Employment Law for Human Resource Practice , 7th Edition

Employment Law for Human Resource Practice , 7th Edition

by David J. Walsh

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Chapter 01: Overview of Employment Law True / False 1. Employment laws are passed only by state and federal governments, not by cities or counties. a. True b. False ANSWER: False 2. There are more firms with 0–4 employees than any other size firms. a. True b. False ANSWER: True 3. Punitive damages are not available in employment discrimination cases. a. True b. False ANSWER: False 4. There are minimum standards for the terms and conditions of employment. a. True b. False ANSWER: True Multiple Choice 5. Identify the item that is not a source of employment law: a. federal law b. state law c. ads for job openings d. constitutions ANSWER: c 6. Under U.S. employment laws, all employees have the right to: a. not be fired, as long as they do a good job b. be treated fairly in all aspects of the workplace, including receiving fair compensation c. have paid vacation after 1 year of employment d. expect their employers to comply with employment laws ANSWER: d 7. Identify the fact that does not apply to determining which employment laws apply to a certain employer. a. The number of employees that work for the company b. Whether the employer sells goods or services to the state government where it is located c. The state(s) in which the employer operates d. Whether the employer sells goods or services to the federal government ANSWER: b Copyright Cengage Learning. Powered by Cognero.

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Chapter 01: Overview of Employment Law 8. Regarding employment law in the U.S., which of the following statements is true? a. th Most federal employment laws were passed in the first half of the 19 century in response to growing industrialization b. The earliest employment laws focused on wages and hours c. Employees may be fired at any time for any reason not prohibited by law d. Collective bargaining agreements of unionized employees typically go well beyond the minimum requirements of the law ANSWER: c 9. Which of the following is generally true regarding the process of enforcing employment laws? a. Courts and government agencies hear cases only after employees come forward with complaints about violations of the law b. Employees are very likely to seize the opportunity to sue their employers, because all of the cost of employment litigation is borne by the employer c. Once a claim is brought, a company’s attorneys deal with it, and managers have little involvement in the case d. Employment laws apply only to full time employees ANSWER: a 10. In considering whether an employment termination was legal, the court considers: a. whether the termination was fair b. whether the termination was necessary c. whether the termination was wise from a business perspective d. whether the termination was legally permissible ANSWER: d 11. Under the “payroll method” approved by the U.S. Supreme Court: a. employers whose payrolls exceed $500,000 annually are covered by Title VII b. employers are covered by Title VII if they had at least 20 employees on the payroll at the time of the alleged discrimination c. employers are covered by Title VII if they had at least 15 employees working and who are being paid for each working day during at least 20 weeks in the same or the preceding year d. employees are counted for each full week between when they are hired and when they leave employment, regardless of the number of days or hours worked ANSWER: d 12. Regarding arbitration, which of the following statements is true? a. Decisions of arbitrators are usually not appealable or subject to judicial review b. Arbitrators’ decisions are usually advisory and not considered final c. Arbitrators have less control over the outcomes of disputes than do mediators d. Arbitration is always more costly and time-consuming than litigation ANSWER: a 13. Regarding the interrelationship of federal and state employment laws: a. state laws that are not identical to federal law are void Copyright Cengage Learning. Powered by Cognero.

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Chapter 01: Overview of Employment Law b. states may pass laws which reduce employee rights, but may not enact laws that expand employee protections granted in federal laws c. states may pass laws which expand employee rights, but may not enact laws that reduce employee protections granted in federal laws d. employment law is exclusively a federal domain, so states may not enact laws when federal law already exists ANSWER: c 14. If Pedro works for the City of Trenton, he is in: a. the public sector b. the private sector c. a union workplace d. a non-union workplace ANSWER: a 15. In EEOC v AutoZone, the EEOC sued AutoZone on behalf of an employee who suffered injury and disability because his employer would not provide a reasonable accommodation for his disability. Fed Ex argued that the damages awarded by the jury were too high, and also offered evidence of its ADA compliance policy set forth in the employee manual. The court ruled: a. for the defendant AutoZone, since the establishment of an ADA compliance policy was sufficient to establish a good faith effort to comply with the ADA b. for the defendant AutoZone, because plaintiff had not established that he suffered from a disability c. for the plaintiff because the damages awarded were consistent with the damages awarded in other cases d. for the plaintiff because he established that he suffered from a disability ANSWER: c 16. Which of the following is true regarding enforcement of employee rights and enforcement of employment laws? a. Finding a lawyer willing to take an employment law case is difficult because lawyers accept only about 50% of employment discrimination cases brought to them b. If an employer has a complaint or grievance procedure, the employee is required to exhaust the remedies afforded under the internal procedure before taking the case to an enforcement agency or court c. Upon finding that discrimination likely occurred, the EEOC undertakes a conciliation process d. Upon finding that discrimination likely occurred, the EEOC can fine employers or require that they remedy their discrimination ANSWER: c 17. Arbitration agreements which are offered on a take-it-or-leave-it basis are: a. procedurally unconscionable b. rhetorically unconscionable c. substantively unconscionable d. structurally unsound ANSWER: a 18. Which of the following is true of the enforcement process for discrimination charges brought under Title VII? a. The plaintiff may choose to begin in the state civil rights agency, or may file directly with the EEOC as they wish Copyright Cengage Learning. Powered by Cognero.

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Chapter 01: Overview of Employment Law b. Charges must be brought within 60 days of the alleged discriminatory act c. A right-to-sue letter must be obtained from the EEOC before a plaintiff can file suit in court d. The plaintiff will have 60 days to file her lawsuit ANSWER: c 19. A “limitations” period is: a. the time within which a plaintiff must file a claim or lawsuit b. the time within which a plaintiff must reply to the employer’s defense c. an automatic reduction in the amount of damages awarded to a plaintiff d. the time when an employee is probationary, and not a regular full time employee ANSWER: a 20. Dean got a job as a copy writer for a publishing firm, and after working for the firm for two years, was told he was required to sign a mandatory arbitration agreement and agree to submit any employment disputes to binding arbitration.

