in lieu of overtime at time-andone-half rate D. States’ 11th A. immunity from suits for money damages [Alden v. ME] E. Definition of employee: Any individual employed by an employer [§203(e)(1)]; economic reality test [Rutherford Food Corp. v. McComb]: i. Employer’s right to control manner in which work is performed ii. Employee’s opportunity for loss or profit iii. Employee’s investment in equipment iv. Special skills v. Permanence of working relationship vi. Whether work performed is an integral part of employer’s business F. Workers who are not covered are independent contractors and prisoners (not per se excluded) • Subjects not covered by FLSA A. Vacation, holiday, severance, or sick pay B. Meal or rest breaks and premium pay for weekend or holiday work C. The number of hours in a day or days in a week an employee may have to work (assuming worker is 16 or older) • Minimum wage and overtime standards [§§201–219] A. Identify employees’ workweek and gross amount of pay B. Calculate number of hours worked during that week C. Split gross pay into 3 parts: nonwage items (e.g., bonuses) [§7(e) (1)–(3b)]; premium pay [§7(e)(5)–(7)]; and basic straight-time pay D. For employees paid monthly or semimonthly, multiply monthly pay by 12 (or semimonthly by 24) and divide the result by 52 • Exemptions from overtime pay A. Seasonal workers, babysitters, and some journalists B. Five exempt categories, as of 2004 regulations [29 C.F.R. §541]: Executive, administrative (but police, firefighters, and emergency medical technicians continue to get overtime), professional, computer, and outside sales; pharmaceutical sales representatives are FLSA exempt as outside salesmen [Christopher v. SmithKline Beecham Corp.]; service advisors are not covered by exemption overrules [Encino Motorcars, LLC f. Navaro] C. Three-part test for exempt status: Salary limit test ($23,660 per year are nonexempt; over $100,000 are presumptively exempt), salary basis test, and duties test • Compensable hours A. Time spent on key job duties plus incidental duties integral to job; time spent undergoing security screenings is not compensable [Integrity Staffing Solutions v. Busk] B. Portal-to-Portal Act excludes preliminary and postliminary (waiting to be engaged) activity; 2010 labor regulation states time spent donning and doffing protective equipment compensable C. Postdonning and predoffing walking time is compensable [IBP, Inc. v. Alvarez]; experts can show hours worked donning and doffing in FLSA class action suits [Tyson Foods, Inc. v. Bouaphakeo]; time spent donning and doffing protective gear is not compensable where collective bargaining agreement so provides [Sandifer v. United States Steel Corp.] D. Meal times over 2 hours are noncompensable; employers must afford working mothers reasonable break time to express breast milk for 1 year after child’s birth [§4207 of the Patient Protection and Affordable Care Act (PPACA)] E. Commuting time is noncompensable • Child labor [§213(c)] A. Waiver: 10- and 11-year-olds may work as hand harvesters to pick short-season crops (8 weeks per year) B. Must be 16 years old to work in most nonfarm jobs C. Must be 18 years old to work in hazardous jobs D. Exceptions: Children employed by parents in agriculture and as actors and newspaper deliverers • Enforcement A. Secretary of labor may bring action for civil liability, money fines for child labor violations, and injunction B. One or more employees may seek civil damages C. Department of Justice: Actions for criminal penalties D. Statute of limitations: i. Two years for nonwillful violations ii. Three years for willful violations: Employer knew or showed reckless disregard as to whether act violated FLSA; same definition of “willful” applies to Age Discrimination in Employment Act (ADEA) and Equal Pay Act (EPA) [McLaughlin v. Richland Shoe Co.]

• Retaliation: Oral complaint is protected conduct under antiretaliation provision [Kasten v. Saint-Gobain Performance Plastics Corp.]

Employee Polygraph Protection Act (EPPA) [29 U.S.C. §§2001–2009]

i. State courts lack jurisdiction over conduct arguably subject to §§7 and 8 of the NLRA ii. Exceptions: Matters of peripheral concern to federal labor law and interests deeply rooted in local feeling B. Field preemption (machinist) [427 U.S. 132 (1976)]: Congress intended some acts unregulated by federal or state law C. §301 preemption test i. Whether state court must interpret CBA to decide state claims [Lingle v. Norge Div. of Magic Chef, Inc.] ii. Court, not arbitrator, decides CBA’s ratification date [Granite Rock Co. v. Int’l Bhd. of Teamsters] iii. §301(a) supports a federal cause of action only for breach of contract claims, not claims of tortious interference of contract [Granite Rock Co.]

• Coverage A. Bars most private employers from using lie detectors either for preemployment screening or during the course of employment [§2001(3)] B. Covers all employers engaged in commerce [§2002] • Prohibits employers from [§2002]: A. Causing any employee or applicant to take a lie detector test B. Using such test results in any way C. Discharging, discriminating against, or disciplining any employee or applicant on basis of such test or for refusal to take such test D. Disciplining any employee for exercising any EPPA rights Occupational Safety & Health Act (OSHA) • Exemptions [§2006(a)] [29 U.S.C. §§651–678] A. All public-sector employers are exempt B. Federal government permitted to test private-sector employees • Employer duties [§654(a)] A. Maintain workplace free from recognized hazards who have access to classified information C. Federal testing of any contractor of Departments of Defense or B. Obey OSHA standards • Employee rights and duties Energy allowed A. Question unsafe conditions and require inspection [§657(f)] D. Testing of members of intelligence services allowed B. Assist OSHA inspectors [§657(e)] E. Federal testing of FBI contractors allowed F. Private employers conducting ongoing investigation involving C. Aid in judging whether imminent danger exists economic loss or injury allowed (e.g., theft, embezzlement), but D. Bring action to force secretary of labor to seek injunctive relief [§662] employer cannot randomly test to see if thefts have occurred E. Refuse to perform hazardous work [29 C.F.R. §1977.12] if there [29 C.F.R. §801.12] is reasonable fear of death or injury and no other way to cure G. Private employers involved in security services allowed to test danger [§660] applicants [§2006(e)] F. Employees face no sanctions for violating OSHA standards by H. Testing allowed when drugs are involved [§2006(f)] OSHA, but employer may discipline employee • Penalties [§2005(a)(1)] A. Up to $10,000 for each violation G. Protection against retaliation [§660] B. Employee remedies: Legal or equitable relief; being hired, H. Right to access exposure records reinstated, or promoted; lost wages and benefits; and costs and I. Right to access own medical files attorneys’ fees • Inspections • Statute of limitations is 3 years [§2009] A. In response to employee complaints • Preemption: Any state or local law or collective bargaining B. After injuries or deaths agreement (CBA) that is more restrictive is not preempted [§2009] C. Imminent dangers D. Regional programmed inspections National Labor Relations Act (NLRA) E. If denied access, OSHA must obtain a warrant [Marshall v. [29 U.S.C. §§151–168] Barlow’s, Inc.] Only governs private-sector collective bargaining [§152(6)]; goal is F. Government must show either probable cause or believe OSHA to eliminate coercion or interference with employee rights to engage violations exist upon showing of administrative probable cause in protected concerted acts • Promulgation of standards: Adopt existing standards, new • §7 employee right to: standards, and emergency standards A. Self-organization • Violations B. Engage in protected concerted acts (e.g., strikes) i. Protected activity relates to terms and conditions of employment A. Of general duty clause, secretary must prove employer failed to maintain a workplace free of a hazard that was recognized and ii. Unprotected activity (e.g., violence, strikes in breach of contract) caused death or serious physical harm iii. Concerted: Requires more than 1 in nonunion setting B. Types of violations: De minimis, nonserious, serious, and willful iv. Constructive concerted: Only need 1 employee invoking CBA or repeated in union setting C. Negligence per se C. Bargain collectively through agents of own choosing i. About 25% of the states have ruled that a breach of a duty D. Not join a union in right-to-work states (in 2018, there were 28 imposed by a statute (like OSHA) or regulation is negligence right-to-work states) per se if the party injured is a member of the class of persons • §8 unfair labor practices the statute was intended to protect [Teal v. E.I. DuPont de A. §8(a) Nemours & Co.] i. §8(a)(1): Bars employers from interfering with, restraining, or ii. Majority rule: OSHA standards are only some evidence of the coercing employees in exercising NLRA rights [§158(a)(1)] standard of care ii. §8(a)(2): Employer cannot dominate, support, or interfere • Contesting citations with union formation or administration [§158(a)(2)] iii. §8(a)(3): Employer cannot discriminate in hiring, tenure, or A. Employer has 15 days to contest citation [§659] any term or condition of employment that either encourages B. OSHA commission may accept, reject, or modify citation or remedy or discourages participation in union [§158(a)(3)] C. At administrative hearing, secretary must prove relevance of iv. §8(a)(4): Antiretaliation provision [§158(a)(4)] standard, noncompliance, employee exposure, or access and that v. §8(a)(5): Employer cannot refuse to bargain collectively with employer knew or should have known of violation union over mandatory subjects of bargaining [§158(a)(5)] B. §8(b): Bans analogous unions, unfair labor practices, and D. Employer defenses i. Procedural defects: Invalid warrant, denial of walkaround secondary boycotts [§158(b)] rights, vague citation, and use of incorrect standard C. §8(c): Right of employer, employee, and union to speak freely ii. Substantive defenses: Compliance posed greater hazard, comabsent threat of reprisal or force or promise of benefit [§158(c)] pliance not technically feasible, employee refused to comply, • Jurisdiction of National Labor Relations Board (NLRB) and noncontrolling employer was ignorant of hazard A. Representation cases: Procedures for conducting a union election iii. Compliance with OSHA standards is no defense to state tort i. Determines appropriate bargaining unit or criminal liability ii. Determines whether employees want an election [§159] • Enforcement iii. Certifies elected union or decertifies unions A. Secretary of labor may seek injunction to abate violation [§662] B. Unfair labor practices (ULPs) cases B. Employee may ask secretary to seek injunctive relief i. Charges filed with NLRB • ii. NLRB’s General Counsel has unreviewable discretion as to Remedies whether a charge should be dismissed or a complaint be issued A. Injunctions to abate violation iii. ULPs cases heard by administrative law judge, and NLRB B. Civil penalties C. Criminal penalties [§666] for a willful violation causing death, panel issues opinion giving advance notice of inspection, and knowingly making false iv. Appeal to Federal Circuit Court of Appeals where NLRB panel statements in OSHA report sits [§160(e)–(f)] C. Three members of the NLRB constitute quorum necessary to • Preemption A. OSHA preempts all state health and safety legislation conduct business [New Process Steel v. NLRB] B. Exceptions: OSHA-approved state plans [§18], state and local fire • Preemption regulations, zoning ordinances, criminal laws, and state tort claims A. Garmon preemption [359 U.S. 236 (1959)] 1

