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Employment law

1. An "at-will" employee cannot be fired for which of the following?

a. absence from work due to bereavement.
b. absence from work due to broken car.
c. absence of work to take his wife to emergency room because of serious illness.
d. absence of work due to job interview

2. Crystal quits her job 6 months ago, and now calls you (the Human Resources manager) demanding a copy of her personnel file in a very unpleasant manner. Do you have to give him her file back?

a. Yes, an employee's personal information is her private property.
b. Yes, Federal law requires an employer to make an employee a copy upon request.
c. No, you never liked Crystal much and she isn't entitled to a copy under either LA or Federal law.
d. No, the doctrine of res ipsa loquitur applies.

3. Which of the following would likely be found actionable under sexual harassment laws?

a. a male supervisor repeatedly tells jokes that are offensive to female subordinates because they make fun of the subordinate's ethnic background.
b. A male supervisor repeatedly makes sexual comments to his female subordinate about one of his female colleagues behind her back.
c. A male supervisor always refuses to travel overnight with female subordinates.
d. A male supervisor mentions confidentially to a female subordinate that he and his wife are having trouble conceiving a child.

4. The Americans with Disability Act (ADA) is only applicable to employers with:
a. 10 employees or more.
b. 15 employees or more.
c. 1 employee.
d. Act applies to all employees.

5. Brandee, a supervisor at XYZ Co. keeps posters of nude men in the corner of her office. The posters:
a. Are her business and no concern to others.
b. Are not a problem unless someone complains.
c. May be a basis for proving sexual harassment.
d. Will likely increase the morale of employees.

6. After being denied a job at Caesar's Palace as a "greeter", Mike Tyson believes that his Title VII rights may have been violated and wants to file a lawsuit. Tyson may:
a. Bite off the supervisor's ear.
b. Exhaust his administrative remedies.
c. Proceed directly to Federal court.
e. None of the above.

7. The most important federal statute concerning employment discrimination is:
a. The Equal Pay Act
b. Fair Labor Standards Act
c. Title VII of the Civil Rights Act.
d. Employment discrimination is covered by common law, not by Federal.

8. John K, a supervisor refers to his Afghan employees in a racially derogatory manner and tells them that the company will not hire Afghan employees in the future. He taunts them with "You're a Taliban, a stinking Taliban!" comments when they walk by during work, and tells other workers that "we should have let those Towel heads stay at home with Osama." The Afghan employees will have a viable national origin claim if the supervisor's actions are motivated by:
a. Their place of origin.
b. Their linguistic characteristics.
c. Their association with the local organization of Afghan people.
d. All of the above.

9. An employer cannot be liable for illegal harassment if it tolerates harassment based on
a. sexual stereotypes
b. ethnic characteristics
c. work duties
d. speech impediments

10. Disparate treatment discrimination occurs when:

a. an employer hires a rational number of protected class employees.
b. An employer intentionally discriminates against members of protected classes.
c. Members of protected classes boycott an innocent employer.
d. Employees subject fellow employees to lewd or suggestive comments.

11. Which of the following is the best definition of a prima facie case?

a. a case that requires a burden of proof beyond a reasonable doubt.
b. A case that requires the plaintiff to exceed her burden of proof.
c. A case that rests on negligence.
d. A case in which the plaintiff produces sufficient evidence of her claim that the case could go directly to the jury unless the Defendant has an affirmative defense.

12. The Americans with Disabilities Act was enacted when?
a. 1964
b. 1973, along with the Rehabilitation Act.
c. 1986
d. 1990

13. If customers sexually harass employees and the employer does not address the problem, what may happen?

a. The employer will not be liable because the harassment was by a non-employee.
b. The employer will be liable only if she can exert control over the customer.
c. The employer will be liable only if she cannot exert control over the customer.
d. The employer may violate rules of etiquette, but not legal rules in this case.

14.Compliance with Title VII is monitored by which Federal agency?
a. O.S.H.A.
b. E.E.O.C.
c. Dept. of Labor
d F.T.C.