Dean was also told that if he would not sign it as is, he would be fired. Dean: a. will have to sign the agreement if he wants to keep his job b. does not have to sign the agreement, and can still keep his job ANSWER: a 21. Francine got a job as a copy writer for a publishing firm, and after working for the firm for two years, was told she was required to sign a mandatory arbitration agreement and agree to submit any employment disputes to binding arbitration. Francine was also told that if she would not sign it as is, she would be fired. The contract referred to in the passage is: a. procedurally unconscionable b. substantively unconscionable ANSWER: a 22. Which of the following provisions, if included in a mandatory arbitration agreement, would be likely to render it unenforceable? a. A provision that the employee pays 10% of the costs of the arbitrator’s services b. A provision that gives the employer the right to choose any arbitrator c. A provision that sets a one-year time limit to bring a claim d. A provision that requires the employee to prove his case ANSWER: b 23. As the Human Resources manager of your firm, the task of putting into effect the firm’s new mandatory arbitration agreement has fallen to you. At a minimum, legally, which of the following actions are required to make the policy enforceable? a. Send email notice to all employees that a mandatory arbitration policy has been adopted b. Post the mandatory arbitration policy on the firm’s website, and ask employees to visit the site and review the policy c. Provide employees with a copy of the agreement, and ask them to sign it d. Provide pay for the time required to attend arbitration proceedings ANSWER: c

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Chapter 01: Overview of Employment Law 24. Your firm has just gotten a contract with the U.S. government to develop software for a federal agency. In addition to the employment laws that already apply to your business, which of the following will now also apply? a. Title IX b. The Federal Security Software Funding Act of 2018 c. Executive Order # 11246 ANSWER: c Essay 25. Employment law arises from a variety of legal sources. Name and briefly discuss at least three of them.

ANSWER: Employment law may arise from: •

•

•

•

•

CONSTITUTIONS – In the employment law context, constitutions address the relationship between citizens and their government. Generally, a legal claim based on a constitution must assert a violation of someone’s constitutional rights by the government (state action). In practical terms, this means that usually only employees of government agencies – and not employees of private companies – can look to the U.S. Constitution or state constitutions for protection in the workplace. Examples of constitutional protections available to government employees include speech rights, freedom of religion, protection from unreasonable search and seizure, equal protection under the law, and due process rights.

STATUTES – Statutes are written laws enacted by a legislature, which has been elected by the people. These bodies enact laws or statutes, many of which affect the workplace. Among the many important statutes with implications for human resource practice are Title VII of the Civil Rights Act of 1964, the National Labor Relations Act, the Equal Pay Act, the Americans with Disabilities Act, the Family and medical Leave Act, and the Employee Retirement Income Security Act. EXECUTIVE ORDERS – The executive branch of government has the power to issue executive orders that affect the employment practices of government agencies and companies that have contracts to provide goods and services to the government. Executive orders function much like statutes, although they reach fewer workplaces, and can be overridden by the legislative branch. The most important example of an executive order affecting employment is Executive Order (E.O.) 11246, which establishes affirmative action requirements for companies that do business with the federal government.

REGULATIONS, GUIDELINES, and ADMINISTRATIVE DECISIONS – When congress enacts a statute, it often creates an agency, or authorizes an existing agency to administer and enforce that law. Legislators do not have the expertise (and sometimes do not have the political will) to fill in all the details necessary to put statutes into practice. For example, Congress mandated in the Occupational Safety and Health Act that employers provide safe workplaces, but largely left it to the Occupational Safety and Health Administration (OSHA) to give content to that broad principle by promulgating (creating) safety standards governing particular workplace hazards. Formal regulations are put in place only after an elaborate set of requirements for public comment and review have been followed. Regulations are entitled to considerable deference from the courts (generally, they will be upheld when challenged), provided that the regulations are viewed as reasonable interpretations of the statutes on which they are based. Agencies also contribute to the law through their decisions in individual cases that are brought before them.

COMMON LAW – Many disputes are resolved through courts interpreting and enforcing the types of law discussed earlier. However, sometimes courts are asked to resolve disputes over matters that have not been objects of legislation or regulation. Over time, courts have recognized certain common law claims to remedy harm to people caused by other people or companies. Common law is defined by state courts, but broad similarities exist across states. One branch of common law is the traditional role of the courts in interpreting and enforcing contracts. The other branch is recognition of various

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Chapter 01: Overview of Employment Law tort claims for civil wrongs that harm people. Tort claims relevant to employment law include negligence, defamation, invasion of privacy, infliction of emotional distress, and wrongful discharge in violation of public policy.

26. Identify and discuss three functions that a good human resources manager should perform in managing employment law issues.

ANSWER: The role of a good human resources manager in dealing with employment law issues may be described in 4 major functions: • •

•

•

Knowing the law when it is clear. This includes recognizing, analyzing, and dealing effectively with a variety of employment law issues, setting policies and enforcing them, so that the firm remains in legal compliance.

Developing a strategy for dealing with legal issues that are still developing. This includes recognizing and coping with ambiguity and developing long-term legal strategies for handling legal issues, that is when what should be done according to the law is not clear. The best HR managers develop strategies that are protective of the firm in the long run.

Anticipating legal problems and trying to avoid them. The best HR managers are proactive – not waiting for problems to arise, but doing all they can to prevent them from arising at all, like setting policies and procedures in place that will address matters that may become legal issues before they become problematic.

Knowing when to seek the advice of legal counsel. There are many things a good HR manager can do independently, but the best HR managers will also know when to consult with legal counsel. Early consultation can minimize or avoid many problems, and legal counsel can help the manager put in place policies that will accomplish the three functions named above.

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Chapter 02: The Employment Relationship True / False 1. It’s easy to determine whether a worker is an employee. a. True b. False ANSWER: False 2. It's easy to determine whether a firm or person is an employer. a. True b. False ANSWER: False 3. It can be difficult to determine whether an employment relationship exists. a. True b. False ANSWER: True 4. The determination of employment status is binary: the worker is either an employee or an independent contractor. a. True b. False ANSWER: True Multiple Choice 5. Distinguishing between employees and independent contractors is important because: a. income tax must be withheld for independent contractors, but not employees b. employers have fewer legal obligations to employees c. employers can defend their noncompliance with employment laws by proving that persons performing work are independent contractors d. it is not important to distinguish between employees and independent contractors ANSWER: c 6. Under the economic realities test: a. if the hired party depends on the job for a small portion of their income, that favors the conclusion that they are an employee b. if the hired party performs tasks that are central to the hiring party’s business, that favors the conclusion that they are an independent contractor c. if the hired party performs low-skilled work, that favors the conclusion that they are an independent contractor d. if the hired party provides their own tools and materials, that favors the conclusion that they are an independent contractor ANSWER: d 7. “Contingent” work: a. is usually work that may be delegated if the employer is financially capable of paying for the work b. is essentially, full-time, year-round employment with a single employer that is expected to continue indefinitely Copyright Cengage Learning. Powered by Cognero.

