Employment LawDonna M. Kesot, CPCU

©March 26, 2013

Termination & Welfare

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Discrimination

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Corporations

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Labor Mgmt Relations

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Misc

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Category 1 questions follow

Quest

ion

Employment at Will Exceptions

10Category 1

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What are• Public policy exception

• Implied contract exception

• Covenant of good-faith exception

• Statutory exception

10Category 1

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Main aspects of the Occupational Health & Safety Act of 1970 (OHSA)

20Category 1

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What are• Employers must provide a safe place to work by

setting standards of safety.• Enforced by inspection and investigations• Penalties imposed for violations

20Category 1

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Main aspects of Family Medical Leave Act (FLMA)

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What are• Requires employers to provide unpaid leave for

circumstances covered under the Act.• Employers with 50 or more employees• Employees must have worked at least 12 months

and 1,250 hours

30Category 1

Quest

ion

3 Employee Benefit Laws

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What are 1. Employee Retirement Income Security Act

(ERISA, 1974) for pensions2. Consolidated Omnibus Budget Reconciliation Act

(COBRA, 1986) for health benefits ~exempts fed employees and religious groups3. Health Care and Education Reconciliation Act of

2010 for expansion of the availability and affordability of health care. AKA Affordable Care Act, e.g. Obamacare

40Category 1

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Privacy Protections

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What are • Common Law allows suits for invasion of privacy• Drug-Free Workplace Act 1988• Employee Polygraph Protection Act 1988• Omnibus Crime Control and Safe Streets Act of 1968 • Electronics Communications Privacy Act 1986 (allows

privacy to be invaded if employee consent given for ‘monitoring’)

• Federal Fair Credit Reporting Act (FCRA) allows background checks

• Health Insurance Portability and Accountability Act (HIPAA, 1996)

50Category 1

Category 2 questions follow

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2 Age Discrimination Laws

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What are• Age Discrimination Act (ADEA) 1967 ~bona fide occupational qualification (BFOQ) is the minimum qualification needed to perform the duties of a particular job

• Older Workers Benefit Protection Act (OWBPA of 1990) ~prohibit age discrimination in offering benefits

10Category 2

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Five Laws regarding Sex, Race, Religion, or National Origin

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What are• Civil Rights Act of 1866 (Race, making contracts)• Civil Rights Act of 1871 (Right to Sue)• Civil Rights Act of 1964 (Title VII added Gender & Religion) ~Disparate Treatment Theory (Intentionally treating individuals differently)• Quid pro quo Sexual Harassment (1980)• Hostile Work Environment ~severe & persuasive• Civil Rights Act of 1991 ~Disparate Impact Theory (Intention is not focus)• Executive Order 11246 (Equal Opportunity Employment)• Affirmative Action Plan• Equal Pay Act of 1963 (& new Lily Ledbetter Act)

20Category 2

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2 Disability Laws

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What are Rehabilitation Act of 1973 prohibits discrimination based on disability as long as essential functions of the job can be completed

American with Disabilities Act strengthens the prohibition and requires equal access to buildings/facilities

Daily Double: What compliance issues arise?

30Category 2

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Laws for service men and women

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What are • Vietnam Era Veterans Readjustment Assistance

Act of 1974

• Uniformed Services Employment and Reemployment Rights Act of 1994

40Category 2

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What agency oversees Title VII protections?

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EEOC overseas complaints, 180 days w/ no settlement --> right to sue letter• Claimant must sue within 90 days

50Category 2

Category 3 questions follow

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3 Types of Corporations

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What are 1. Government corporations (cities, counties, states)2. Charitable or not-for-profit corporations (colleges,

universities, hospitals, religious organizations)3. Business for Profit corporations

A corporation is a separate legally recognized business entity organized under state law and entitled to the same rights as a person, distinct from its owners. • Regulated by both Fed & State laws

10Category 3

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Advantages of incorporation

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What are• Limit liability (courts may pierce the corporate

veil for wrongful acts)• Tax advantage• Easier to sell/transfer ownership• Easier to raise capital• Perpetuity beyond the death of owners

20Category 3

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What is included in corporate bylaws

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What are• Stockholders meetings (date, place, conduct of elections,

order of business)• Directors (term of office, compensation, meetings, loans,

authority to elect officers)• Indemnification of Directors, officers and agents• Shares of stock (issue, transfer, record date)• Corporate seal and officers signatures• Procedures for transfer or dissolution• Future amendment of bylaws

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4 stock purchase rights

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What are • Short-term options

• Stock Warrants (usually preferred stock, bonds)

• Stock Options (deferred compensation)

• Pre-emptive Rights for existing stockholders

40Category 3

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Ownership currency of corporations

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What are• Bonds-long term debt instrument with annual

rate of return• Common stock (voting)• Preferred stock (nonvoting but higher priority if

corporation is dissolved)• Par value – arbitrary dollar value that the

corporation assigned to stock shares• Treasury stock – stock repurchased by the

company and not retired

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Category 4 questions follow

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3 main areas of law governing labor-management relations

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What are Collective BargainingCollective Bargaining ProcessEconomic Pressure

10Category 4

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Purpose of collective-bargaining relationships

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What is give employees more influence as a group when negotiating with the employer, versus negotiating alone?

20Category 4

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Types of issues requiring collective bargaining?

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What areWagesHoursOther Terms of Employment (Benefits, etc.)

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Happens when parties don’t reach agreement

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What aare mediation, then arbitration, possibly strike

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Tactics acceptable for employer to use in lieu of firing for strike and which two acts govern collective bargaining

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What are employment of replacement workersUnder certain conditions, a lock-out

Norris-LaGuardia Act of 1932 (prohibited federal court injunctions in labor disputes until all efforts exhausted in negotiation

National Labor Relations Act of 1935 (recognized Labor Unions)

50Category 4

Category 5 questions follow

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Ultra Vires

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What is an act of a corporation that exceeds its powers

10Category 5

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Derivative suit

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What is a suit brought by one of more shareholders

Other remedies include class action suits and direct laws suits

20Category 5

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Limited partnership

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A form of partnership made up of one or more general partners who have unlimited liability, and one or more limited partners whose liability is limited to the amount of capital they have contributed to the partnership

30Category 5

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Limited Liability Company (LLC)

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A form of business entity that provides its owners with limited liability of a corporation and the tax advantages of a partnership

40Category 5

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This entity arises by people’s actions, oral agreement, written agreement

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What is how partnerships arise?

The Uniform Partnership Act (UPA), partnership agreement, and general principles of contract and agency law govern the relationship between partners

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