15. A full-time employee is entitled to how many hours of FMLA leave?
a. 340 hours
b.480 hours
c. 600 hours
d. 980 hours

16. Which of the following is NOT a necessary characteristic of a "disability" under the ADA?

a. it must be a physical or mental impairment that substantially limits on or more major life activities.
b. It must be an impairment that has lasted for more than one year.
c. The disabled person must be regarded as being disabled.
d. There must be a record of disability.

17. If a qualified job applicant has a disability but is suited for a job, what must the employer do?

a. not hire the applicant because she will probably cost more in terms of medical insurance premiums than will other employees.
b. not hire the applicant because the disability will be distracting.
c. Make reasonable accommodations for the employee, including flexible hours, different or modified training, ramps or elevators, or other changes.
d. Arrange reimbursement from the disabled employee to cover the cost of modifying the workplace or work procedures.

18. Renee works as a bookkeeper for Jamie's Tire Shop. She is often late for work and many days performs listlessly and without enthusiasm. Jamie is upset with the performance and wants to fire her so he can hire a more competent bookkeeper. However, when Jamie brings Renee to his office to let her go, she tells him that if he fires her, she'll sue under the ADA. "On what grounds?" Jamie asks. "Hey, I'm a drug addict, and I get high sometimes." Renee admits. What will happen if Jamie fires her?

a. Renee will be covered by the ADA.
b. She will not be covered by the ADA.
c. Jamie has violated Title VII
d. Jamie has violated Title VII, but Renee cannot collect because she contributed to her termination by poor work performance.

19. A few years ago, two men filed a gender discrimination claim with the EEOC against Hooters Restaurant, claiming that when Hooters failed to hire them, it violated Title VII of the Civil Rights Act. Hooters was not held liable by the EEOC. (Of course, the case settled after plaintiffs sued in Federal court after receiving a "right to sue" letter) What defense did Hooters probably rely on?

a. a diversity claim
b. that its waitresses worked on a permissible seniority system.
c. that gender was a bona fide occupational qualification at Hooters.
d. That the men were too ugly to work at Hooters.

20. Which of the following statements about labor union membership in the U.S. is correct.
a. It covered about 6% of the labor force in 1910.
b. It doubled to about 12% of the labor force by 1920.
c. It peaked at over 40% of the labor force in the early 50's.
d. It is down to below 13% today.
e. All of the above

21. Normally when you fire or discharge an employee, you must pay them on which of the following.
a. Immediately at the time of discharge pursuant to the FLSA.
b. At the next regular pay day.
c. By the 15th of the month pursuant to the FLSA.
d. Within one week pursuant to the FLSA.

21. After graduating from UOP, Renee takes a job with XYZ Widget Company in Baton Rouge for a salary of $75,000 plus 30% commission on all widgets sold. As part of her employment contract, XYZ requires Renee to sign a non-compete clause, that states in part "...employee, in consideration of the training received, company car and other benefits......does hereby agree, upon discharge from this company........ not to work for either a direct competitor of XYZ or other company in the widget industry within a distance of 100 miles of Baton Rouge, Louisiana for a period of two years from said date of discharge". Renee quits four months after joining XYZ to take a job for higher salary and commission at ABC widget in Lafayette. When XYZ sues Renee and ABC to enjoin her from working in the widget industry, who will win?

a. Renee, because a company can't lawfully restrain you from working under the 14th Amendment.
b. Renee, because of the Supreme Court ruling in Snow v Butler.
c. XYZ, because the non-compete clause is reasonable in distance and scope.
d. XYZ, because of the doctrine of sui generis.

22. The American Federation of Labor-Congress of Industrial Organization (AFL-CIO) performs all following functions except
a. engage in collective bargaining with employers
b. ensure enactment of pro-labor legislation
c. improve the image of the labor movement.
d. Reduce and resolve conflicts among various national unions.