Labor Issues: Fair Practices & Employee Safety & Protection (continued ) C. Federal Employers’ Liability Act: Trial courts must give jury Workers’ Compensation instruction that one’s fear of cancer claim from workplace exposure • Each state has its own statute to asbestos must be “genuine and serious” [CSX Transp., Inc. v. A. Repeated-trauma injuries: Employment-based impairments Hensley] and normal wear and tear of ordinary living; normal wear and tear not compensable Federal Unemployment Compensation Act B. Soft-tissue injuries: Causation problems; injury is compensable [42 U.S.C. §§501–504, 1101–1105] even if existing impairment is aggravated by employment • Goals C. Mental injuries: Causation problems; compensable if associA. Matching up jobless with job openings ated with physical trauma; many states require proof of extraorB. Creating disincentives for employers to lay off employees by dinary stress experience rating (lower rates for fewer claims) D. Impairment versus disability C. Paying benefits to jobless i. Medical impairment: An alteration of health status assessed • Joint federal-state system by medical means A. Federal tax on payrolls (6.2%) ii. Disability: An alteration of the patient’s capacity to meet B. Federal tax sharply reduced if state law for compensating jobless personal, social, or occupational demands assessed by nonmeets federal standards medical means • Benefits eligibility • Occupational diseases: 3 types of statutes: A. Claimant must have earned set amount of wages in a covered job A. Scheduled diseases associated with specific occupation B. Claimant is presently jobless B. Compensates for diseases arising naturally from type of job C. Claimant is able to and available for work (excludes ordinary diseases of life) D. Claimant has registered at unemployment office C. Limits coverage to diseases peculiar to the type of job E. Benefits are paid out of employer’s individual reserve account • Arising out of and in the course of employment F. Maximum number of weeks is usually 26, but more during A. “Arising out of ” refers to cause or origin economic recessions B. “In the course of ” refers to time, place, and circumstances [Guess • Disqualification v. Sharp Mfg. of Am.] A. Varies from temporary postponement of eligibility to 1-year C. Going-and-coming rule excludes coverage for injuries during ineligibility commute; exceptions: B. Voluntarily quit i. Employer provides means of transport i. Some states: Leaving job without good cause ii. Being on road is a normal part of work ii. Other states: Leaving job without good cause connected with iii. After-hours injuries compensable if employee is on on-call or attributable to work status C. Quitting over religious objections usually will not disqualify iv. Employee, while on employer errand, is injured during claimant [Thomas v. Review Bd.] commute D. Misconduct D. Injuries sustained during employer-sponsored recreation activity i. Disobeying reasonable order amounts to willful misconduct are compensable ii. Incompetence, inexperience, and poor performance may E. Injuries caused by natural forces (e.g., lightning) are compensable amount to good cause to fire but not misconduct sufficient to according to positional risk doctrine disqualify for benefits • Ways around workers’ compensation: Sometimes injured iii. Disqualifying for off-duty misconduct is rare employees prefer to sue employer in tort in lieu of workers’ E. Factors of refusing suitable job: Age, education, and experience; compensation degree of risk; employee’s past earnings; length of commute; and A. Injuries resulting from either employer’s or coworker’s intenduration of unemployment tional tort; minority rule: willful, wanton, reckless misconduct F. Labor disputes: Lockout is not disqualifying, but strike disqualifies will allow employee to sue in tort G. Setoffs: Workers’ compensation, severance pay, and pension B. Dual-capacity rule (minority): • Procedure i. If employee was injured while tortfeasor was serving its role A. Administration: Employer contests claim as employer, then employee’s injury is covered by workers’ i. Hearing officer’s decision is appealable to administrative board compensation ii. Appeal to state court ii. But employee may recover in tort for negligent aggravation of B. Hearing is informal and brief a work-related injury against an employer who assumes the • State and local laws barring discrimination on grounds of capacity of medical care provider by treating employee’s injury unemployed status itself [Weinstein v. St. Mary’s Med. Ctr.] Worker Adjustment & Retraining Notification Act • Actions against third parties A. Actions against an affiliated company (WARN) [29 U.S.C. §§2101–2109] B. Actions against general contractors by employees of subcon• Coverage tractors A. Private employers with over 100 employees C. Employees of general contractor or subcontractor suing other B. If 50 or more employees are laid off [§2102(a)(2)] subcontractors C. An employment loss during any 30-day period at a single site of either 33% of the employees (if they number 50 or more) or 500 D. Action against architect, engineer, or safety and health consultant E. Action against a property owner or more employees [§2101(a)(3)] D. Part-time employees working fewer than 20 hours per week F. Action against a coworker (minority view): Occupational Safety and Health Law [§21:7 (2007)] or employed fewer than 6 of the 12 months preceding date of G. Actions against insurance companies, labor unions, and required notice are not included government agencies: Occupational Safety and Health Law • Definition of employment loss [§21:10–12 (2007)] A. An employment termination other than a discharge for cause, H. Liability actions against manufacturers of defective products voluntary departure, or retirement causing injury or illness [York v. Union Carbide Corp.] B. A layoff exceeding 6 months • Benefits C. A reduction in hours of work over 50% during each month of any A. Medical benefits 6-month period i. What constitutes proper care? (e.g., home nursing service) • Notification ii. Has injured employee achieved maximum recovery? A. Sixty calendar days advance written notice before plant closings iii. Who selects treating physician? or mass layoffs [§2102(a)] iv. Did employee refuse to undergo treatment? B. Notice to individual employees must mention bumping rights C. Notice to union must identify affected job classifications, names B. Disability benefits i. Amount of each weekly payment is typically about half of of affected employees, and probable date of termination or layoff employee’s average weekly earnings (14-day window) D. When less than 60-day notice is required: ii. Types of disability: Temporary total, temporary partial, permai. If employer who is seeking capital or new business in order nent total, and permanent partial to stay profitable has good-faith belief that giving notice C. Death benefits typically go to deceased employee’s spouse and would jeopardize odds of landing needed capital or business minor children [§2104(a)(4)] D. Rehabilitation benefits ii. If closing or layoff is the result of business circumstances that • Administration and procedure were not reasonably foreseeable A. Notice by employee that injury or illness has occurred iii. If closing or layoff stems from natural disaster B. Employer must notify state agency iv. In each case, employer must give as much notice as is practical C. Disputes are investigated by agency and hearing is conducted [§2102(b)] i. Statute of limitations commences when reasonable person • Exemptions: WARN does not apply: would be aware of injury A. To plant closing or layoff at a temporary facility or as result of ii. Reopening cases stemming from change of circumstances completing a special project, so long as employees know work D. Insurance premiums paid by employer based on experience was temporary rating (as more employees make workers’ compensation claims, B. In case of strike or lockout, unless aimed at evading WARN employer’s insurance rates go up) requirements Social Security Disability [42 U.S.C. §423 et seq.] • Liability A. Civil penalty of up to $500 per day for each day of violation to • Coverage A. Federal compensation for non-job-related disability that prelocal government that was not notified cludes an individual from working B. Back pay to each aggrieved employee for each day of violation B. Claimants must have worked a certain number of quarters to be C. Costs and attorneys’ fees are at the court’s discretion eligible D. Lost benefits E. Defined benefit pension liability may be met by crediting each • Definition of disability affected employee with the appropriate additional amount of A. Eligible only if physical or mental impairments are so severe that service [§2104] one is unable to do previous job, and, considering age, educa2

tion, and work experience, cannot engage in any other kind of substantial, gainful work nationwide B. Five-step sequential evaluation process; claimant must show: i. He/She is not working at a substantial, gainful activity ii. He/She has a severe impairment iii. Whether claimed impairment is on list of acknowledged severe impairments; if on list, claimant qualifies iv. If not on list, ask whether claimant can do his/her previous job v. Consideration of vocational factors (age, education, and work record) in assessing whether claimant can perform other jobs existing in significant numbers in the national economy [Barnhart v. Thomas]

