Exam 2 Business Law

Class is at Black Hills State University (BHSU)

FLSA is what?

Fair Labor Standards Act of 1938

What did FLSA regulate?

Minimum wage, child labor and maximum work hours (overtime).

What are the two options (kinds of employment) employers have when hiring you (the employee)?

Contractual and employment-at-will.

What is a Contractual employment relationship?

terms will be negotiated and articulated in a contract. (ex: salary, job duties, duration of employment)

What is an Employment-At-Will employment relationship?

either party may terminate the employment relationship at any time for any reason.

The four expectations to employee-at-will:

Statutory Exceptions, Public Policy Exception, Implied promise made by employer and employee handbook.

Describe Statutory Exceptions for Exceptions for employee-at-will.

The legislature provides protections to employees from getting fired.

Examples of statutory expectations for employee-at-will:

NLRA, OSHA, Civil Rights Act, ADEA and ADA

What does NLRA stand for?

National Labor Relations Act.

What does OSHA stand for?

Occupational Safety and Health Act

The civil rights act is also known as…

Title 7

ADEA protects discrimination of what?

age.

FOUR main Examples of Public Policy expectations for employee-at-will:

tort theory, when firing an employee violates a clear mandate of public policy of the state, terminating an employee and the employee asks the court to recognize an exception or cause of action aka “wrongful termination”.

An employee can seek these “rewards” after a wrongful termination:

Either reinstatement (go back to work for same company) or damages (lost earning, court fees, etc).

Define whistleblowing:

reporting something wrong with the company to an outside entity of the company, like the government.

Other expectations for employee at will (can’t be fired for these reasons):

Whistleblowing, filing a worker’s compensation claim, asked to violate a law/illegal activity and for serving jury duty.

Define implied promise made by the employer

breach of contract (like a statement saying “long-term” or permanent employment.

Employee Handbook:

Policies and Procedures set forth in this book create a contract

What happens if the employer doesn’t follow their own employee handbook?

this is a breach of contract

What should employers put in employee handbooks to protect themselves?

an effective disclaimer. (this can explain that the employee is still at will but this works as a guide).

What state doesn’t follow typical employee at will common law doctrine?

Montana

How does Montana’s “at-will” for employment work?

enacted a statute known as the Wrongful Discharge - when you first hire an employee, you can have a probationary period, with a maximum of six months with an employee. During that time, this employee will be treated as a "at will" employee and can be fired or quit for whatever reason. AFTER THIS MAX SIX MONTHS there has to be a reason for someone to be fired.

What falls under income security?

Social security, private pension plans, contribution plans

A delivery driver delivers food but hurts someone while crossing the street. What type of insurance would most likely cover at least part of these injuries?

Commerical Auto

A cook burns his hand at work while cooking. What type of business insurance would most likely cover the costs?

Commercial General Liability (CGL)

A hailstorm damages company vehicles and there is $32,000 in damages. What type of business insurance would most likely cover the costs?

Commerical General Liability- Property Liability.

A customer gets food poisoning after eating food at your restaurant and has to go to the hospital. Now she is suing you for the cost incurred. What type of business insurance would most likely cover the costs?

Commerical General LiabilityA- Product Liability.

A delivery worker slips, breaks your tailbone, and sues you for lost wages, hospital bills, and other expenses. What type of business insurance would most likely cover the costs?

Commerical General Liability- Product Liability.

ERISA stands for?

Employee Retirement Income Security Act.

When do you qualify for to start saving for retirement?

age 21 and over (you can be 18 or over if the employer chooses to).

Another requirement you need to make before you can start saving for retirement with your employer (not age).

must complete one year of service.

What is vesting?

The right of an employee to plan benefits paid by the EMPLOYER on behalf of the employee. The employee owns a certain percentage of their account in the plan each year.

What is OSHAct’s purpose?

to assure every working man and woman in the nation are in safe and healthful working conditions and to preserve our human resources AND to provide a framework for research, education, training, etc.

How many work place accidents are there every year?

