Fundamentals of Employment LawAmerican Bar Association, 2000 - 774 էջ |
Բովանդակություն
Employment Discrimination Law A Basic Overview | 1 |
Proving and Defending Against Employment Discrimination Charges | 5 |
How Does an Employer Present a Defense? | 7 |
Remedies if Unlawful Discrimination Found | 10 |
Releases of Discrimination Claims | 11 |
Recent Developments | 12 |
Interviewing and Hiring | 13 |
Pregnancy Discrimination | 15 |
Qualifying Reasons for Taking Leave | 285 |
What Qualifies as a Serious Health Condition? | 286 |
Healthcare Providers Certification | 292 |
Leave Available | 295 |
Measuring the 12Month Period | 296 |
Employee Notice and Request for Leave Requirements | 298 |
Designation of Leave and Notice to Employee | 303 |
Compensation During Leave | 306 |
Transfers | 16 |
Leaves of Absence | 17 |
Incidental Absences and Conditions Related to Pregnancy | 19 |
Sex Gender Discrimination Recent Cases | 20 |
Sex as a BFOQ | 21 |
Sexual Orientation Discrimination | 23 |
Areas Affected by Age Discrimination Laws | 25 |
The Bona Fide Occupational Qualification BFOQ and Other Defenses | 29 |
Bona Fide Executives and Other Exemptions | 30 |
Releases of ADEA Claims | 31 |
Developments Under the ADEA | 33 |
Arbitration of Discrimination Claims | 36 |
The Exclusion to the FAAs Coverage | 38 |
The Importance of Adequate Notice | 40 |
Arbitration Provisions in Handbooks and Applications | 42 |
Railway Labor Act Cases | 43 |
Exception for Religious Entities | 45 |
Application of Reasonable Accommodation Factors | 47 |
Religious Beliefs and Hostile Environment Discrimination | 50 |
Retaliation | 51 |
Cases Finding Retaliation | 53 |
Postemployment Retaliation | 54 |
Affirmative Action | 55 |
Race Discrimination | 56 |
Racial Harassment | 58 |
National Origin Discrimination | 60 |
National Origin Harassment | 62 |
National Origin Discrimination and EnglishOnly Rules | 63 |
Sexual Harassment The Changing Legal Landscape | 65 |
Sexual Harassment Defined | 66 |
Harassment Based on a Hostile Work Environment | 67 |
SameSex Sexual Harassment | 68 |
Personal Liability for Sexual Harassment | 70 |
Liability for the Acts of Nonemployees | 71 |
Liability to Those Not Harassed | 72 |
Constructive Discharge | 73 |
Defenses to a Claim of Sexual Harassment | 75 |
Employee Unreasonably Failed to Use Harassment Policy | 76 |
Harassment Claims Not Based upon Gender Fail | 78 |
Badgering Employee over Sexy Clothes Not Sexual Harassment | 79 |
Conduct Training | 80 |
Audit Employment Decisions | 81 |
Follow up on Remedial Measures | 82 |
Disability Discrimination | 83 |
Employers Subject to the ADA | 85 |
Persons Protected by the ADA | 86 |
EEOC Guidance on Mental Disabilities | 91 |
Record of Impairment | 96 |
Regarded as Having an Impairment | 97 |
Relationship or Association with a Disabled Person | 99 |
The Hiring and Interview Process | 100 |
EEOC Guidance on Preemployment Inquiries Under the ADA | 101 |
JobRelated Qualification Standards | 102 |
Job Performance Testing | 106 |
Medical Examinations of Applicants | 107 |
Current Employee Medical Examinations | 108 |
What Are the Essential Functions of a Job? | 111 |
Cases Deciding Essential Functions | 113 |
The ReasonableAccommodation Obligation | 115 |
The EEOC Issues Its Guidance on Reasonable Accommodation and Undue Hardship | 116 |
Job Restructuring and Work at Home | 118 |
Only Known Disabilities Need Accommodation | 120 |
Undue Hardship | 123 |
Alcoholism and Drug Addiction | 124 |
Drug Testing | 126 |
Relation to Workers Compensation WorkRelated Injuries and LightDuty Assignments | 128 |
Developing Law of Wrongful Discharge | 131 |
Express Contracts | 132 |
Other Types of Liability | 133 |
Implied Covenant of Good Faith and Fair Dealing | 134 |
Public Policy Exceptions | 135 |
Arkansas | 136 |
Other Types of Liability | 137 |
Implied Contracts | 138 |