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Chapter 02: The Employment Relationship c. means that there is no expectation of an ongoing, continuing relationship d. is the standard or traditional form of employment relationship ANSWER: c 8. Which of the following is true of the common law test? a. It is especially useful for distinguishing partners from employees b. It focuses on the right of control c. It focuses on the hired party’s ability to sell his services to a variety of hiring parties d. It is especially useful for determining whether individuals should be covered as family members under benefit plans ANSWER: b 9. If a worker is an employee, the employer must: a. make certain the employee makes estimated income tax payments b. pay the employer’s share of Social Security and Medicare taxes c. pay the employee’s share of Social Security and Medicare taxes d. provide a paid vacation after one year of employment ANSWER: b 10. Which of the following is an accurate statement regarding independent contractor agreements? a. They will usually be treated as indicators of independent contractor status, provided that they are signed and notarized b. They are useless as indicators of independent contractor status c. They are renewed automatically and as often as necessary d. They can support a claim to independent contractor status, but the actual relationship is the most important factor ANSWER: d 11. The primary lesson to be learned from the lawsuit brought by Microsoft’s temporary workers in the 1990s is that: a. it is safest legally to hire temp workers through a temporary staffing agency b. employers must provide benefits to all of their employees c. companies that use temp workers will often be deemed joint employers of those workers d. employers cannot arbitrarily exclude some employees from benefit plans by labeling them as temporary workers ANSWER: d 12. If a worker is an employee, the employer must: a. provide “free” days off for the employee b. provide unemployment insurance for the employee c. provide paid vacation time for the employee d. provide fair treatment for the employee ANSWER: b 13. Persons performing volunteer work are more likely to be deemed employees if: a. their services are provided to non-profit agencies Copyright Cengage Learning. Powered by Cognero.

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Chapter 02: The Employment Relationship b. they receive significant in-kind compensation for their services c. they retain control over their volunteer work schedule d. a volunteer is never an employee, given the meaning of the term “volunteer” ANSWER: b 14. A company has one office with nine employees and a second office with 12 employees. If an employee who works in the first office is harassed and attempts to sue under Title VII, which of the following questions becomes a relevant issue? a. Whether this is a single, integrated enterprise b. Whether these are joint employers c. Whether the multi-employer doctrine applies d. Whether the joint payroll method applies ANSWER: a 15. Which of the following statements regarding managers is most correct? a. Under most employment laws, managers are not deemed to be protected employees b. Managers are usually not individually liable when they violate employees’ rights c. Employers are liable for the actions of managers taken within the scope of their employment d. Employers are not liable for the actions of managers if managers are held individually liable for violating an employee’s rights ANSWER: c 16. Employers may be liable for the actions of their employees within the scope of employment. With regard to the actions of employees outside the scope of employment, which of the following statements is true? a. An employer can never be liable for the actions of its employee outside the scope of employment b. An employer is always liable for the actions of its employee outside the scope of employment c. An employer might be liable for the actions of its employee outside the scope of employment if the employer was negligent or reckless in allowing it to occur, or for other reasons d. An employer is liable for the actions of its employees outside the scope of employment only if the employer intended the harm to occur ANSWER: c 17. You started your own business 2 years ago, and needed several part-time workers, but did not want and could not afford to pay them a minimum wage, or payroll taxes, so you classified them as independent contractors. At the time, a decent argument could be made that they were independent contractors, as there had been no rulings on your particular arrangement. Recently, for a business very similar to yours, the Department of Labor ruled that the workers of the business were employees, and not independent contractors. What should you do? a. Nothing, unless the Department of Labor challenges your arrangement b. Nothing, unless one of the workers complains c. Have all of the workers sign independent contractor agreements immediately d. Begin to treat them as employees, including paying a minimum wage, and withholding income taxes ANSWER: d 18. The main reason employers would rather hire independent contractors than employees is: a. it’s cheaper, and the worker has fewer rights b. the employer has more control over independent contractors Copyright Cengage Learning. Powered by Cognero.

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Chapter 02: The Employment Relationship c. the independent contractor has fewer rights under law than an employee d. independent contractors are typically more efficient in performing assigned tasks ANSWER: a 19. A worker who is not an employee is most likely: a. a partner b. a volunteer c. an independent contractor d. a student ANSWER: c 20. A worker who chooses her own hours, supplies her own tools and equipment, and works at the employer’s site is most likely: a. an employee b. an independent contractor c. a partner d. a student ANSWER: b 21. Jeremy is offered an internship at a tech company in his last semester of college. He expects to successfully complete his last semester in college and graduate in May. Typically, student-interns who successfully complete an internship are hired full time upon completion of their college degree. The tech company made clear that Jeremy will not be paid during the internship and that, should Jeremy fail to graduate in May, the internship will not be converted into full time employment. Which of the non-exclusive factors weighs more in favor of Jeremy making an argument that the tech company rather than Jeremy is the main beneficiary of the learning experience? a. The tech company promised to compensate Jeremy during the internship b. The tech company promised to compensate Jeremy upon completion of the internship c. The internship entitles Jeremy to a paid job at the conclusion of the internship d. The internship does not provide to compensate Jeremy with training comparable to that which would be given in an educations environment.

ANSWER: c 22. Regarding independent contractor agreements, which of the following statements is NOT true? a. There is no point in using an independent contractor agreement b. A good, well-drafted independent contractor agreement can help avoid liability for the firm hiring the worker c. Independent contractor agreements can help the parties clarify their employment relationship d. A well-drafted independent contractor agreement will address many issues that are used by agencies in determining the status of workers ANSWER: a 23. Which of the following items should NOT be included in a well-drafted independent contractor agreement? a. A requirement that the worker hire his own assistants b. A requirement that the firm provide health insurance for the worker c. A flat fee payment arrangement for the work d. A requirement that workers pay their own expenses Copyright Cengage Learning. Powered by Cognero.

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Chapter 02: The Employment Relationship ANSWER: b 24. Which of the following actions are most likely NOT following the scope of employment of an employee? Actions that a. relate the work the worker was hired to perform b. occur on company time at the usual place of work c. occur during work hours d. serve only the interests of the employer ANSWER: d Essay 25. Regarding undocumented workers (non-citizens in the US illegally), the policy of federal agencies has been to enforce employment laws for such workers without inquiring as to their legal status. However, the remedies available to such a worker may be limited because of his status. State and explain the policy reasons behind each of these decisions.

ANSWER: The policy of the federal government has been to enforce employment laws for all employees, regardless of legal status, in order to encourage compliance with employment laws. If the rule were otherwise, if undocumented workers could not bring action for violations of such laws unless they were in this country legally, that policy would act as an incentive to firms to hire more illegal workers, and ignore employment laws in the case of illegal workers, since there would be no adverse consequence to doing so. Further, the situation would be rife with opportunity to threaten such workers with disclosure of their illegal status to authorities, unless they did exactly what the employer wanted them to do.

The policy of limiting the remedies available to undocumented workers may be designed as a deterrent and punishment to them for their illegal status, as it does not permit them to have the benefit of employment law as other workers do. However, it may also act as an incentive for firms to hire undocumented workers, since the punishment, if any, that the firm encounters for a violation of employment law is likely to be far less than it would be for a documented worker.