2 million

What does OSHA stand for?

Occupational Safety and Health Administration

What does NIOSH stand for?

National Institute of Occupational Safety and Health

What was NIOSH created for?

Created to conduct research and promote the application of research provide technical assistance to OSHA

What does OSHRC stand for?

Occupational Safety and Health Review Commission

What does OSHRC do?

Adjudicate contested enforcement action. For if you have citations issued but the employer wants to contest that (disagree) this is where they would go to disagree the issues.

What if an employees just don’t follow saftey regulations, even though theyre in place and someone gets hurt/dies. What will OSHA do?

the employer will still get in trouble because the employer still has to make a very good effort to make employees comply.

Why does workers compensation exist?

We want to not have employees bare the cost for their work place injury and instead put the burden financially onto the employer.

Before worker’s comp. what did people do with their work place injuries?

Either take on the financial burden or try to sue their employer (but employer would argue with “assumption of the risk”).

Worker’s comp has _____ liability.

strict. aka it doesn’t matter who is at fault or how it happened, the employer is covering it if it happened at work (few exceptions).

Exclusive remedy for employees is…

suing their employer or employer to get workers compensation.

You can’t get both worker’s comp and _________ at the same time for the same case.

exclusive remedy.

Reason 1 for edibility for workers comp.

there has to be a causal connection (it has to happen at work)

Reason 2 for edibility for workers comp.

you must be an employee.

In SD law, how many days do you have to submit the First Report of Injury?

3 business days.

To whom does the First Report of Injury get submitted to?

The employer.

Once the worker’s comp form is submitted, how many days does the employer have to submit it?

7 days.

How long must the employer keep the worker’s comp. form for their reocrds?

4 years.

In SD, by what time should you receive the money from worker’s comp?

20 days.

What does FMLA stand for?

Family and Medical Leave Act.

What does FMLA do?

covered by employers- gives 12 weeks of job protection (unpaid) to employees for SERIOUS MEDICAL CONDITION. (employee has to have been worker there for a year).

When should an employee notify that they want to use FMLA benefits?

30 days in advance.

Define discrimination (under employment)

employer behavior that penalizes certain individuals because of personal traits that bares no relation to effective job performance.

There are two federal laws that protect citizens from discrimination in employment:

Age Discrimination in Employment Act (ADEA) and Title 7 of Civil Rights Act of 1964

What is the 14 Amendment (how it relates to employment):

Equal Protection Clause- everyone is treated equal and fairly.

In 1896, what was changed/added into the 14 Amendment?

The Separate but Equal Doctrine (created segregated societies).

What except was made in 1954 to the Seperate but Equal Doctrine?

Brown v. Board of Education.

What got rid of the Seperate but Equal Doctrine?

Civil Rights Act (Title VII).

The Civil Rights Act (Title VII) only applies to…

businesses with 15 employees (unless the business owner being sued— b/c any employer can be sued)

The five protected classes under Title 7:

Origin, Religion, Sex, Color and Race.

What does EEOC stand for?

Equal Employment Opportunity Commission

What is the #1 and #2 spot with the most reports for Title 7 violations?

Race and Sex.

What processes do the EEOC go through with handling a case?

A case is filed at least 180 days after the alleged incident. EEOC investigates and determines if there is a violation— if there is you will get a RIGHT TO SUE letter.

There are two legal theories for discrimination:

Disparate Treatment and Disparate Impact Theory.

What is Disparate Treatment?

Intentional discrimination— Occurs when an employer treats employees different from others due to rave, color, national origin, sex or religion.

What is Disparate Impact (Theory)?

Unintentional Discrimination: Where there are policies in place that on the surface seem neutral but they actually have a discriminatory effect.

What must a plaintiff prove if they think they have been Disparate Impact at work?

Plaintiff must prove statically adverse impact— the goal is to eliminate arbitrary barriers.

What kind of common rule at work as often effected people (under Title 7) under Race and Color?