Public Policy Exceptions | 139 |
Other Types of Liability | 140 |
Colorado | 141 |
Implied and Express Contracts | 142 |
Other Types of Liability | 143 |
Connecticut | 144 |
Other Types of Liability | 145 |
Public Policy Exception | 146 |
Implied Covenant of Good Faith and Fair Dealing | 147 |
Public Policy Exceptions | 148 |
Florida | 149 |
Other Types of Tort Liability | 150 |
Express or Implied Contracts | 151 |
Other Types of Tort Liability | 152 |
Implied Covenant of Good Faith and Fair Dealing | 153 |
Idaho | 154 |
Express Contracts | 155 |
Express or Implied Contracts | 156 |
Public Policy Exceptions | 157 |
Other Types of Tort Liability | 158 |
Public Policy Exceptions | 159 |
Other Types of Tort Liability | 160 |
Other Types of Tort Liability | 161 |
Public Policy Exception | 162 |
Kentucky | 163 |
Public Policy Exception | 164 |
Public Policy Exceptions | 165 |
Other Types of Liability | 166 |
Maine | 167 |
Other Types of Liability | 168 |
Public Policy Exceptions | 170 |
Other Types of Liability | 171 |
Massachusetts | 172 |
Michigan | 173 |
Implied Contracts | 174 |
Other Torts | 175 |
Public Policy | 176 |
Other Theories of Liability | 177 |
Mississippi | 178 |
Public Policy Exceptions | 179 |
Missouri Public Policy | 180 |
Oral Contracts | 181 |
Montana | 182 |
Other Torts | 183 |
Nebraska | 184 |
Nevada | 185 |
Public Policy Exceptions | 186 |
Other Types of Liability | 188 |
Public Policy Exceptions | 189 |
Other Types of Liability | 190 |
Express Contracts | 191 |
Other Torts | 193 |
Implied Contracts | 194 |
Other Types of Liability | 195 |
Public Policy Exceptions | 197 |
Other Types of Liability | 198 |
Implied Contracts | 199 |
Public Policy Exceptions | 200 |
Other Torts | 201 |
Public Policy Exceptions | 203 |
Implied Covenant of Good Faith and Fair Dealing | 204 |
Other Torts | 205 |
Public Policy Exceptions | 206 |
Implied Covenant of Good Faith and Fair Dealing | 207 |
Public Policy Exceptions | 208 |
Implied Covenant of Good Faith and Fair Dealing | 209 |
ExpressImplied Contracts | 210 |
Public Policy Exceptions | 211 |
Implied Covenant of Good Faith and Fair Dealing | 213 |
South Carolina | 214 |
Public Policy Exceptions | 215 |
Public Policy Exceptions | 216 |
Implied Covenant of Good Faith and Fair Dealing | 217 |
Public Policy Exceptions | 218 |
Public Policy Exceptions | 220 |
Implied Covenant of Good Faith and Fair Dealing | 221 |
Utah | 222 |
Implied Covenant of Good Faith and Fair Dealing | 223 |
Vermont | 224 |
Public Policy Exceptions | 225 |
Virginia | 226 |
Implied Covenant of Good Faith and Fair Dealing | 227 |
Washington | 228 |
Public Policy Exceptions | 230 |
Implied Covenant of Good Faith and Fair Dealing | 231 |
Public Policy Exceptions | 232 |
Implied Covenant of Good Faith and Fair Dealing | 233 |
Public Policy Exceptions | 235 |
Other Torts | 236 |
Employment Torts HighRisk Components of Wrongful Discharge Lawsuits | 237 |
Selected Tort Claims | 238 |
Invasion of Privacy | 246 |
Intentional and Negligent Infliction of Emotional Distress | 248 |
Fraud Deceit and Misrepresentation | 252 |
Interference with Prospective Economic Advantage and Related Claims | 255 |
Interference with a Civil Action by Spoliation of Evidence | 258 |
False Imprisonment | 262 |
Assault and Battery | 263 |
Loss of Consortium Alienation of Affection | 264 |
Negligent Retention and Supervision | 270 |
Negligent Training | 273 |
Limiting Exposure | 276 |
Negligent Hiring | 277 |
Negligent Supervision and Retention | 278 |
Negligent Training | 279 |
The Family and Medical Leave Act and Related Parental Rights | 281 |
The Family and Medical Leave Act | 282 |
Covered Employers | 283 |
Salary Pay Obligations | 307 |
Benefits | 310 |
Nondiscrimination Obligations | 313 |
Recordkeeping | 316 |
Employer Notice Requirements | 317 |
Special Rules Concerning Employees of Local Educational Agencies and Private Schools | 318 |