23. There are 100 production employees in an appropriate bargaining unit. Sixty of those employees signed a petition to join a union. The NLRB held a secret ballot election. On the day of the election, only 50 employees voted. Of those 50, 26 voted for the union. Who is represented by the union?

a. The 60 employees who signed the petition
b. The 50 who voted in the election
c. The 26 who voted in favor of the union
d. All 100 employees.

24. A private employer with 50 employees institutes a reduction in force (RIF)in which eight positions are eliminated. Employee A's job as an estimator is eliminated and his job duties are redistributed between Employee B, a designer, and Employee C, a sales person. At the time of the RIF, Employee A was 55, Employee B was 39 and Employee C was 49. Can Employee A make out a prima facie case under the Age Discrimination in Employment Act (ADEA)?

a. No, because he was not replaced by anyone.
b. No, because he was not replaced by anyone in a protected class.
c. Yes, if other similarly situated, substantially younger employees were retained.
d. Yes, because the job duties previously performed by the estimator are still being performed by others at the company.

25. Four months after the Department schedule was adopted, Lakesha says that she has converted to a new religion, World Church of Lunarology, that prohibits her from working on Tuesdays or during a full moon. Under Title VII, must Lakesha's company accommodate her new beliefs?

a. No, because Lakesha's religious beliefs changed after she was hired.
b. As long as the company does not try to control her beliefs, she may be required to work as scheduled and fired if she cannot or refuse.
c. Yes, the company must accommodate her new religious beliefs as long as it does not cause an "undue hardship".
d. No, under the doctrine of sui juris.

26. After only 11 months on the job, Juanita must go to Mexico to care for her ailing mother. If your company is covered by the Family and Medical Leave Act (FMLA), must Juanita be given time off?
a. No, because the FMLA does not apply if the employee's relatives live outside the U.S., Guam, or the Northern Mariana Islands.
b. Yes, as long as Juanita has worked at least 1250 hours for your company and is assigned to a location with 50 other employees.
c. Not right now, but Juanita may be eligible to take time off to care for her mother next month when she reaches her anniversary date.

27. The two basic types of sexual harassment under Title VII are:
a. hostile environment and due diligence.
b. quid pro quo and demeaning attitude
c. hostile environment and quid pro quo
d. exclusionary harassment and hostile work environment.

28. XYZ Automotive employs 20 mechanics who are not represented by a union. Hector and Brandon are both mechanics at XYZ and have been friends since grade school. On Friday morning, a customer whose car Hector had repaired returned to complain that repairs were negligently made. Shortly thereafter, the supervisor calls Hector into the office to meet with him. Hector refuses to meet with him unless Brandon is present. The supervisor does not allow Brandon into the meeting and fires Hector when he refuses to meet without him. Is XYZ in violation of the National Labor Relations Act (NLRA)?

a. No, because XYZ Automotive is a non-union workplace.
b. No, because the other mechanics did not elect Brandon as their representative.
c. Yes, if Hector reasonably believed that the meeting could result in disciplinary action.
d. Yes, because XYZ Automotive did not have a rule prohibiting Brandon from attending the meeting with Hector.

29. In order to bring a lawsuit under the ADEA, how old must the plaintiff be?

a. 50 or older
b. 40 or older
c. 65 or older
d. Whatever the definition of "senior citizen" is in his/her jurisdiction

31. Why was the Norris-LaGuardia Act so important to the growth of labor unions?
a. it exempted labor unions from anti-trust laws.
b. it severely restricted the use of court injunctions to stop labor disputes.
c. it provided for the National Labor Relations Board
d. it provided that a company must bargain in good faith.

32. Patricia, your employee, has broken her leg. She brings in a note from a Christian Science practitioner stating she is under her treatment and that she should be released from work for at least five days. Does this qualify for FMLA protection?

a. No, the note must be a medical certification from a medical doctor and not a religious practitioner
b. No, the note is sufficient, but a broken leg is not covered by the FMLA.
c. Yes, a note from a Christian Science practitioner is OK, and the broken leg is a "serious health" condition.