Whistleblower Statutes

• Federal A. Whistleblower Protection Act of 1989 [5 U.S.C. §2301(b)(9)] i. Protects federal employees who expose violations of law, mismanagement, waste of funds, abuse of authority, or dangers to public health or safety ii. Employee seeks corrective action from Merit Systems Protection Board iii. Remedies: Back pay, benefits, medical costs, and attorneys’ fees and costs B. False Claims Act bars qui tam suits based on information already disclosed in a state or local administrative hearing or report [Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson] C. PPACA bars bias and retaliation against whistleblowing employees involving violations of Title I of the PPACA D. Sarbanes-Oxley Act: Protects whistleblowers who are employees of private contractors [Lawson v. FMR LLC] • State A. Scope of protection varies from state to state B. Prima facie case; employee must show that: i. He/She engaged in activity protected by the act ii. He/She was subject of adverse employment action iii. Causal link exists between protected activity and the adverse employment action C. Some state courts refuse to recognize whistleblowing claims absent a statute [Hostettler v. Pioneer Hi-Bred Int’l, Inc.] D. Some courts rule that statutory whistleblower remedies preclude common law claims, such as wrongful discharge in violation of public policy [Dudewicz v. Norris-Schmid, Inc.] E. American Recovery and Reinvestment Act of 2009 i. Protects state and local public employees and contractors who whistleblow [§1553] ii. Protects whistleblowers alleging waste of stimulus funds iii. Covers disclosure of information reasonably believed to be evidence of gross mismanagement, gross waste, or abuse of authority

Termination of Employment

• At-will employment A. Common law rule: Either employer or employee can end employment relationship at any time for any or no reason, with or without notice i. The at-will doctrine promotes laissez-faire and freedom of contract ii. Application of at-will doctrine is simple and consistent B. Exceptions: Unionized employees (need cause to fire), employees hired for definite term, most civil servants with job tenure, and tenured academics are not at-will • Common law erosion of at-will employment A. Wrongful discharge in violation of public policy i. Sounds in tort; therefore, punitives possible ii. When employee refuses to commit illegal act iii. When employee performs statutory duty (e.g., attending jury duty) iv. When employee exercises legal right (e.g., filing workers’ compensation claim) v. When employee reports employer misconduct (whistleblowing) B. Sources of public policy: Constitutions, statutes, judicial opinions, administrative regulations, and codes of professional conduct C. Breach of implied-in-fact contract i. Based on conduct of the parties ii. Promises made in manuals and handbooks may create binding employer commitments or create unilateral contract that employer may unilaterally alter or withdraw; disclaimer must be clear iii. Oral promises of job security iv. Employer’s practices and practices in the industry v. Job security based on acceptable or satisfactory job performance does not alter at-will status vi. Implied-in-fact remedies available against public employers as well [Cooper v. Mayor of Haddon Heights] D. Implied covenant of good faith and fair dealing i. Neither party will interfere with the other party’s ability to receive benefits under the contract [Restatement (2d) Contracts §205] ii. Sounds in contract, not in tort [Foley v. Interactive Data Corp.] iii. Factors: Longevity of service E. Remedies: Damages offset by duty to mitigate (possibly punitives for wrongful discharge tort); no reinstatement • Wrongful termination statutes A. No general federal law B. Only MT enacted a wrongful termination statute (MT Code Ann.) [§§39-2-902–914]; discharge based on mistaken facts actionable [Marcy v. Delta Airlines] • Just-cause discharge: Theft, dishonesty, fighting at workplace, possession or use of alcohol or drugs on duty, insubordination, sleeping at work, excessive absenteeism, and disloyalty

• Breach of employment contract by employee A. Contracts for a definite term B. Remedies i. Damages, measured by cost to replace employee ii. Specific performance violates 13th A. prohibition against involuntary servitude iii. Negative injunctions bar breaching employee from working for former employer’s rivals for duration of contract term C. Agreements not to compete i. Some states, like CA, refuse to enforce such agreements [CA Bus. & Prof. Code §16600] ii. Most states enforce such agreements provided they are reasonable in time and scope [Restatement of Contracts 2d §188 (1981)]; courts can rewrite such agreements to make them reasonable iii. Remedies: Damages (measured by lost business profits) and injunctions (employee’s services must be unique or extraordinary) D. Trade secrets

i. Information developed by employer over the years at great expense and kept under tight security (e.g., customer lists) ii. Not protected when not treated as confidential and secret by employer, when generally available to other employees and known by persons in the trade, or when easily duplicated iii. Uniform Trade Secrets Act of 1979 adopted by half the states iv. Remedies: Injunction (must be reasonable in time and scope); some states treat misappropriation of trade secrets as a crime (e.g., MA Gen. Laws ch. 266 §30(4)) E. Agreements to assign invention rights to employer; unenforceable if: i. Employee did not use employer’s equipment or information; ii. Employee developed invention on his/her own time; and iii. Invention does not relate to employer’s business [CA Lab. Code §2870]

HEALTH ISSUES: BENEFITS & RIGHTS Comprehensive Omnibus Budget Reconciliation Act (COBRA) [29 U.S.C. §§1161–1168]

Patient Protection & Affordable Care Act of 2010 (PPACA)