26. This determination of employment status—that is, identifying whether a person performing work for another is either an employee or an independent contractor—is complex and rife with legal implications. It is a question that is often presented to courts because the parties are unable to solve their disagreements without judicial recourse. In courts, the hiring party bears the burden of proving that a person performing work is an independent contractor, and not an employee.

Do you agree or disagree with this rule? Why or why not? State and explain our position.

ANSWER: This is an opinion question, which gives the student the opportunity to think through policy issues and apply his or her own policy beliefs. Answers may range from support or not. The support case is for the rule as a fair way to balance the employment relationship with unequal power. The rejecting case could say that who claims to be entitled to the benefit of being classified as an employee bears the burden of proving that entitlement. However, the student should be able to identify the issues, and recognize the unequal power of the parties to an employment relationship.

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Chapter 03: Overview of Employment Discrimination True / False 1. Since the passage of the Civil Rights Act of 1964, employment discrimination has largely disappeared from the workplace. a. True b. False ANSWER: False 2. In a disparate impact case, the focus is on the employer’s intention. a. True b. False ANSWER: False 3. In a disparate treatment case, the focus is on the employer’s intention. a. True b. False ANSWER: True 4. A claim for retaliation can be brought only by the person who was retaliated against. a. True b. False ANSWER: False Multiple Choice 5. Which of the following is true regarding discrimination? a. The number of discrimination claims filed has decreased over the past decade as employers have paid more attention to promoting diversity in the workplace b. Discrimination has become more subtle and difficult to eliminate in recent years c. The main challenge in confronting discrimination is to get women and persons of color into workplaces; they can take it from there d. Discrimination occurs anytime that persons are treated unequally or unfairly in the workplace ANSWER: b 6. Which of the following is a protected class characteristic? a. Religion b. Height c. Intelligence d. Management status ANSWER: a 7. Which of the following is true? Title VII of the Civil Rights Act: a. protects employees only against discrimination based on race, sex, national origin, and disability b. applies to only employers that have 15 or more employees c. protects employees only against discrimination based on sexual orientation Copyright Cengage Learning. Powered by Cognero.

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Chapter 03: Overview of Employment Discrimination d. protects employees only against discrimination based on height, weight, and physical appearance ANSWER: b 8. Which of the following must be shown in order to establish a prima facie case of retaliation? a. That the employee was replaced by someone with differing protected class characteristics b. That the employee lost an employment opportunity shortly after engaging in protected activity c. That the employer’s action was based on the employee’s race, sex, or other protected class characteristic d. That the employer’s action was based on a disagreement with a superior and that the firing was unrelated to the quality of the employee’s job performance ANSWER: b 9. In disparate treatment cases: a. he focus is on proving the employer’s discriminatory intent b. the focus is on showing the discriminatory effects of the employer’s actions c. the focus is on showing that unfair treatment occurred d. the focus is on showing that the employer holds racist or sexist views ANSWER: a 10. Three employees working for the same company were found to have stolen company cargo. Two of the employees were white, and one was black. The two white employees were fired, but not the black employee. If the white employees sue, the court will most likely decide: a. for the employer, because the employees were guilty of theft b. for the employer, because the employees were employees at will c. for the employees, because the employer treated them differently based on their race d. for the employees, because their employer was within its discretion to fire some, but not all employees guilty of theft ANSWER: c 11. Regarding cases alleging disparate treatment and pretext, it is correct to say: a. disparate treatment is unintentional or accidental b. evidence in a pretext case can be either direct or circumstantial c. the employer has violated Title VII, that is if it would not have made the same decision with the absence of the discriminatory motive d. they are relatively rare and with current legislation, and are not likely to be significant in the future ANSWER: b 12. Which of the following is among the things that a plaintiff must show in order to establish a prima facie case of disparate treatment in a pretext case? a. Proof that the employer intended to discriminate b. Proof that the employer’s stated motive is not credible c. Statistical evidence of discriminatory effects d. Proof that the employer’s stated reason for its action is false or incredible ANSWER: d 13. The key element in disparate treatment is discriminatory intent. In this context, that means that: Copyright Cengage Learning. Powered by Cognero.

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Chapter 03: Overview of Employment Discrimination a. the decision-maker made the decision with intent to harm b. the decision-maker made the decision with intent to break the law c. the decision-maker made the decision in whole or in part based on the protected class characteristic of the employee d. the decision-maker made the decision with personal animus ANSWER: c 14. An employee applied for an open position in the company’s IT Department and was told by the department manager “he could not offer her the job position” because a higher-ranked manager had “said that he wanted a Korean in that position.” If proven in a court of law, this statement is: a. direct evidence of disparate impact b. indirect evidence of disparate impact c. direct evidence of disparate treatment d. indirect evidence of disparate treatment ANSWER: c 15. Which of the following is a type of disparate treatment? a. adverse impact b. retaliation c. reverse impact d. reprisal ANSWER: b 16. Fred sued his employer, Tech Inc., on adverse impact grounds. If Tech Inc. can show that the actions that affected Fred are job related and consistent with business necessity, Tech Inc. (the plaintiff) can still win by showing that: a. there is an alternative practice that would have less discriminatory effects, but Tech. Inc. declined to use it b. Tech Inc. has engaged in a pattern or practice of discrimination c. the difference in selection rates across protected class groups is statistically significant d. the four-fifth’s rule has been violated ANSWER: a 17. Which of the following is NOT a neutral requirement that is likely to result in adverse impact? a. race b. language requirement c. physical strength test d. educational attainment requirements ANSWER: a 18. Protected activity in a retaliation claim under Title VII includes: a. violent protests opposing an employer’s alleged discrimination b. testifying in court about another employee’s discrimination claim c. filing a discrimination charge against an employer d. refusing to assist in the investigation of a discrimination claim ANSWER: b Copyright Cengage Learning. Powered by Cognero.

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Chapter 03: Overview of Employment Discrimination 19. For a disparate treatment case involving pretext, which is the correct order of proof? a. plaintiff’s prima facie case, defendant’s lawful motive, plaintiff’s additional evidence supporting discriminatory intent b. plaintiff’s evidence supporting discriminatory intent, defendant’s lawful motive, plaintiff’s prima facie case c. plaintiff’s primary evidence, defendant’s primary evidence, plaintiff’s rebuttal showing discriminatory motive d. plaintiff’s evidence supporting discriminatory intent, plaintiff’s prima facie case, defendant’s lawful motive, ANSWER: a 20. Of the elements necessary to prove a case of disparate treatment involving pretext, which of the following is NOT required? a. The plaintiff applied for the employment opportunity b. The plaintiff was qualified for the employment opportunity c. The plaintiff was not hired for the employment opportunity d. The plaintiff was as qualified for the employment opportunity as the person hired ANSWER: d 21. Sheila is a plaintiff in a disparate impact case. The focus of her case must be on: a. on proving that the employer intended to discriminate against her b. on showing the discriminatory effects of the employer’s actions c. on showing that she was treated unfairly d. on showing that the employer holds racist or sexist views ANSWER: b 22. An experienced female crane operator just hired by a new firm was told it was company policy that crane operators urinate over the side of their cranes rather than stop work. The same policy applied to male crane operators. She objected to the policy, was offered alternative jobs, but none as a crane operator, and she quit. Does she have a valid claim for sex discrimination? a. No, because practice is neutral, and therefore non-discriminatory b. No, because she was offered alternative positions c. Yes, because the practice was a form of disparate impact d. Yes, because the firm did not create a different rule for bathroom breaks for her ANSWER: c 23. Of the following, the most effective way for an employer to respond to an employee’s claim of retaliation would be: a. to show that the employee is lying b. to show that the employee was not retaliated against, but rather disciplined for poor performance or the like c. to show that the employee should never have been hired in the first place d. to show that the employee belongs to a protected category.