33. What would be a correct statement about the "employment at-will" doctrine in the U.S.?

a. As an employer, you can hire or fire anyone you please, for whatever reason.
b. It is a common law doctrine that, although still valid, has been diminished by court rulings as well as federal legislative enactments.
c. Was explicitly overturned by the U.S. Supreme Court in U.S. v Weingarten.
d. Protects the employee from arbitrary action by an employer.

34. Pub-N-Prime Restaurant is a chain of eight restaurants, all located within 50 miles of each other. Each restaurant employs a minimum of 25 full-time employees. Pub-N-Prime #4 has a total of 34 employees. Is this covered by the FMLA?

a. No, you must have 50 employees in one location in order to be covered by the FMLA.
b. Yes, because there are more than 50 employees within 75 miles of each Pub-N-Prime Restaurant.
c. No, the "business necessity" rule of the FMLA exempts coverage.
d. No because the food industry is specifically exempted from the FMLA.

35. David H works as a branch manager at Union Planters Bank after graduating from UOP. Other employees are amazed to see David pull up in a 2003 Jaguar XJS convertible one day. "It's just a lease", he explains. "I couldn't afford to buy one of these". Private investigators appear at the bank one morning and tell David that they are there to investigate the disappearance of $100,000 on behalf of the Bank. As part of the investigation, they tell David they want to give him a polygraph examination. David remembers the Employment Law course he took at UOP and tells investigators he is invoking his rights under the Employee Polygraph Protection Act (EPPA). "I know my rights, Dude", he defiantly tells them. He further informs the Bank president that he can't be fired for refusing to submit to a polygraph exam pursuant to the Act. After the Bank fires David, does he have any grounds to sue?

a. Yes, the EPPA expressly prohibits employee polygraph examinations.
b. No, the Bank has the right to test him pursuant to EPPA.
c. Yes, this is a clear violation of the 4th Amendment and he will get big $.
d. No, the Omnibus Bank Crime Act of 1994 allows this testing.

36. The first Equal Pay Act was passed in
a. 1864
b. 1910
c. 1938
d. 1963
e. 1991

37. Employers in Louisiana have the right to require drug testing of applicants provided
a. that the applicant knows that it is part of the screening process
b. the employer has already offered the applicant the job
c. all applicants are tested
d. there are no restrictions as long as DHHS approved lab is used and medically reliable tests are utilized.
e. a and b
f. a, b, and c

38. Examples of disabilities that qualify under ADA are:
a. Muscular dystrophy
b. Broken arm
c. Gambling addiction
d. All of the above
39. An example of a reasonable accommodation might be:
a. Telephone equipment designed to help the hearing impaired
b. Allowing a cancer patient to start later and leave earlier
c. Changing workstation height and placement to make room for a wheelchair
d. All of the above.

40. The ADEA prohibits employers from
a. specifying an age preference in a job posting
b. asking an applicant their age or date of birth
c. refusing to hire an applicant on the basis of age
d. a and c
e. a, b, and c

41. OSHA was formed in
a. 1948
b. 1970
c. 1988
d. 1936
42. OSHA is an administrative agency under which Department
a. Department of State
b. Department of Homeland Security
c. Department of Labor
d. Department of Treasury

ESSAY QUESTIONS:
1. Discuss the evolution of the "Employment At Will" Doctrine in the United States and what it means within the employment law context today.

2. Discuss the steps an employer can take to minimize its exposure to possible employment litigation.

Solution Preview

1. C

2. B

3. A

4. D

5. C

6. C

7. B

8. D

9. C

10. B

11. B

12. D

13. C

14. B

15. B

16. B

17. C

18. B

19. B

20. B

21. C

22. B

23. D

24. A

25. C

26. C

27. C

28. A

29. B

31. B

32. B

33. B

34. A

35. A

36. D

37. F

38. D

39. D

40. E

41. D

ESSAY QUESTION 1

Employees in the USA are divided into two classes:

1. at-will employees
2. just-cause employees

An at-will employee in the USA can be terminated at any time, and for any reason - or no reason at all - and the courts will generally not intervene to protect the ex-employee from allegedly unfair treatment by the employer.