• Supreme Court upheld constitutionality of individual • Coverage: Both private and public employers with mandate under Congress’s taxing power [Nat’l Fed’n more than 19 employees [§1161(b)] of Indep. Bus. v. Sebelius] • Notification • ACA regulations imposing contraceptive mandate on A. Plan administrator must notify any qualified benefi- closely held corporations violates Religious Freedom ciary of right to continue health insurance coverage Reformation Act [Burwell v. Hobby Lobby Stores] for up to 18 months after a qualifying event [§1166(a) (4)] Family Medical Leave Act (FMLA) i. Notice must be sufficient to allow qualified ben[29 U.S.C. §§2601–2659] eficiary to make an informed decision whether • Coverage to elect coverage at a cost of no more than 102% A. Employers of 50 or more employees of the premium B. Both private and public sectors ii. Beneficiary must elect coverage within 60 days C. 11th A. immunity: No 11th A. immunity from after qualifying event but may not be required to FMLA claims [NV Dep’t of Human Res. v. Hibbs], make the first premium payment before 45 days but FMLA self-care leave provision is not enforceable after election [§§1162, 1165] against states [Coleman v. MD Court of Appeals] iii. Each qualified beneficiary may choose own type • Eligibility of coverage [§1165(2)] A. Must work 1 year (at least 1,250 hours during iv. Burden of proving proper notice is on plan preceding 12 months) administrator B. Leave must be for birth of a child; for adoption or B. Qualified beneficiary includes spouse of foster care of a child; to care for a spouse, child, covered employee [§1167(3)(b)] or parent with serious health condition; or to C. Qualifying events: care for employee’s own serious health condition i. When covered employee is terminated [§2612(a)(2)] [§1163(2)] C. 2008 additions: Family leave in connection with ii. When employee dies or becomes covered by Injured Members of the Armed Forces Act Medicare i. Active duty family leave: Relatives of military iii. When covered spouse is divorced or legally personnel get additional FMLA leave separated ii. Injured service member leave: Employee iv. When dependent child ceases to be dependent child entitled up to 26 weeks of leave if family member v. When employer files for bankruptcy is injured in the line of duty D. Disqualification if terminated for gross misconduct D. Secretary of labor’s 2008 FMLA regulations [§1163(2)] or reduction in hours [§1167(3)(B)] [29 C.F.R. Part 825]: E. American Recovery and Reinvestment Act of 2009: i. Specifically designated parties may call employee’s Eligible unemployed entitled to have up to 65% health care provider to clarify and authenticate of COBRA insurance premiums paid for by their employee’s leave request former employers ii. Employees required to use employer’s customary Health Insurance Portability & call-in procedures, absent emergency iii. Time spent by employee performing light-duty Accountability Act (HIPAA) [42 U.S.C. work does not count against employee’s FMLA §300gg et seq.] leave entitlement • Coverage: Employer-based group health plans and commercially issued, employer-based group health • Terms of leave A. For up to 12 weeks of unpaid leave during a insurance 12-month period • Key provisions A. Curtails use of exclusions for preexisting conditions B. Employer’s duties are to continue to provide health B. Employers and insurers may adopt a maximum, benefits and to reinstate employee to former 1-time, 12-month exclusion of illness that was diagposition [§2614(c)(1)] nosed or treated within 6 months prior to enrolli. May be denied if employee ranks in top 10% ment, but individuals must be given credit for time salary range if necessary to prevent economic covered under another plan injury [§2614(b)] C. No exclusions for pregnancy, newborns, or adopted ii. Employer must notify employee of intent to deny children reinstatement D. Group health plans may not discriminate based on C. Employee’s duties are to provide 30-day notice for eligibility foreseeable leave [§2612(e)], and if leave unforeseeE. Medical privacy rules allow tougher state laws able, as much notice as possible governing disclosure of patient medical information • Enforcement F. Prevents employer from singling out 1 illness for A. Civil actions by employees (including class actions) reduced benefits or by secretary of labor [§2617] B. If secretary sues, employee cannot Mental Health Parity & Addiction C. Remedies Equity Act of 2008 i. Damages: Lost wages and benefits • Covers group health plans with 50 or more employees ii. Liquidated damages equal to actual damages • Bars imposing any caps or limitations on mental recoverable, unless employer acted in good faith health or substance abuse disorder benefits that iii. Equitable relief (e.g., reinstatement, back pay) are not applied to medical or surgical benefits iv. Attorneys’ fees and costs recoverable only by Presidential Memorandum 2009 prevailing employee [74 FR 29,393] D. Statute of limitations: 2 years for nonwillful • Extends some benefits to same-sex partners of federal violations and 3 years for willful violations (employer employees (e.g., taking leave to care for sick partners, knew or acted with reckless disregard) long-term care insurance available for same-sex • State Laws: Several statewide paid sick leave measures partners) were enacted 3

FAIR TREATMENT & PROTECTED CLASSES Discrimination

• Title VII of the Civil Rights Act of 1964 [42 U.S.C. §2000 et seq.] A. Coverage i. Both private and public sectors ii. Private employers with 15 or more employees iii. All state and local public employers iv. States enjoy no 11th A. immunity [Fitzpatrick v. Bitzer] B. Bans race, color, religion, sex, and national origin discrimination in employment C. Legal frameworks for bringing Title VII claims: i. Disparate treatment: Intentional discrimination (a) McDonnell Douglas framework [McDonnell Douglas v. Green] (1) Plaintiff proves prima facie case (2) Employer articulates legitimate, nondiscriminatory reason (3) Plaintiff proves employer’s reason is pretextual (b) Mixed motive [Price Waterhouse v. Hopkins] (1) Employer’s defense: Would have taken same action absent discriminatory reason (2) Plaintiff still entitled to declaratory relief and attorneys’ fees [§2000e-5(g)(2)(B)] (3) Plaintiff may rely on direct or circumstantial evidence to prevail in a mixedmotive case [Desert Palace, Inc. v. Costa] (c) Facial discrimination: Employer admits it discriminates (1) Employer’s defense: Bona fide occupational qualification (BFOQ) (2) An affirmative action plan ii. Disparate impact: Unintentional discrimination [Griggs v. Duke Power Co.] (a) Plaintiff identifies a neutral employment practice that injures a protected class (b) Employer’s defense: Business necessity D. Race discrimination i. BFOQ defense unavailable ii. Any race may bring suit, even against member of same race iii. Harassment: Hostile work environment iv. Affirmative action (a) Court-ordered [§2000e-5(g)]: Need finding of prior discrimination by employer (b) Voluntary: Easier at hiring stage; rejected at layoff stage (c) Before employer can engage in intentional discrimination in order to remedy an unintentional disparate impact, employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the raceconscious discriminatory action [Ricci v. DeStefano] E. Sex and pregnancy discrimination i. Sex stereotyping ii. Pregnancy Discrimination Act (PDA) bars bias based on pregnancy or abortion; employer duty is to treat pregnant employees same as nonpregnant employees; PDA does not apply retroactively [AT&T Corp. v. Hulteen] iii. Pregnant worker proves disparate treatment under McDonnell-Douglas by showing that she is pregnant, she sought an accommodation, the employer did not accommodate, and the employer accommodated others similarly situated [Young v. UPS] iv. Sexual harassment (a) Quid pro quo (b) Hostile work environment [Meritor Sav. Bank v. Vinson]; need not prove psychological injury [Harris v. Forklift Sys., Inc.] (1) Harassment by supervisors; discussing scope of supervisor liability rule under Title VII [Vance v. Ball State Univ.]; employer is per se liable for sexual harassment by supervisor when employee suffers tangible employment action [Faragher v. City of Boca Raton]; when employee suffers no tangible employment action, employer defense: [a] That it exercised reasonable care to prevent and correct harassment promptly [b] Employee unreasonably failed to avail self of corrective option [Burlington Indus., Inc. v. Ellerth] (2) Constructive discharge due to a hostile work environment attributable to a supervisor states a claim under Title VII [PA State Police v. Suders] (c) Same-sex sexual harassment [Oncale v. Sundowner Offshore Servs., Inc.] versus sexual-orientation harassment (d) Consent is no defense: Sexual overture must be unwelcome v. Sex BFOQ; women prison guards posed safety hazard [Dothard v. Rawlinson] vi. Sex discrimination in pension plans [Los Angeles Dep’t of Water & Power v. Manhart] vii. Lilly Ledbetter Fair Pay Act of 2009: A biased wage decision occurs each time compensation is paid pursuant to the discriminatory compensation decision F. National origin i. Speaking English fluently [Fragante v. City & Cnty. of Honolulu] ii. English-only laws iii. Hostile work environment iv. Height and weight rules assessed under disparate impact analysis G. Religion [§2000e-(j)] i. Employee’s prima facie case: Employer cannot make applicant’s religious practice a factor in employment decisions [EEOC v. Abercrombie & Fitch Stores Inc.]; prove practice is religious, prove religious belief is sincerely held, inform employer of conflict, and suffer discriminatory treatment ii. Most common conflicts: Being required to work on employee’s Sabbath, grooming, and wearing religious garb at work iii. Employer’s duty of reasonable accommodation iv. Employer’s defense: Undue burden (a) Need only prove de minimis burden [Trans World Airlines, Inc. v. Hardison] (b) Employer must offer reasonable accommodation but need not show that each of employee’s alternatives is undue hardship [Ansonia Bd. of Educ. v. Philbrook] (c) Ministerial exception bars minister’s termination suit against church [HosannaTabor Evang. Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n] H. Other Title VII defenses i. Bona fide seniority system [§2000e-2(h)] ii. Bennett Amendment bars sex-based wage bias claims where gap is authorized under 1 of the 4 defenses of EPA [§2000e-2(h)] I. Retaliation claims [§704(a)] i. Adverse employment actions are not confined to those that are job related or occur at the workplace; any employer action that would dissuade a reasonable worker from filing a Title VII claim suffices [Burlington N. & Santa Fe Ry. Co. v. White]; Title VII retaliation claims must be proved by “but-for” causation [University of Texas v. Nassar] ii. §704(a) bars retaliation against both current and former employees [Robinson v. Shell Oil Co.]