Grooming policies (how hair looks, what to wear, etc.) —-Some of these grooming policies do not apply their policies equal

What cases under “Color” often look like that get reported to Title 7:

Dark skin African Americans are being discriminated against by light-skin African Americans (or vice versa).

Common cases that get filed with Title 7 under “National Origin”:

English speaker only policies- SPECIFICALLY if the employer doesn’t allow another language (but English) to be spoken during breaks or at lunch time.

Religion under Title 7 is the only protected class that…

The employer has a duty to accommodate the employee unless it gives the employer undue hardship.

In 2020 the US Supreme Court expanded to include this class under Sex (and is now therefore protected).

LGBTQ

There are two types of sexual harassment (for the workplace):

Quid pro quo & Hostile worker environment.

What is Quid Pro Quo?

exchanging something for something. (usually exchanging sex for a promotion or keeping job).

What can fall under hostile work environment?

if certain employees are subjected to posters, emails, or jokes that are sexual or harassing in nature. It has to be severe and pervasive (a high degree to cause issues)

What is the Equal Pay Act?

was passed because the wage gap was concerning. Historically girls were paid less than girls in the exact same position under employer. Same degree of skill, effort -- equal work should get equal pay

Who is protected by ADEA

Age 40 and up (but there must be 20 or more employees at the business)

Where do you file for ADEA?

You have to file with the EEOC.

Define disability:

A person who has a physical or mental impairment that substantially limits one or more of his major life activities.

Must have all of these things to be protected by the ADA with employment:

Record of such impairment (disability).

* Regarded as having an impairment

* Needs 15 or more employees

What is Affirmative Action?

Try to make up for past discrimination by giving members of a class (typically minorities) preferential treatment in hiring or giving promotions.

What was Affirmative Actions main goal? (specific)

with higher education—was to achieve higher diversity on campuses.

1978 Bakke Case was…

Alan applied to school for two years and didn’t get in because they gave his spot to under qualified students because of affirmative action.

What was changed about Affirmative Action after the Bakkee Case?

The Supreme Court said YES, we can have race-based programs. HOWEVER, you can use race as a factor BUT it can’t be the only factor. Has to use a holistic approach.

Affrimative Action case 2022

Group of asian americans felt like they were gettign reverse racism. They tried to apply to Havard but couldn’t get in even though they were qualified. They argue Affrimative Action violates the 14 Amendment.

What did Supreme Court say/ rule after the 2022 Affirmative Action Case?

each applicant should be carefully considered case-by-case basis (so they should use essays as an example) Because not everyone from the same race are going to be having the same experiences as someone from the same race.

A waitress named Bailey (who has worked there for 4 weeks) says she interested in the profit sharing plan that is provided to employees. Last year the contribution was 4%. What do you say to Bailey?

If she is 21 or over, she is eligible. Only the employer contributes— not Bailey. Because it’s a profit-sharing plan, it’s flexible, so it may not be 4% next year.

What makes up the President’s Cabinet?

Department of State, Department of Treasury, Department of Defense and General Attorney.

What is the Delegation Doctrine?

Get to kind of use the 3 branches of government for agencies. Legislative (rulemaking), executive (investigate and enforce rules) and Judicial (they can adjudicate, like if they still believe there is a violation happening).

What is the Freedom of Information Act?

Didn't want people/public to not trust these agencies because they were so secretive. Enacted to give the pubic access to many documents

Government in the Sunshine Act

Enacted to open certain agency to meetings to the public. Pubic gets advanced notice of the meetings.

New Agencies were created (LIKE THIS?) when social problems emerged:

EEOC, NASA, Federal Communication Commission, Environment Protection Agency.

Define insurance:

A contract where on undertakes to indemnify another against loss, damage, or liability caused by an unknown or contingent event.

Purpose of insurance:

Protect insured by transferring risk and corresponding costs

* Successfully manage risk

* Transfer risk to the insurance company

Effective Date is…

A date that will say when your coverage starts

A Binder is…

something that is written for the insured that will cover them between the time when they don’t have insurance and when they will have their insurance date effective.