Just cause employees can be dismissed from employment only for a good reason, such as poor job performance by the employee.

According to various legal scholars, the doctrine of at-will employment first appeared as a statement in a legal treatise by Horace C. Wood, Master and Servant
Wood cited four American cases in support of his statement about at-will employment. However, none of those four cases support Wood's statement!

* Contract of Hiring - Duration, 11 A.L.R. 469, 476 (1921);
* J. Peter Shapiro and James F. Tune, Note, Implied Contract Rights to Job Security, 26 Stanford Law Review 335, 341-342, n.54 (1973-74);
* Jay M. Feinman, The Development of the Employment at Will Rule, 20 American Journal of Legal History 118, 126-127 (1976);
* Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W. 2d 880, 887, n.14 (Mich. 1980);
* Weiner v. McGraw-Hill, Inc., 443 N.E.2d 441, 444, n.5 (N.Y. 1982) (citing Joseph DeGiuseppe, Effect of the Employment-At-Will Rule on Employee Rights to Job Security and Fringe Benefits, 10 Fordham Urban Law J. 1, 6 and n.13 (1981));
* Magnan v. Anaconda Industries, Inc., 479 A.2d 781, 784, n.8 (Conn. 1984) ("Scholars and jurists unanimously agree that Wood's pronouncement in his treatise, Master and Servant § 134 (1877), was responsible for nationwide acceptance of the rule. They also agree that his statement of the rule was not supported by the authority upon which he relied, and that he did not accurately depict the law as it then existed.").

Apparently, Wood simply invented the concept of at-will employment, but wrongly described it as already accepted by the courts.

Soon after Wood's treatise appeared, various courts began citing the rule in his treatise, and thus the rule became accepted law. For example:

* McCullough Iron Co. v. Carpenter, 11 A. 176, 178-179 (Md. 1887) ("[Wood's treatise] is an American authority of high repute ....");
* East Line and Red River Railroad v. Scott, 10 S.W. 99, 102 (Tex. 1888);
* In re Philadelphia Packing & Provision Co., 1894 WL 3641 at *3 (Pa.Com.Pl. 1894);
* Martin v. New York Life Ins. Co., 42 N.E. 416, 417 (N.Y. 1895) ("... we think the rule is correctly stated by Mr. Wood, and it has been adopted in a number of states.");
* Greer v. Arlington Mills Mfg. Co., 43 A. 609, 610 (Del.Super. 1899) ("Wood, in his Law of Master and Servant (§ 134), very clearly states the difference between the rule which obtains in this country and the one in England, and I can find it nowhere more intelligently and satisfactorily stated. It is as follows:" [quoting nearly one page from Wood])
also "We have no doubt that the great preponderance of the best-considered cases in this country recognize and affirm the rule laid down by Wood in his work on Master and Servant, and which he terms the 'American rule,' ...." Greer at 612.
* Harrod v. Wineman, 125 N.W. 812, 813 (Iowa 1910) ("... in this country it is held by an overwhelming weight of authority that a contract of indefinite employment may be abandoned at will by either party without incurring any liability to the other for damages.

The doctrine of at-will employment, in which an employer can terminate employment at any time and for any reason, was invented by Horace Wood in his legal treatise that was published in 1877. Despite the fact that he offered no reason for his rule, and that none of his four citations supported his rule, courts in the USA rapidly adopted Wood's Rule as the common law. The Tennessee Supreme Court in 1884 declared that any reason included a "morally wrong" reason, a statement that is still the law in most of the USA today.

In my opinion, the doctrine of at-will employment was a major mistake, which continues to be propagated by judges with more respect for stare decisis, than either respect for fairness or desire to protect weaker parties from abuse.

Several commentators have expressed reasons why legislatures are unlikely to end the doctrine of at-will employment. And judges are reluctant to make broad public-policy exceptions to the doctrine of at-will employment. Thus, the law in the USA is currently in a stalemate.