ANSWER: b 24. Sam and Sarah, husband and wife, both worked for an aluminum siding firm, doing similar work in production. Their co-worker, Ahmed, who was a Muslim, was systematically harassed by their supervisor, who called him a terrorist, denied him the right to pray, and generally made his life at work very difficult. Sarah spoke up on his behalf, and the supervisor demoted Sam, her husband. Which of the following statements is most correct? a. Ahmed has a cause of action against the employer for retaliation Copyright Cengage Learning. Powered by Cognero.

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Chapter 03: Overview of Employment Discrimination b. Sarah has a cause of action against the employer for retaliation c. Sam has a cause of action against the employer for retaliation d. There are no causes of action arising from this set of facts ANSWER: c Essay 25. Why is each of the following good legal advice? a. Employers must not make employment decisions based, in whole or in part, on the protected class characteristics of employees b. Employers should have policies and be consistent in how they apply and enforce them c. Employment requirements and practices should be scrutinized for their potential to disadvantage protected class groups and for evidence of their job relatedness and business necessity d. Employers need to exercise particular care in making employment decisions regarding employees that have filed charges or spoken out about discrimination e. Employers need to maintain good documentation and be prepared to explain why particular employment decisions were made ANSWER: Answer a: Discrimination, disparate treatment – The statement describes the discriminatory intent that defines disparate treatment. Even when there is a mixture of lawful and discriminatory motives accounting for a decision (i.e., mixed motives), the employer has violated Title VII. Answer b: Discrimination, disparate treatment – Discrimination is a relative concept. By treating like situations alike, regardless of the protected class characteristics of the persons involved, employers go a long way toward eliminating disparate treatment.

Answer c: Discrimination, adverse impact – If neutral requirements result in disproportionate selection, the employer must be prepared to defend the job relatedness and business necessity of those requirements—or to eliminate the requirements.

Answer d: Retaliation, protected activity – Engaging in such actions does not immunize employees from adverse employment decisions, but the employer might have to defend his or her actions by showing that the motive was something other than retaliation.

Answer e: Discrimination – While employers do not generally have to defend their employment decisions, it is relatively easy for plaintiffs to establish prima facie cases of disparate treatment or retaliation.

In such cases, employers will have to produce evidence regarding their motives. Without solid, written documentation, it is difficult to do this convincingly.

26. Retaliation claims are ever more common. The urge to “get back at” employees who complain about discriminatory treatment is apparently difficult to resist. What should employers do to lessen the occurrence of retaliation?

ANSWER: Employers should •

• •

Understand their responsibilities. It is illegal for you to retaliate against (i.e., punish) applicants, employees, or former employees for filing a complaint of discrimination on a charge of discrimination with a federal, state or local agency, participating in a discrimination investigation or lawsuit (e.g., serving as a witness); or opposing discrimination (e.g., threatening to file a charge or complaint of discrimination).

Treat the employee as if she had never reported discrimination, assist her with a discrimination investigation, or lawsuit, or opposed discrimination.

Treat employees consistently. Before making employment decisions that may negatively affect the employee, ensure that you are acting consistently with past practice or that you can justify treating

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Chapter 03: Overview of Employment Discrimination • •

the employee differently.

Explain rules and expectations to all employees. Ensure that employees understand your business's discrimination policies. Inform employees that retaliation is illegal and will not be tolerated.

Encourage employees to share any concerns about discrimination with you. Respond promptly and effectively to discrimination questions, concerns, and complaints.

Hold employees accountable. Ensure that employee policies are followed and enforced consistently.

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Chapter 04: Recruitment True / False 1. Employment law discourages job openings that ask for “a recent college grad.” a. True b. False ANSWER: True 2. A firm cannot be charged with discrimination if it uses an employment agency that screens applicants for it to eliminate any minority candidates. a. True b. False ANSWER: False 3. A landscaping company stops by the Home Depot store every morning to recruit day laborers, a practice which is entirely legal. a. True b. False ANSWER: False 4. Unless there is direct evidence of a discriminatory hiring practice, the employer cannot be proven to have discriminated. a. True b. False ANSWER: False Multiple Choice 5. In NAACP v. North Hudson Regional Fire & Rescue, the NAACP sued the North Hudson fire department for disparate impact discrimination because the fire department required that potential firefighters live in North Hudson. In North Hudson, only 3% of the population was African-American, while in the Tri-county area, 37.4% of protective services workers were African-American. North Hudson claimed that residency was a business necessity. The court ruled: a. for the NAACP, because there were less discriminatory means of achieving the fire department’s goals b. for the NAACP, because the fire department intentionally discriminated based on race c. for the North Hudson Fire Department, because it was reasonable to require firefighters to live in the city so that they were familiar with streets and buildings d. for the North Hudson Fire Department, because the NAACP had not proved a prima facie case of discrimination ANSWER: a 6. Which of the following is a difference between employing foreign nationals with work visas for work in the U.S. and employing U.S. citizens? a. The eligibility of foreign nationals to work in the U.S. must be documented on an I-9 form, while this is not required for citizens b. To hire foreign nationals, a prospective employer must file an application with the Department of Labor c. Foreign nationals can be paid lower wages and offered fewer benefits than citizens d. Foreign nationals must supply proof of citizenship Copyright Cengage Learning. Powered by Cognero.