iii. Title VII’s antiretaliation provision covers employee who i. Enforcement procedures follow FLSA ii. Willful: Employer knows or acts with reckless disregard; speaks out about bias not on own initiative but in answering (a) Employer liability is similar to FLSA [29 C.F.R. no compensatory or punitive damages questions [Crawford v. Metro. Gov’t of Nashville] §1620.33] • Older Workers’ Benefit Protection Act (OWBPA) [29 U.S.C. iv. Title VII recognizes third-party retaliation for persons (b) Except enforcement of EPA was transferred from the §623(f)(2)(B)(ii)] who did not themselves engage in protected activity Department of Labor to EEOC A. Benefits: Older employees’ benefits may be less than those [Thompson v. N. Am. Stainless, LP] (c) Lilly Ledbetter Fair Pay Act of 2009 [Public Law No: for younger employees if cost is the same for both classes v. Constructive discharge claim accrues when employee gives 111-2] reset the 180-day statute of limitations for equal [§623(f)(2)(B)(i)] a notice of resignation [Green v. Brennan] pay lawsuits under EPA B. Regulates early retirement programs J. Title VII procedure [§706] ii. Either EEOC, employee, or class may sue for back pay, liq- C. Regulates when waivers of ADEA rights are enforceable: i. File charge with EEOC or state agency; candidates denied uidated damages, and attorneys’ fees (mandatory) i. Waivers must be voluntary and knowing [§623(f)] jobs filed a timely EEOC charge because new viola(a) EEOC may seek injunction ii. Employees who sign releases and receive money do not tion occurred each time city hired from its eligibility list (b) Two-year statute of limitations if violation nonwillful; waive ADEA claims unless waiver satisfies OWBPA having disparate impact on African Americans [Lewis v. 3 years if violation is willful [29 C.F.R. §1620.33(b)] requirements [Oubre v. Entergy Operations, Inc.] Chicago]; courts can review if EEOC has fulfilled its Title iii. Criminal sanctions D. Differential treatment based on pension status does not per VII duty to conciliate [Mach Mining, LLC. V. EEOC] (a) $10,000 fine for first offense se constitute discrimination “because of ” age [KY Ret. Sys. ii. EEOC may sue employer; whether to enforce or quash (b) Prison for second conviction [29 C.F.R. §1620.338] v. EEOC] EEOC subpoena is reviewed for abuse of discretion iv. Supervisors may be individually liable • ADA [42 U.S.C. §§12101–12213 (1990)] [McLane Co. Inc. v. EEOC] v. Employer’s good faith is no defense but renders violation A. Coverage: Both private and public employment sectors iii. Attorney general may sue state [§§2000e-5(f), -6] nonwillful i. 11th A. immunity: State employees cannot sue state iv. All district court proceedings under Title VII are de novo • Comparable worth (a.k.a. pay equity) employers for damages under ADA [Bd. of Trustees of the v. Complaint need not contain specific facts establishing a A. Definition: Compares wage rates for jobs held mostly by Univ. of AL v. Garrett] prima facie case of discrimination; must contain only a short women with jobs held mostly by men that provide equal ii. Same coverage as Title VII and plain statement of the claim showing that the pleader is value to employers B. Definition of disability entitled to relief [Swierkiewicz v. Sorema N.A.] B. Not cognizable under EPA: Jobs are not substantially equal i. A physical or mental impairment that substantially limits K. Title VII remedies work [Cnty. of Washington v. Gunther] 1 or more major life activities [§12102(2)] i. Injunctions, reinstatement, and retroactive seniority C. Not cognizable under Title VII: Market force defense (a) “Transitory impairments” not covered by ADA and ii. Back pay is limited to 2 years before the filing of the charge [AFSCME v. WA] for which no reasonable accommodation is required, with the EEOC D. States: Massachusetts limits inquiries about applicants’ prior defined as lasting 6 months or less (2008 ADA A.) iii. Compensatory damages: Front pay is not an element salaries; twenty states recognize comparable worth theory for (b) “Episodic conditions” and conditions in remission are of compensatory damages [Pollard v. E.I. DuPont de public employment; MN is key state recognizing comparable covered if they substantially limit a major life activity Nemours & Co.] worth [MN Stat. §§471.991–999] (2008 ADA A.) iv. Punitive damages E. Collective bargaining (unions negotiating over comparable (c) Impairments are evaluated in their unmitigated state v. Attorneys’ fees to prevailing parties; attorneys’ fees should worth) except for eyeglasses and contact lenses (2008 ADA A.) rarely include an enhancement for extraordinary perfor- • ADEA [29 U.S.C. §§621–634] (d) Symptomatic HIV+ employees are disabled per se mance [Perdue v. Kenny A.]; attorneys’ fees awarded under A. Coverage: Protects employees age 40 and older; bans man[Bragdon v. Abbott] the Equal Access to Justice Act are payable to litigants, not datory retirement ii. A record of such impairment their attorneys [Astrue v. Ratliff]; a favorable ruling on i. Covers both private and public employment iii. Being regarded as having an impairment merits is not needed for defendant to be a prevailing party (a) 11th A. immunity: State employees cannot sue state iv. Bans bias against employee who associates with disabled when plaintiff ’s claim is frivolous [CRST Van Epedited, employer in federal court for money damages [Kimel people [§12112(b)(4)] Inc. v. EEOC] v. FL Bd. of Regents] C. Definition of qualified individual vi. 1.5 million member class cannot be certified [Wal-Mart (b) Exceptions: Suits by federal government, suits against i. Does not include current drug users [§12210(a)] Stores v. Dukes] state agents in their individual capacities, suits for ii. Employer may screen applicants with history of drug use L. Arbitration in lieu of litigation injunctive relief, and suits against cities and counties [29 C.F.R. §1630.3] i. A provision in a CBA that clearly and unmistakably that are not subdivisions of state; state may waive 11th iii. Social Security Disability claimant does not per se disrequires union members to arbitrate ADEA claims is A. immunity qualify employee from ADA protection [Cleveland v. enforceable [14 Penn Plaza LLC v. Pyett] (c) ADEA allows mandatory retirement of police officers Policy Mgmt. Sys. Corp.] ii. A general arbitration clause in a CBA does not bar suit and firefighters D. Plaintiff ’s prima facie case: ADA explicitly adopts under the Americans with Disabilities Act (ADA) unless ii. Private-sector employment McDonnell Douglas framework [§12112(b)(6)] waiver is clear and unmistakable [Wright v. Universal (a) Employers with 20 or more employees [§630(b)] E. Preemployment medical exams and inquiries [§12112(d)] Mar. Serv. Corp.] (b) Permits dismissals based on age of highly paid execui. Excludes physical agility tests [29 C.F.R. §1630.14(a)] iii. Federal Arbitration Act (FAA) only exempts employment tives [§631(c)] ii. Permits questions on whether applicant can perform the job contracts covering transportation workers [Circuit City (c) Permits mandatory retirement of airline pilots at age 60 iii. After offer of employment, employer may conduct medical Stores, Inc. v. Adams] [W. Airlines v. Criswell] exam of all new employees [§12112(d)(3)] iv. Under FAA, arbitrator, not court, decides whether B. Disparate treatment iv. Voluntary medical exams permitted [§12112(d)(4)] arbitration agreement is unconscionable [Rent-A-Center i. Disparate treatment claims under ADEA largely modeled on F. Employer’s duty of reasonable accommodation (making workW. v. Jackson]; Stolt-Nielsen S.A. v. Animal Feeds Int’l McDonnell Douglas framework under Title VII; plaintiff place accessible and usable) [§12112(b)(5)(A)]: Job reassignCorp. opens the door to express waivers of class arbitramust prove he/she: ment, modified work schedule; no duty to accommodate tion under the FAA; arbitrator can order class arbitration (a) Is at least 40 years old nondisabled employee owing to employee’s ties to disabled [Oxford Health Plans v. Sutter] (b) Is a competent employee family member, and employers need not accommodate v. FAA does not bar EEOC from suing employer for ADA (c) Suffered adverse employment action medical marijuana users in the workplace violation, even though employee is bound by arbitration (d) Was replaced by younger employee; need not be G. Employer’s defense is undue hardship [§12112(b)(5)]; agreement [EEOC v. Waffle House, Inc.] replaced by someone under 40 years old; even 68-yearfactors are cost, employer’s onsite resources, employer’s vi. FAA preempts state law rendering class action waiver old replaced by 65-year-old states claim [O’Connor v. overall resources, and nature of operation unconscionable [AT&T Mobility v. Concepcion] Consol. Coin Caterers Corp.] H. ADA recognizes hostile work environment claims (e.g., vii. When waiver of statutory rights is clear in individual con(e) “Me, too” evidence testimony by coworkers that they Cannice v. Norwest Bank IA N.A.) tract of employment, employee’s exclusive forum is arbitrawere also discriminated against on basis of age by other I. Antiretaliation provision [§12203] tion [Gilmer v. Interstate/Johnson Lane Corp.] supervisors is not subject to a per se rule of admisi. Remedies include compensatory and punitive damages M. Genetic Information Nondiscrimination Act of 2008 bars sibility under the ADEA [Sprint/United Mgmt. Co. v. ii. No right to jury trial [Kramer v. Banc of America employers from requiring or requesting that one undergo Mendelsohn] Securities, LLC] a genetic test as a condition of employment; bars bias on ii. Mixed-motive disparate treatment framework not available J. ADA procedures, enforcement, and remedies are identical basis of “genetic information”; same coverage and remedies under ADEA [Gross v. FBL Fin. Servs., Inc.] to those under Title VII as Title VII, but no disparate impact claims allowed C. Disparate impact: Cognizable under ADEA [Smith v. City • Reconstruction Civil Rights Acts • State antidiscrimination statutes of Jackson, MS] A. §1981 A. Most modeled on Title VII D. Harassment, retaliation, and constructive discharge claims all i. Bans only race discrimination in private employment B. Expanding grounds beyond Title VII: Antinepotism laws, ban cognizable under ADEA; absence of explicit antiretaliation ii. Discrimination based on ancestry or ethnicity covered as on sexual orientation bias, ban on marital status discriminaprovision in federal-sector part of ADEA does not preclude well [Saint Francis Coll. v. Al-Khazraji] tion, and ban on bias based on weight or appearance retaliation claims [Gomez-Perez v. Potter] iii. Covers discrimination against whites as well [McDonald v. • EPA [29 U.S.C. §216(d)] E. Voluntary affirmative action for older employees permisSanta Fe Trail Transp. Co.] A. Coverage: Both private and public employers sible; employers may favor older employees over younger iv. Plaintiff must prove intent but need not prove racial i. Shares same basic coverage as FLSA ones, even younger ones older than 40 [General Dynamics animus [Ferrill v. Parker Group, Inc.] ii. White-collar exemption under FLSA does not govern EPA Land Sys., Inc. v. Cline] v. Retaliation claims: Complaining to employer about [29 C.F.R. §1620.1(a)(1)] F. Employer defenses dismissal of another is protected activity [CBOCS W. v. B. Key provisions i. BFOQ, business necessity, and bona fide seniority system Humphries] i. Employers must pay men and women equal pay for equal ii. Business necessity defense is inapplicable under ADEA vi. Remedies: Uncapped compensatory and punitive damage work [Meacham v. Knolls Atomic Power Labs.] awards ii. Plaintiff ’s prima facie case: Need not prove intent iii. Reasonable factors other than age (RFOA) [§623(f)(1)] B. §1983 (a) Equal work: Employee bears burden of proving that (a) Most common employer defense under ADEA i. Must establish state action 2 jobs are substantially equal (need not be identical) (b) Decisions based on years of service: Not per se age ii. Plaintiff must prove intent [Washington v. Davis] [Corning Glass Works v. Brennan] based [Hazen Paper Co. v. Biggins] iii. Legal vehicle for suing state for constitutional or federal (b) Four factors: Equal skill (e.g., experience, training, educa(c) Employer bears burden of production and persuasion law violations (e.g., 1st A. protects public employees tion), equal effort (amount of physical or mental energy), in making RFOA defense [Meacham] engaging in protected political activity [Heffernan v. City equal responsibility (level of accountability), and similar G. Enforcement of Paterson, NJ]); public employees cannot be forced working conditions (surroundings [e.g., toxic chemicals] i. Enforcement procedures mostly follow FLSA pattern by a union they do not wish to join or support to suband hazards [i.e., risk of injury versus risk of crime]) ii. Employee must give EEOC chance to settle case [§626(b), sidize speech on matters of public concern [Harris v. iii. Antiretaliation provision: Some courts apply Title VII’s (c), (d)] Quinn]; agency fees violate freedom of association [Janus McDonnell Douglas burden-shifting framework iii. Agreements to arbitrate rather than litigate age bias claims v. AFSCME]; public employee’s sworn testimony is speech C. Employer defenses [§206(d)(1)] when unequal pay is the are enforceable [Gilmer v. Interstate-Johnson Lane Corp.] on a matter of public concern [Lane v. Franks] result of bona fide merit system (skill, speed, accuracy, experi- H. Remedies iv. Both state and federal courts may hear [§1983 claims] ence), piece-rate system, seniority system, or differential based i. Back pay, liquidated damages if employer’s act is willful, v. Government employees may be sued individually and in on any other factor other than sex reinstatement or front pay in lieu of reinstatement, retroacofficial capacity for damages [KY v. Graham] D. Enforcement and remedies tive seniority, attorneys’ fees and costs [§626(b)] 4