Impact of Collective Bargaining Agreements | 320 |
Proposed Legislative Changes to the FMLA | 321 |
The Interaction of the FMLA with Other Laws | 323 |
Relationship to Other Types of Leave | 324 |
Pregnancy Leave | 325 |
Pregnancy and LightDuty Assignments | 326 |
Pregnancy and BreastFeeding | 327 |
Morning Sickness and Other Claims Related to Pregnancy | 328 |
Pregnancy and the Americans with Disabilities Act ADA | 329 |
The PDA and State Pregnancy Discrimination Laws | 330 |
Military Leave and Civic Duty Leave | 333 |
Employers Obligated to Provide Leave | 334 |
Reasons for Taking Leave | 335 |
Duration and Timing of Leaves | 336 |
Compensation During Leave | 337 |
Benefit Implications of Leave | 338 |
Reinstatement Obligations | 340 |
Protection of Reinstated Veterans from Discharge or Discrimination | 345 |
Enforcement and Remedies | 346 |
Verification Requirements and Options | 347 |
Duration and Timing of Leaves | 348 |
Compensation During Leave | 349 |
Reductions in Force Issues and Strategies for the Downsizing Employer | 351 |
Planning a Reduction in Force | 352 |
Create and Document the Layoff Plan | 358 |
Selecting Individuals for Layoff | 359 |
Selecting the RIF DecisionMakers | 361 |
Training the RIF DecisionMakers | 362 |
Form a Review Committee | 363 |
Completing the Layoff Process | 364 |
Hiring During a Layoff | 365 |
Assisting Employees with Transition | 366 |
Which Employers Are Covered? | 367 |
Mass Layoff Defined | 368 |
Employment Loss Defined | 370 |
Affected Employee Defined | 371 |
PartTime Employee Defined | 372 |
What Type of Notice Is Required? | 373 |
Notice to the Representatives of Unionized Employees | 374 |
Consolidation or Relocation of the Business | 375 |
Exceptions that Reduce the Notice Requirements | 376 |
Exemptions that Eliminate the Notice Requirements | 378 |
Enforcement and Penalties | 379 |
Releases of Claims | 380 |
Good Faith Defense | 381 |
Conclusion | 382 |
To Restrict or Not to RestrictThat Is the Question Restrictive Covenants and Trade Secrets | 383 |
The Law of Trade Secrets | 385 |
Enjoining the Misappropriation of a Trade Secret | 386 |
Summary of Law Relating to Covenants Not to Compete and Protection of Confidential Business Information | 387 |
Arizona | 388 |
Arkansas | 389 |
California | 390 |
Colorado | 392 |
District of Columbia | 393 |
Florida | 394 |
Georgia | 396 |
Illinois | 397 |
Indiana | 398 |
Iowa | 400 |
Kansas | 401 |
Nevada | 402 |
New York | 403 |
Ohio | 405 |
Oklahoma | 406 |
Oregon | 407 |
Texas | 408 |
Virginia | 409 |
Washington | 410 |
West Virginia | 411 |
Wisconsin | 413 |
Employee Privacy and Statutory Individual Rights | 415 |
Privacy Rights in a Union Shop | 420 |
Privacy Rights in Personal Lifestyles | 421 |
Public Employees OffDuty Conduct | 422 |
Smokers Rights | 425 |
Investigation of Applicants and Employees | 426 |
Potential Liability for Disseminating Information | 427 |
Arrest Records | 428 |
Fingerprints and Photographs | 429 |
Polygraphs Honesty Tests Psychological Tests Physical Exams and Genetic Testing | 432 |
A Viable Alternative to Polygraph Tests? | 438 |
Psychological Testing | 440 |
Physical Examination | 441 |
Genetic Screening | 442 |
Confidentiality and Use of Personnel Information | 444 |
Personnel Records | 445 |
Potential Liability for Improper Release of Personnel Information | 447 |
Potential Liability for Interference with Prospective Economic Advantage | 448 |
Recommendations | 449 |
Intercepting Accessing and Disclosing Communications | 450 |
The Consent Exception | 453 |
Searches in the Electronic Workplace | 456 |
Federal Statutes | 457 |
Reducing Employees Expectations of Privacy | 459 |
Other Statutory Employee Rights | 461 |
Language Requirements | 462 |
Political Activities | 463 |
ThirdParty Representation | 464 |
Whistleblowing | 465 |
Federal Compensation Law in 1999 | 481 |