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Chapter 04: Recruitment ANSWER: b 7. For purposes of determining discrimination in recruitment, the “relevant labor market” is defined as: a. the protected class composition of the employer’s applicant pool b. the population as a whole c. the protected class composition of people qualified for the job, and living geographically close enough to be likely candidates d. the protected class composition of the geographic area ANSWER: c 8. Which of the following is true regarding want ads and job announcements? a. Employers are legally required to post written job announcements and ads b. The wording of job announcements and ads must be neutral c. Job announcements and ads must not be placed in publications that are narrowly targeted toward particular protected class groups d. An ad may be placed online, but must also be in print media ANSWER: b 9. Nepotism and word-of-mouth hiring: a. are specifically prohibited by Title VII because of their potential to produce discriminatory effects b. are not optimal recruiting procedures, but they raise no significant legal issues c. tend to produce discriminatory effects, depending on how racially homogeneous an employer’s existing workforce is d. have been subjected to numerous legal challenges, but have been consistently upheld under Title VII ANSWER: c 10. Determining whether discrimination has occurred during recruitment requires an analysis of: a. the relevant labor market b. the overall labor force c. the national labor force d. the international labor market ANSWER: a 11. Which of the following would not create potential liability for the employer if asked during an interview? a. Have you ever filed a workers’ compensation claim for a work-related injury or illness? b. Do you believe in God? c. How often do you go out on dates? d. Why do you want to work for this company?

ANSWER: d 12. Your new boss has asked you to advertise for a job opening at the firm, but said he did not want to hire any “foreigners,” by which he means, anyone who is not 100% Caucasian, and a male. He also insists that you fill the position within one week. You know, from personal experience, that when you advertise this job for only a week, only white male applicants will apply, as it takes time for word of the opening to be widely dispersed. Given your legal and ethical obligations to minimize the risk of recruiting discriminatorily (and wanting to keep your job), the best course of action for Copyright Cengage Learning. Powered by Cognero.

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Chapter 04: Recruitment you to take would be: a. place the ad, and hire a white male for the position within one week b. tell your boss that he is under specific legal requirement to place the ad for two weeks; do that, then hire the best of the applicants who apply c. place the ad, but also review your saved resumés for this position from previous applicants, knowing that they are a diverse group; start calling them in for interviews immediately, and hopefully, hire someone within a week d. quit and go find another job ANSWER: c 13. Which of the following inclusions in a want ad would be least likely to be considered discriminatory? a. Young persons wanted b. Recent college graduates wanted c. Servers/waitstaff wanted d. Recent high school graduates wanted ANSWER: c 14. In Harrison v. Benchmark Electronics, a temporary employee was asked by his supervisor to apply for the job as a permanent worker. He did so, and took a pre-employment drug test, which was positive. The Medical Review Officer, upon learning that the applicant had epilepsy, and his drugs were legally prescribed, cleared him to be hired, but his supervisor, who sat in on the Medical Review meeting, fired him. The court ruled that: a. employers are permitted to make pre-employment medical inquiries prior to a conditional offer of employment b. non-disabled applicants are not protected from pre-employment inquiries under the ADA c. the firm had a legal right to ask questions about the drug use, but not to inquire about disability preemployment d. because the applicant had tested positive for drugs, the employer could lawfully proceed to ask questions regarding disability prior to making a conditional offer of employment ANSWER: c 15. Of these possible means of recruitment, which has the greatest potential to be discriminatory? a. Use of an employment agency b. Nepotism or “word of mouth” c. Want ads d. An online posting ANSWER: b 16. It is a violation of anti-discrimination laws to place a want ad indicating a preference based on: a. high school graduation b. GPA c. languages spoken d. national origin ANSWER: d 17. Which of the following question is not advisable during pre-employment inquiries? a. The question, “Have you ever been convicted of a crime?”

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Chapter 04: Recruitment b. The question, “Are you at least 18 years of age?” c. The question, “Are you a U.S. citizen?” d. The question, “Are you available to work on weekends?”

ANSWER: c 18. Which of the following practices would be discriminatory? a. Placing an ad in a metropolitan daily newspaper b. Placing an ad in a local newspaper c. Placing an ad asking for “young people” d. Placing an ad asking for someone with recent experience ANSWER: c 19. Which of the following kinds of advertising is legally prohibited? a. Advertising a job opening in a foreign language newspaper b. Advertising a job opening inviting women and minorities to apply c. Advertising a job opening in a church bulletin d. Advertising a job opening for Swedish people only ANSWER: d 20. Which of the following statements is NOT true? a. Employers should advertise written job announcements to the public b. Anti-discrimination laws do not apply to employment agencies c. An employer should preserve evidence, especially if it suspects a claim will be filed against it d. Word-of-mouth advertising is potentially discriminatory ANSWER: b 21. Which of the following practices would be discriminatory? a. Using the same application form for different people applying for the same position b. If an applicant seems an unlikely candidate, discouraging him from applying for the job c. Accepting applications for a position for only one week d. Accepting applications for a position only from online submissions ANSWER: b 22. Identify the correct statement about social media and recruiting: a. Employers cannot use information gathered from social media to assess a job candidate b. Social media sites like Facebook can be held liable if they contribute to potential discriminatory effects of targeted job ads posted on those sites c. Through social media, an employer may learn about protected class characteristics of job candidates d. Employers can lawfully use the ad-targeting capabilities of social media platforms to exclude protected class groups from receiving information about job opportunities ANSWER: c 23. Which of the following is true regarding fraud claims? a. They can be completely avoided by not saying anything Copyright Cengage Learning. Powered by Cognero.

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Chapter 04: Recruitment b. They differ from breach of contract claims primarily in the degree of harm suffered by the plaintiff c. The false statement was made intentionally or with reckless disregard for the truth d. If injury occurs, it doesn’t matter whether the false statement was made intentionally or unintentionally ANSWER: c 24. Which of the following interview topics would NOT be considered inquiries regarding an applicant’s medical condition? a. The question, “Have you ever been injured?” b. The question, “Have you ever been ill?” c. The question, “How are you?" d. The question, “Have you ever filed a worker’s compensation claim?”

ANSWER: c Essay 25. Discuss whether and why the following actions are lawful or may cause problems to the employer: a. Use multiple recruiting mechanisms, rather than rely solely on one way of getting the word out about employment opportunities. b. When applications are being accepted, an employer should discourage certain individuals from applying to save time in reviewing the applications. c. To make the process more efficient and exclude job candidates more quickly, employers should ask, directly or indirectly, about the protected class characteristics of job candidates.

ANSWER: Answer a: Discrimination, adverse impact – There is no legal requirement that different avenues be used to communicate the availability of jobs. However, the use of multiple mechanisms increases the chance that no protected class groups will be left out of the loop. This lessens the chance of adverse impact and promotes equal employment opportunity generally.

Answer b: Discrimination, disparate treatment – Discouraging applications through some sort of onthe-spot appraisal of candidates, invites disparate treatment, or the appearance of it, since the criteria used must be superficial and readily observable (characteristics like race and sex). The application process should be geared toward uniformity and providing each applicant with equal consideration.

Answer c: Discrimination, disparate treatment – These inquiries do not violate Title VII, but they are strongly discouraged by the EEOC and in a disparate treatment case they will be taken as evidence of discriminatory motive. The ADA expressly prohibits pre-employment inquiries about disability, although enforcement is still based on the information being used to disadvantage candidates. Some state laws explicitly prohibit such inquiries. The bottom line is that while just asking will not get an employer into trouble, there is no lawful use for the information.