Fair Treatment & Protected Classes (continued ) vi. Remedies: Damages and possibly punitives (but muni­ cipalities are immune from punitive), back pay, injury to reputation, and mental distress C. §1985 supports a claim for 3 types of conspiracies: i. To block a federal officer from performance of duties ii. To obstruct justice by intimidation or interference with a party, witness, or juror iii. To deprive a person (or class) of Equal Protection or rights and privileges

Immigration Reform & Control Act [8 U.S.C. §1324b]

• Prohibitions for employers A. Hiring undocumented aliens B. Discriminating against any individual based on his/her national origin or citizenship status [§1324(b)(a)(1)(A), (B)] C. State statute criminalizing undocumented aliens whose work is preempted [AZ v. U.S.] D. State statute penalizing employers who hire undocumented aliens is not preempted [Chamber of Commerce of the U.S. v. Whiting] • Employer’s duties A. Verifying U.S. citizenship [§1324(b)(3)]: U.S. passport, a

certificate of U.S. citizenship, or a certificate of naturalization or a resident alien card B. Complete verification within 3 business days of hire C. Preserve verification form for 3 years [§1324(b)(3)] D. Examine documents to see if reasonably genuine [§1324(b) (1)(A)] • Penalties: Civil and criminal • Remedies: Injunctions and back pay; NLRB cannot award back pay to illegal alien unlawfully fired for engaging in union activity [Hoffman Plastic Compounds, Inc. v. NLRB]

Veterans’ Preference Laws

• Federal laws A. Vietnam-Era Veterans’ Readjustment Act of 1972 [38 U.S.C. §2012]: Government contractors must grant disabled Vietnam-era veterans preference in hiring over other disabled veterans if qualified [§4103A(a)(1)] B. Vietnam-Era Veterans’ Readjustment Assistance Act: Military reservists attending reserve training over 3 months must be reemployed to former job [Carlson v. NH Dep’t of Safety] C. Veterans’ Reemployment Rights Act [38 U.S.C. §2021]: Public employers cannot deny reemployment to employees serving reserve duty [§2021(b)(3)]

D. Uniformed Services Employment & Reemployment Rights Act of 1994 [38 U.S.C. §4323(c)(2)] i. Bans employment discrimination against employees serving in military ii. Service members returning from military service must notify employer of intent to return [§4312(e)(1)(a)(I)] iii. Entitled to unbroken pension participation, vesting, and benefits; same seniority, status, and pay as if never left iv. Employers owe a duty to reasonably accommodate a disability v. Employer liability under “cat’s paw” theory [Staub v. Proctor Hosp.] • State veterans’ preference laws A. Grant veterans hiring preference in public employment by adding points on civil service exams (e.g., CA Gov’t Code §48973) B. Some states grant vets preference in promotions, seniority, and in avoiding layoffs (e.g., FL Stat. §295.08) C. Even absolute vet preference does not amount to sex discrimination under Equal Protection despite its disparate impact on women [Feeney v. MA]