The Relationship Between State and Federal Wage and Hour Laws | 482 |
Work Time for Minimum Wage and Overtime Purposes | 495 |
The Minimum Wage Obligation | 498 |
The Overtime Obligation | 500 |
The Recordkeeping Obligation | 504 |
Child Labor Obligations | 505 |
Employee Enforcement of the FLSA | 508 |
Defenses to Enforcement Actions | 509 |
Criminal Penalties | 511 |
The Provision of Materials or Supplies | 512 |
Prevailing Wages Under Other Federal Acts | 513 |
What Is the Prevailing Wage Obligation? | 514 |
Remedies for Failure to Pay the Prevailing Wage | 515 |
Defenses To Enforcement Actions | 516 |
Addressing Employee Concerns over Health and Safety Issues in the Workplace | 517 |
OSHAs Working Draft of a Proposed Ergonomics Program Standard | 518 |
Developing an Ergonomics Program | 524 |
Preergonomics Standards and FedOSHA Citations Under the General Duty Clause | 526 |
Civil Litigation | 527 |
AIDS | 528 |
Guidelines for Preventing Transmission of HIV | 529 |
Rights of Employees with AIDS or HIV | 530 |
State and Local Legislation | 534 |
Other Employer Concerns | 538 |
Employee Benefit Issues | 540 |
Tuberculosis in the Workplace | 546 |
The Risk | 547 |
Guidelines for Tuberculosis Control | 548 |
Written ExposureControl Plans | 549 |
Be Prepared | 550 |
Recommended Employer Action | 551 |
Legal Issues in the Courts | 552 |
Smoking Is Not Battery | 553 |
Workplace Substance Abuse An Overview of Federal and State Requirements | 557 |
The Right to Use? | 558 |
Governmental Regulations Requiring an Employer Response | 564 |
Omnibus Transportation Employee Testing Act | 565 |
Legal Restrictions on Drug and Alcohol Testing | 567 |
Due Process | 569 |
Equal Protection | 570 |
State Constitutional Guarantees | 571 |
Massachusettss Constitutional Right to Privacy | 573 |
Statutory Restrictions | 574 |
Federal Statutes | 575 |
State Statutes | 578 |
Local Ordinances | 587 |
Methods of Drug and Alcohol Testing | 588 |
Breath | 589 |
Sweat | 590 |
Motor Coordination | 591 |
The Federal DrugFree Workplace Act | 592 |
Investigation by Undercover Agents | 593 |
Electronic Surveillance Recording of Employee Conversations | 594 |
Searches of Desks and Lockers | 595 |
Rehabilitation and Prevention | 596 |
Employee Assistance Programs | 597 |
Unionized Facilities | 598 |
Conclusion | 600 |
Collective Bargaining and LaborManagement Relations | 601 |
The Duty to Provide Relevant Information | 617 |
Common Collective Bargaining Contract Features | 622 |
Union Security Clauses | 624 |
Merit Pay and Incentive Clauses | 625 |
MostFavoredNation Clauses | 627 |
BackLoaded Contracts | 628 |
CostofLiving Adjustments | 629 |
Bargaining Past Contract Expiration | 634 |
Use of Economic Weapons | 636 |
SickOuts | 638 |
Replacing Economic Strikers | 640 |
Developments in LaborManagement Relations | 647 |
Worker Committees and 8a2 | 649 |
Table of Cases | 653 |
| 733 | |
Common terms and phrases
10th Cir 1st Cir 3d Cir 9th Cir aff'd alcohol alleged applicant arbitration at-will doctrine at-will employment benefits cause of action cert claim collective bargaining agreement conduct confidential Corp court found court held Court of Appeals D.C. Cir decision denied disability discrimination Dist drug testing duty EEOC emotional distress employee handbook employee's employment contract enforced fair dealing faith and fair federal FLSA FMLA leave hiring Hosp Implied Contracts implied covenant individual jury just-cause Labor layoff liability ment N.D. Ill negligent hiring NLRB obligation Ohio overtime perform plaintiff polygraph position prohibits protected Public Policy Exceptions qualified reasonable accommodation refused regulations ruled serious health condition sexual harassment statute supervisor Supp Supp.2d Supreme Court termination tion Title VII tort trade secret U.S. Supreme Court union violation wage whistleblower workers workplace