26. You have been hired by the owners of Brew & Beef, a local family owned restaurant. They would like to open a second restaurant (Brew & Beef II) across town and have asked your advice regarding the recruitment of employees. One of the owners and her sister will be managing the new site and they are transferring part of their chef staff to the new facility, so they need your advice regarding the hiring of wait staff, bus staff, custodial help, and kitchen help. Recent discrimination lawsuits have been in the news, and they want things to go smoothly and legally. What advice would you give them?

ANSWER: While word of mouth advertising is legal, a written advertisement, properly disseminated, should be prepared. Since the restaurant is local and the types of jobs being advertised for would not necessitate a Copyright Cengage Learning. Powered by Cognero.

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Chapter 04: Recruitment national or international search, a local search would likely be sufficient. Therefore, advertisement in local newspapers would be appropriate. It is important to select newspapers of general circulation and not just those that are specific to a particular area or particular group. It would be safe to also include advertisements in newspapers aimed at localized areas if there is a probability that people in those areas don’t read the general circulation papers. Information regarding the opportunities should be disseminated as widely as possible. The announcement itself should be written as neutrally as possible, omitting references to age and sex, and obviously omitting references to race, color, religion, and national origin.

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Chapter 05: Background Checks, References, and Verifying Employment Eligibility True / False 1. An employer has the right to check references and generally delve into the background of job applicants, and the applicants have no expectation of privacy if they apply for a job. a. True b. False ANSWER: False 2. Checking whether a job applicant has ever been arrested is never discriminatory. a. True b. False ANSWER: False 3. The Fair Credit Reporting Act applies to reports containing information about character and reputation drawn from personal interviews with friends, neighbors, or other associates. a. True b. False ANSWER: True 4. All employers are prohibited from knowingly hiring or retaining on the job unauthorized aliens. a. True b. False ANSWER: True Multiple Choice 5. Negligent hiring: a. makes employers liable for harm that occurs when employees act within the scope of their employment b. makes employers liable for any harm that is caused by their employees c. makes employers liable for harm that occurs when employees who were not properly screened act outside the scope of their employment d. holds employers blameless for harm caused by their employees outside the scope of their employment ANSWER: c 6. In order to avoid liability for negligent hiring, the primary question an employer must consider is: a. whether the employer’s own written hiring policies are adequate b. whether placing an unfit person in the particular job could be expected to result in harm c. whether there is evidence of a candidate’s unfitness that could be found through a thorough personal interview with the applicant d. whether the employer complied with its own written hiring policies ANSWER: b 7. A former employee of your firm was dismissed when it was suspected that she had stolen from the petty cash account.

It could not be proven, but suspicions were strong enough that the firm decided to let her go. She has now applied at another firm, and listed your firm as a reference. What should you do? a. Tell the prospective employer about your suspicions, or you might be held liable if she steals money from Copyright Cengage Learning. Powered by Cognero.

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Chapter 05: Background Checks, References, and Verifying Employment Eligibility them and you didn’t tell them b. Don’t tell them about your suspicions; just give her a glowing reference c. Don’t tell them about your suspicions; just give a “service” reference d. Tell them that the former employee stole money ANSWER: c 8. A company hired a file clerk, but did not inquire into his criminal history. In fact, he has had several convictions for driving while intoxicated. On a lunch break, he got drunk and assaulted a waitress at a nearby restaurant. If the waitress sues the employer, a court would most likely decide that: a. the employer is liable under respondeat superior for the harmful act of the employee because it occurred during the workday b. the employer is liable for negligent hiring because the employer had an obligation to check his criminal background, it did not do so, and this led to him harming another person c. the employer is not liable for negligent hiring because the employee did not assault the waitress on company property d. the employer is not liable for negligent hiring because the job does not subject people to risk, and the evidence of unfitness was not related to the job ANSWER: d 9. A valid background check should NOT include: a. checking an applicant’s marital status b. verifying an applicant’s military service c. checking an applicant’s driving record d. verifying an applicant’s degrees and/or licenses ANSWER: a 10. Which of the following is a defense to a defamation claim against an employer? a. The employee gave his consent to make the statement b. The statement was made by the director of the Human Resources Department c. The statement was mostly true d. The employee is known to lie ANSWER: a 11. A project manager applied for a job, and listed his previous employer as a reference. When the prospective employer called, the man who gave a reference for the project manager falsely implied that the project manager was incompetent, even though he had never worked with or supervised the employee, nor checked any employment records. The project manager did not get the new job. If the project manager sues his former employer for defamation, the court will likely rule that: a. the employer did not defame the former employee because its statements were merely opinions and did not purport to be factual b. the employer did not defame the former employee because the statements, although harsh, were truthful c. the employer defamed the former employee because statements made in references are not subject to qualified privilege d. the employer defamed the former employee because the employer was recklessly indifferent to the truthfulness of the statements made ANSWER: d Copyright Cengage Learning. Powered by Cognero.

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Chapter 05: Background Checks, References, and Verifying Employment Eligibility 12. A salesman was to attend a meeting in a nearby city, but as he traveled there in his car, traffic was light, and he arrived about an hour early. Deciding not to waste the time, he went to a nearby shopping center to search for a birthday gift for his son. He found a tablet that he knew the boy would like, and headed out to drive to the building where the meeting was to be held. As he backed out of the parking space, however, he hit another car, damaging the car and injuring the driver.

Under the doctrine of respondeat superior, is his employer liable for the accident? Why or why not? a. Yes, the employer is liable for the accident because the salesman was driving to attend a company meeting b. No, the employer is not liable for the accident because the salesman was on an errand of his own at the shopping center ANSWER: b 13. Identify the correct statement regarding the use of credit reports. a. Consumer reports but does not investigate reports that fall within the scope of the Fair Credit Reporting Act b. Credit reports are typically accurate and employers can use them without worrying about inaccuracies c. To avoid liabilities, employers must mix credit reports from federal and state agencies d. The law does not restrict the use of information about individuals’ personal finances in making employment decisions ANSWER: d 14. Mike is the chair of the management department at a local university and Tom is an ethics professor in that department. They dislike each other immensely due to a number of professional and social disagreements. Mike calls Tom into his office and closes the door. He then informs Tom that he believes that Tom is guilty of plagiarism and also guilty of an improper sexual relationship with Kathy, a 19-year-old management student. In fact, Tom is a happily married man who is extremely well respected in the community and has never committed adultery. Deeply believing in ethics, he has never committed plagiarism in his life. Furthermore, he has always been absolutely professional with regard to his student Kathy. Tom vehemently denies these charges and as he gets up to leave, Mike states, “Give me any more trouble and I go public.” Tom goes right to his attorney who files a defamation law suit that afternoon. a. Tom will win because the statements are both lies, challenging his integrity and character b. Tom will win because his reputation has been damaged c. Mike will win because as chair, he has a qualified privilege to make these types of statements d. Mike will win because the statements were not published ANSWER: d 15. The Immigration Reform and Control Act: a. requires that employers not hire or employ aliens b. requires that employers not discriminate based on national origin and citizenship c. allows employers to hire an unlimited number of foreign nationals under the H-1B visa program d. requires that employers check the authenticity of work authorization documents offered by the applicant ANSWER: b 16. Which of the following is true regarding criminal background checks? a. An employer is required to do a criminal background check for all applicants; otherwise, it may be deemed guilty of discrimination if it does background checks for some types of jobs but not for others b. A thorough criminal background check is required only when the applicant will be working with money c. Employers should consider the seriousness, recency, and job-relatedness of convictions before denying employment on that basis Copyright Cengage Learning. Powered by Cognero.