PUBLIC SECTOR: SPECIFIC RULES & REGULATIONS • Collective bargaining F. Sex discrimination in public pensions: Equal Protection (3) Random testing usually upheld where public safety is violation [City of Los Angeles v. Manhart] at stake A. Influence of NLRA, which excludes public sector [24 U.S.C. • §1983 claims: Saucier v. Katz and Pearson v. Callahan set §152(2)] (4) Postaccident testing; special needs exception to warrant B. Many state statutes governing public-sector collective out 2-step analysis for public officials’ qualified immunity requirement [Skinner v. Railway Labor Executives Association] bargaining are modeled on NLRA (e.g., AK Stat. §23.40.110) under §1983; defendant is the state or a subdivision of i. Exclusivity of union representation (e.g., MI Stat. the state; qualified immunity for government contractors (e) Polygraph and psychological testing [Filarsky v. Delia] §179.67(1)) (f) Seven state constitutions (AZ, CA, HI, IL, LA, MO, A. Violations of federal laws ii. Defining ULPs (e.g., VT Stat. Ann. tit. 3, §§961, 962) WA) expressly recognize a constitutional right of privacy in private employment C. Meet and confer statutes: Employer only owes a duty to B. Constitutional violations i. 1st A. iii. 5th A. right against self-incrimination listen to union proposals (a) Free speech: Pickering-Connick-Garcetti test (a) Privilege violated if employee fired for refusing to waive D. Constitutional protection for public-sector collective bar(1) Is speech of private or public concern [Connick v. right gaining Myers]? Look at content, form, and context of speech; (b) Polygraph testing permissible unless results used i. 1st A. and Equal Protection claims usually fail was speech pursuant to employee’s job duties? If so, in criminal proceeding or employee threatened with ii. Freedom of association: Right of public employees to employee loses [Garcetti v. Ceballos] discipline for refusing to waive privilege form and join a union [AFSCME v. Woodward] iv. 14th A. Due Process (2) Only if speech touches on matter of public concern, E. State labor boards conduct union election/adjudicate ULPs (a) Procedural balance employee’s right to speak out on matters F. Duty to bargain in good faith modeled on NLRA (1) Property interest in job: Can only fire for cause; of public concern [Pickering v. Bd. of Educ.] with G. Meet and confer states: No duty to bargain to impasse state law determines if public employee has propemployer’s right to run efficient workplace; don’t need • Civil service erty interest in job [Perry v. Sindermann]; entitled actual disruption; potential disruption sufficient A. Classified versus unclassified employees to notice; hearing is usually pretermination; at-will B. Aim: To substitute a merit system in place of spoils system (b) Freedom of association: Right to join a labor union; employees have no property interest in job C. Protect public employees from politics [Rutan v. Republican laws against police associating with felons; midyear (2) Liberty interest: All public employees, even at-will, Party] union dues increase requires Hudson notice and enjoy liberty interest; injury to reputation not D. Public officers are excluded from civil service protection nonmembers must affirmatively consent [Knox v. Serv. enough: slur must alter employee’s economic status [15A Am. Jur. 2d, Civil Service §15] Emps. Int’l Union] and be stigmatizing [Paul v. Davis]; requires public E. Civil service commissions’ functions: (c) Free exercise of religion: Religious tests for public office, disclosure; name-clearing hearing is posttermination i. Executive or administrative religious objections to workplace policies, and wearing and no damages or reinstatement ii. Promulgate rules and regulations religious garb at work; Petition Clause: 1st A. retaliation (b) Substantive: When fundamental rights are infringed • Political activity liability under the Petition Clause is limited to matters of (e.g., rule against hiring married applicants) and when A. Federal Hatch Act [5 U.S.C. §§1501–1508] public concern [Borough of Duryea v. Guarnieri] revoking professional licenses i. To ensure political neutrality in federal employment ii. 4th A. protects against unreasonable searches and seizures v. 14th A. Equal Protection: Plaintiff must prove intent ii. Bans partisan political acts (a) Searches of public employee workplace subject to 4th (a) Race discrimination: Strict scrutiny iii. Permits nonpartisan political acts A. [O’Connor v. Ortega]; public employer may search (b) Affirmative action: Strict scrutiny iv. Penalties range from 30 days unpaid suspension to removal employee’s text messages on city-issued pager if employer (c) Sex discrimination: Intermediate scrutiny from office has “a legitimate work-related purpose” for inspecting the (d) Sexual orientation, age, and disability discrimination: B. State little Hatch Acts communications [City of Ontario v. Quon] Rational basis analysis [New York City Auth. v. Beazer] i. All states also limit political acts of state employees (b) Employee’s expectation of privacy determined on case(e) Right to travel: Residency rules [Wardwell v. BOE]; ii. Most modeled on federal Hatch Act by-case basis (strip searches versus surveillance of work strict scrutiny for interstate, rational basis for intrastate iii. Distinguishes between partisan and nonpartisan elections area); NASA’s background check did not violate federal (f) Equal Protection does not provide a cause of action • Public pensions contract employees’ 4th A. right to informational to a public employee claiming her dismissal was for A. Not governed by Employee Retirement Income Security Act privacy [NASA v. Nelson] arbitrary, vindictive, or malicious reasons; “class of one” B. Originally treated as gratuities; now, as deferred compensa(c) Balance employee’s privacy interest against public claims [Engquist v. OR Dep’t of Agric.] tion (e.g., MA G. L. c. 32, §25(5)) employer’s need for efficient workplace • Bivens actions: Bivens v. Six Unknown Named Agents C. Right to pension benefits vest upon acceptance of employment (d) Drug testing A. Suits against federal government D. Most public pension programs are defined benefit plans (1) Preemployment B. For violations of the U.S. Constitution and federal law (e.g., FL Stat. §121.091) (2) Routine periodic testing; urinalysis upheld as compel- C. Federal Public Health Service employees enjoy absolute E. U.S. Constitution Contracts Clause protects public ling governmental interest for gun-toting customs immunity from constitutional tort claims arising out of the pensions from unilateral alteration or termination employees [Nat’l Treasury Emps. Union v. Von Raab] scope of their employment

RETIREMENT ISSUES Employee Retirement Income Security Act (ERISA) [29 U.S.C. §§1011–1145]

B. Vesting i. Benefits must vest (i.e., become nonforfeitable) within set time, usually 5 years, and 100% vesting at 7 years [§1053] ii. Pensions may not be assigned or alienated (spendthrift provision) [§1056(d)]; exception: qualified domestic relations order (e.g., alimony, child support) iii. Vested pension benefits are nonforfeitable (contrast with public pensions, which may be forfeited after criminal conviction, such as bribery) iv. Participants must begin drawing down pension at age 70 v. Retirement Equity Act of 1984 [29 U.S.C. §1052(b)(5)(A)] authorizes up to 5 years of parental leave without losing pension rights C. Fund management: Plan designates fiduciary and trustee to administer plan [§1102(a)] D. Fiduciary duties [§1104]: Fiduciaries must act for exclusive purpose of: i. Providing benefits to participants and beneficiaries ii. Defraying administrative expenses of plan; fiduciaries cannot attach participant’s assets since remedy is not equitable [Montanile v. Bd. of Trustees of the Nat’l Elevator Indus. Health Benefit Plan] iii. No conflict of interests [§1104]: Exclusive benefit rule (a) Duty of loyalty [§1104(1)(A)] (b) Duty of prudence [§1104(1)(B)] (c) Duty of diversification [§1104(1)(C)]

• Covers only private-sector employers engaged in commerce [29 U.S.C. §1003(a)(1)] • Excludes public employers, religious entities, plans governing workers’ compensation, unemployment compensation, and disability benefits • Welfare plans are exempt from participation, vesting, funding, and plan termination rules • Title I [§§1011–1145] rules governing: A. Participation i. ERISA does not require any employee benefits ii. Employees allowed to participate in pension plan after 1 year of service [§1052] iii. Types of pensions (a) Defined benefit: A fixed monthly amount for life based on salary and years of service; may be lost if employer goes bankrupt (b) Defined contribution: Based on employee and employer contributions; unaffected by employer’s bankruptcy (e.g., 401(k)) (c) Cash balance: Hybrid between defined benefit and defined contribution (under ERISA, treated as defined benefit); based on yearly credits of cash and interest credits; validated by Pension Protection Act of 2006; typically used by employers to switch from defined benefit plans 5

Retirement Issues (continued ) iv. Investment in employer’s stock capped at 10%; exceptions: defined contribution plans [§§1104(a)(2), 1107(b)(1)] and employee stock ownership plans [§1104(a)(2)] v. Fiduciary liability to restore lost profits, removal [§1109], and penalty of 20% recovered [§1132(1)] vi. Fiduciary exercises discretionary authority in managing plan assets, renders investment advice for a fee, and enjoys discretionary administrative authority [§1002(21)(A)]; generally, employer is not a fiduciary but acts more like a settlor of a trust [Lockheed v. Spink] E. Reporting and disclosure i. Duty to furnish participants with summary plan descriptions [§1022] ii. Plan must file annual financial reports (identify workers whose benefits have vested and amount of benefits) [§§1023, 1024] F. Administration and enforcement i. Federal enforcement (a) Department of Justice prosecutes criminal violations (b) Treasury Department regulates plan qualification and deductions (c) Department of Labor regulates fiduciary conduct, receives reports, and prosecutes civil violations ii. Plan participants and beneficiaries may bring civil actions for any breaches of Title I [§1132(a)]; suit must be brought within 6 years of fiduciary breach [Tibble v. Edison International] iii. ERISA claimant entitled to attorneys’ fee if there is “some degree of success on the merits” [Hardt v. Reliance Standard Life Ins. Co.] (a) Only equitable relief (no damages recoverable); ERISA relief is recoverable even absent detrimental reliance [CIGNA Corp. v. Amara; 131 S.Ct. 1866] (b) Judicial review of denial of benefits: (1) Abuse of discretion (used when plan grants fiduciary discretion in allowing benefits) (2) De novo review (used when plan is silent) [Firestone Tire & Rubber Co. v. Bruch] (3) ERISA plan administrator’s interpretation is entitled to deference even after reversal for violating ERISA [Conkright v. Frommert]

iv. Ban on discrimination or retaliation against employee for exercising ERISA rights (must prove intent) [§1140] • Title II: Tax laws governing both welfare and pension benefit plans A. Qualified pension and welfare benefit plans: Contributions are tax-deductible B. Employees need not report any contributions as income until they receive pension benefits C. §§1201–1242: Jurisdiction, administration, and enforcement • Title IV: Pension Benefit Guaranty Corp. (PBGC), plan termination insurance, and multiemployer plans • Preemption A. ERISA preempts state laws that relate to any employee benefit plan [§1144(a)]; 2 tests: connection with test and refer to test; state statute requiring health insurers to report payments for database preempted [Gobeille v. Liberty Mutual Insurance] B. Exceptions i. Savings Clause: State laws regulating insurance, banking, or securities [§1144(b)(2)(A)] ii. Qualified domestic relations orders iii. Criminal laws C. Deemer Clause: Self-insured plans do not constitute insurance [FMC Corp. v. Holliday]