At-will employment is a doctrine of American law that defines an employment relationship in which either party can terminate the relationship with no liability if there was no express contract for a definite term governing the employment relationship. Under this legal doctrine:

any hiring is presumed to be "at will"; that is, the employer is free to discharge individuals "for good cause, or bad cause, or no cause at all," and the employee is equally free to quit, strike, or otherwise cease work.

Several exceptions to the doctrine exist, especially if unlawful discrimination is involved regarding the termination of an employee.

Since this reduces job security, it can create, in theory, an atmosphere of fear that may contribute to workplace bullying. As a means of downsizing, such as closing an unprofitable factory, a company may terminate employees en masse. However, there are legal limitations upon the employer's ability to terminate without reason.

Origins

Under English common law, an indefinite term of employment was presumed to be for one year.

The at-will rule has its genesis in a rule in Horace Gay Wood's 1877 treatise on master-servant relations. Wood cited four U.S. cases as authority for his rule that when a hiring was indefinite, the burden of proof was on the servant to prove that an indefinite employment term was for one year. In Toussaint v. Blue Cross & Blue Shield of Michigan, the Court noted that "Wood's rule was quickly cited as authority for another proposition."

Some courts saw the rule as requiring the employee to prove an express contract for a definite term in order to maintain an action based on termination of the employment.Thus was born the U.S. at-will employment rule, which allowed discharge for no reason. This rule was adopted by all U.S. states. It was not until 1959 that the first judicial exception to the at-will rule was created.

Since then, several common law and statutory exceptions to at-will employment have been created. However, in the majority of cases, the burden of proof remains upon the discharged employee.

Public policy exceptions

Forty-three U.S. states recognize public policy as an exception to the at-will rule.Under the public policy exception, an employer may not fire an employee if it would violate the state's public policy or a state or federal statute.

Implied contract exceptions

Thirty-eight U.S. states also recognize an implied contract as an exception to at-will employment.Under the implied contract exception, an employer may not fire an employee "when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists."Proving the terms of an implied contract is often difficult, and the burden of proof is on the fired employee. Implied employment contracts are most often found when an employer's personnel policies or handbooks indicate that an employee will not be fired except for good cause or specify a process for firing. If the employer fires the employee in violation of an implied employment contract, the employer may be found liable for breach of contract.

Covenant of good faith and fair dealing exceptions (aka. "Implied-in-law" Contracts)

Only eleven U.S. states have recognized a breach of an implied covenant of good faith and fair dealing as an exception to at-will employment.

This exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception ? at its broadest ? reads a covenant of good faith and fair dealing into every employment relationship. It has been interpreted, by some courts, to mean either that employer personnel decisions are subject to a "just cause" standard or that terminations made in bad faith or motivated by malice are prohibited.

Statutory exceptions

Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status. Examples of federal statutes include:

* Equal Pay Act of 1963 (relating to discrimination on the basis of sex in payment of wages);

* Title VII of the Civil Rights Act of 1964 (relating to discrimination on the basis of race, color, religion, sex, or national origin);

* Age Discrimination in Employment Act of 1967 (relating to certain discrimination on the basis of age with respect to persons of at least 40 years of age);

* Rehabilitation Act of 1973 (related to certain discrimination on the basis of handicap status);

* Americans with Disabilities Act of 1990 (relating to certain discrimination on the basis of handicap status).

* The Wagner Act of 1935 provided protection to members of labor unions, but has since been repealled. (2001) "Federal and State Statutory Exemptions to At-Will Employment". Managerial Law 1 (43):

ESSAY 2

Among the reasons for the increase in employment discrimination lawsuits are the 1991 amendments to the Civil Rights Act of 1964, 42 U.S. §2000e, et seq., that provided for jury trials and increased the damages recoverable by plaintiffs, as well as the greater awareness among employees of their rights and the avenues open to them to seek redress.

Diversity Programs that Raise Expectations Without ...

Solution Summary

Multiple choice questions and answers about employment law, regulations, procedures and policies

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