B. Social Security surplus (until 2017) invested in long-term, low-risk U.S. government bonds • Constitutional issues A. Due Process: Rights to Social Security benefits are noncontractual, nonproperty interests; more like a gratuity; therefore, changes to program permissible so long as not patently arbitrary [Flemming v. Nestor] B. Gender bias in Social Security benefits outlawed [Califano v. Goldfarb]

Retiree Health Care

• Medicare Prescription Drug Modernization & Improvement Act of 2003 A. Expanded Medicare to cover some prescription drug costs B. PPACA will reduce retiree health care “donut hole” by 2020 • Underfunding A. Unlike pension plans that are largely prefunded (90%), retiree health care plans are woefully underfunded (22%) B. ERISA does not impose funding requirements on retiree health care plans • Modification of lifetime retiree health care benefits A. Presumption against vesting i. “Lifetime” means good for life unless revoked or modified, assuming plan contains clear reservation clause Old-Age Social Security Pension Benefits ii. This view is supported by ERISA, which does not prescribe • Credit system vesting requirements for welfare plans A. Need 40 credits (10 years) B. Presumption in favor of vesting B. Employee gains 1 credit for each $970 earnings in a quarter i. “Lifetime” means vested benefits cannot be modified C. Maximum credits: 4 per year ii. This view is supported by doctrine of promissory estoppel • Calculating benefits: Based on wages for best-paid 35 years of work C. No presumption either in favor of or against vesting when • Benefits based on age plan contains no reservation clause or when plan contains A. Age 62: 25% reduction in benefits both lifetime language and reservation clause, rendering meaning B. Full benefits: Either age 66 or 67, depending on year of birth ambiguous (extrinsic evidence is admissible to clear up ambiguity) C. Benefits increase for each month claimant waits to retire after full D. Breach of fiduciary duty claims under ERISA rejected if promise retirement age, up to age 70 of lifetime benefits is coupled with reservation clause D. Age 70: Can start receiving benefits without having to retire • Retirees without health coverage • Financing A. COBRA: Continue coverage under former employer’s plan for 18 A. Tax on wages months B. HIPAA: Portability provision affords access to insurance without i. Employee pays 6.2% of first $90,000; employer pays 6.2% exclusions ii. Self-employed pays entire 12.4%

EMPLOYER PROTECTION B. Remedies: Injunction (only if legal remedy is inadequate) and • Protection of retiree benefits in bankruptcy [11 U.S.C. §1114] Employment-Related Torts damages A. Debtor-in-possession must continue paying retirement benefits • Negligence • Misrepresentation at prepetition levels [§1114(f)(1)] A. Negligent hiring A. Intentional (i.e., fraud); prima facie case B. Aim of §1114: To prevent debtor-in-possession from unilaterally i. Employer vicariously liable for intentional injuries inflicted i. Scienter: Affirmative lie, active concealment, and silence when terminating retiree benefits by employees on customers and clients, as well as other third there is a duty to speak C. Retiree benefits treated as administrative expense parties, even when injuries occur outside scope of employii. Material misrepresentation of material fact [§1114(e)(2)] ment so long as they are foreseeable [Anderson Trucking iii. Reasonable reliance D. Exceptions to continuation of retiree benefits: Serv., Inc. v. Gibson] iv. Injury i. Court, after notice and hearing, may order changes ii. Suits by employee for negligent hiring of coworker often v. Remedies: Damages, rescission, and constructive trust [§1114(e)(1)(A)] barred by workers’ compensation ii. Trustee and retiree representative may agree to changes B. Negligent retention: After hiring employee, employer learns of B. Negligent misrepresentation C. Innocent misrepresentation: Fraud minus scienter (no conse[§1114(e)(1)(B)] employee’s violent tendencies and fails to protect public [Doe v. quential damages) E. Prerequisites before debtor-in-possession may ask the court to XYC Corp.] modify retiree benefits [§1114(f)(1)]: C. Negligent training that results in foreseeable third-party injuries Bankruptcy i. Make proposal to retiree representative, spelling out changes [Madden v. Aldrich] • Procedures for a company seeking relief from its collective needed to permit reorganization of debtor • Defamation bargaining obligations [11 U.S.C. §1113] ii. Provide representative with relevant information needed to A. Prima facie case A. After filing for bankruptcy, debtor in possession or trustee must: assess proposal i. Defamatory statement must be communicated to third party i. Offer proposal to union, listing modifications of the CBA iii. Once conditions are met, the court holds hearing to decide (a) Compelled self-publication: When discharged employee necessary to permit reorganization whether modification is warranted communicates defamatory statement to third party [Lewis ii. Provide union with all relevant information necessary to • Role of the PBGC in bankruptcy v. Equitable Life Assurance Soc’y]; minority view assess proposal ii. Must be false and must harm employee’s reputation iii. During this period, trustee must meet with union and confer A. PBGC administers and enforces Title IV of ERISA B. When defined-benefit pension plan terminates with insufficient B. Employer defenses: Qualified privilege (which may be lost if in good faith over proposed contract modifications assets, PBGC becomes trustee, taking over the plan assets and abused) and truth B. A court may approve rejection of the CBA only if the court liabilities • Invasion of privacy finds that: C. Employer is liable to PBGC for benefits it pays out A. Intrusion into seclusion: Must be unreasonable or offensive i. Trustee has satisfied the 3 duties mentioned previously D. Aim of PBGC versus aims of Bankruptcy Code: (e.g., urinalysis, polygraph testing); Biometric Privacy Act [740 ii. Union refuses proposal without good cause i. Bankruptcy seeks to rehabilitate company ILCS 14/1] regulates collection, use, and storage of biometric iii. Balance of the equities favors rejection of the contract ii. PBGC seeks to encourage the continuation of pension benefits data for employment purposes • Priorities in bankruptcy for participants B. Public disclosure of private facts (e.g., disclosure of disciplinary, A. First priority: medical, or personnel records) i. Wages earned up to $10,000 but uncollected before bank- E. Plan terminations i. Voluntary: C. False light [Harris v. Dist. Bd. of Trustees of Polk Cmty. Coll.] ruptcy (up to 180 days) [§507(a)(4)(A)] (a) Standard: If plan has sufficient assets to pay all benefits D. Misappropriation of name or likeness ii. Prepetition claims for back-pay awards by a judicial or NLRB (b) Distress termination requires a petition for liquidation under • Intentional infliction of emotional distress or outrageous proceeding [§503(b)(1)(A)(ii)] bankruptcy laws, that the employer is reorganizing under conduct B. Second priority: Postfiling administrative expenses bankruptcy laws, that employer convinces PBGC of its A. Employer conduct so extreme and outrageous that it exceeds all i. Wage claims for postbankruptcy work (payable before most inability to both pay debts and continue in business, and that bounds of decency [Rest. 2d Torts §46 (1986)] other creditors) [§503(b)(1)(A)] employer convinces PBGC that its plan is unduly burdensome B. Outrageous conduct: May be based on recklessness if special ii. Welfare and pension benefits earned postbankruptcy (c) Neither type is permitted if violates CBA relationship exists [Bodewig v. Kmart, Inc.] C. Third priority: ii. PBGC may terminate a plan involuntarily despite CBA, but • Intentional interference with contractual relations i. Prepetition vacation pay earned within 90 days before filing up termination can be undone by PBGC A. Must involve third party (other than employer and employee; to $2,000 per employee [§507(a)(4)(A)] e.g., rival lures away highly skilled employee from current job ii. Prepetition pension claims incurred within 180 days of filing F. PBGC’s anti-follow-on policy is reasonable under ERISA [§4047; PBGC v. LTV Corp.] [Beverly Glen Music, Inc. v. Warner Commc’ns, Inc] up to $2,000 per employee

U.S. $7.95 Author: John Sanchez, JD, LLM

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NOTE TO STUDENT: This guide should be used only as a quick reference and supplement to course work and assigned texts. Due to its condensed format, it (1) does not include jurisdictional differences and (2) should not be relied upon as a substitute for more comprehensive legal studies or as a substitute for professional legal advice. BarCharts, Inc., its writers, editors, and design staff are not responsible or liable for the use or misuse of the information contained in this guide. 6