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Chapter 05: Background Checks, References, and Verifying Employment Eligibility d. If an employer does a criminal background check, the employer must check all state and federal databases ANSWER: c 17. Which of the following is a true statement regarding employer compliance with the Immigration Reform and Control Act? a. Employers must verify a person’s eligibility to work in the United States before the new employee begins work b. Employers are required to copy and retain copies of the documents used by the employee to prove eligibility to work in the United States c. If they appear to be genuine, employers are not required to investigate or verify the authenticity of documents presented or supplied by the employee d. Employees must present certified copies of whatever documents they use to verify eligibility to work ANSWER: c 18. The Fair Credit Reporting Act refers to which two kinds of reports? a. A consumer credit report, which reports only credit-worthiness, and an investigative report, which reports the results of interviews with neighbors, colleagues, and the like b. A consumer credit report, which reports credit information and general character information, and an investigative report, which reports the results of interviews with neighbors, colleagues, and the like c. A fair credit report, which guarantees accuracy, and a character reference report, based on personal interviews of neighbors, colleagues, and the like d. an investigative report, which reports the results of interviews with neighbors, colleagues, and the like, and a fair credit report, which guarantees accuracy ANSWER: b 19. After three weeks in your new position as Assistant Human Resources Director, the HR Director has asked you to take a candidate all the way through the process, from application to interview, to background check. The firm has an opening for an electrical engineer who is proficient with construction blueprints. The engineer will be helping to build the company’s new warehouse, which is about to begin construction. Which of the following steps would be necessary to take during the background check? a. Do a thorough criminal background check through all 50 states b. Check to see that the applicant has a degree in electrical engineering c. Check references at all of the applicant’s former places of employment, going back to high school d. Check the applicant’s GPA on courses for electrical engineering ANSWER: b 20. You’ve now been on the job for a few months in your role as Assistant Human Resources Director, and have acquired some experience in interviewing and background checks. While doing a background check on a candidate for a secretarial position, you discover that the candidate was arrested several years ago while in college, and accused of damaging university property. What should you do? a. Disqualify the candidate for unfitness b. Talk to the candidate to find out what the report is all about c. Aisregard the report, as it’s an arrest, and not a conviction d. Disregard the report as it occurred at the university, not on the job site ANSWER: b Copyright Cengage Learning. Powered by Cognero.

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Chapter 05: Background Checks, References, and Verifying Employment Eligibility 21. Which of these actions by an employer would most likely result in a claim for defamation? a. Getting a signed consent from a former employee, authorizing the employer to provide information about her job performance b. Providing a letter of reference for an employee who is being terminated, stating the reasons for dismissal c. Giving only information that verifies that the former employee worked there, but nothing else d. Gving all information about the reasons for dismissal, with which the employee disagrees ANSWER: d 22. Which of the following statements is NOT true? a. Employers may contact an applicant’s previous employers b. Employers may conduct a thorough and comprehensive background check of every applicant c. Employers may obtain an applicant’s consumer credit report d. Employers may perform a criminal background check searching for arrests ANSWER: d 23. “Knowledge” as an element of the tort of negligent hiring, means all of these EXCEPT: a. the employer knew the employee was unfit b. the employer should have known the employee was unfit c. the employer would have known the employee was unfit if it had done an appropriate background check d. the employer had no first-hand knowledge of unfitness ANSWER: d 24. Which of the following is NOT an example of an employee acting within the scope of employment? a. A driver of an armored car owned by his employer became enraged and assaults at a motorist b. A store employee chases, in a mall parking lot, a customer running away with stolen merchandise c. An employee delivering a fridge at the customer’s residence hits and destroys an antique vase in display in the customer’s living room d. A university employs fails to secure a banner at the entrance of campus. As a result, the banner falls and hits a high school student visiting campus during open house ANSWER: a Essay 25. Why is each of the following good legal advice? a. Background checks must be more extensive when hiring for positions in which unfit employees could do serious harm to others. b. Employers should document all efforts to obtain information on job candidates, even when those efforts are not successful. c. Former employers should verify the identities of persons seeking information about former employees, such as by requiring that requests be made on company letterhead. d. Employers should consider, on an individual basis, the seriousness, job relatedness, and recentness of any criminal convictions before using them as grounds for denying employment. e. For all persons hired, employers must view documents establishing identity and eligibility to work in the U.S. and record the documents examined on I-9 forms.

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Chapter 05: Background Checks, References, and Verifying Employment Eligibility ANSWER: Answer a: Negligent hiring, foreseeability – There is no single standard for how extensive a background check must be. Instead, the employer’s duty is determined in large part by how foreseeable it was that hiring an unfit person for a particular job would result in harm to others.

Answer b: Negligent hiring, knowledge – Employers are in a stronger legal position if they document their efforts to check into the backgrounds of candidates. It is more difficult to argue that the employer should have known of the employee’s unfitness if reasonable efforts were made to find the information.

Answer c: Defamation, qualified privilege, overly broad publication – Employers are generally shielded by qualified privilege when providing references. To ensure that this privilege is not lost by communicating information overly broadly to persons without a legitimate need for the information, it is sensible to verify the identities of persons requesting information.

Answer d: Adverse impact – Persons of color have substantially higher rates of conviction than whites. Thus, excluding persons with convictions will result in adverse impact. Employers can defend this selection criterion as job related and consistent with business necessity by considering the nature of the offense in light of the job in question.

Answer e: Immigration Reform and Control Act – This is the mechanism through which the Act’s prohibition against hiring undocumented workers is implemented.

26. You have been hired as the assistant director of a company’s Human Resource Department. The director calls you in and tells you that she is considering a suggestion to the Board of Directors that the company adopt a policy of refusing to give substantive information on employee references. She asks you if adopting such a policy makes sense. What advice will you give to her?

ANSWER: Students answers will vary, but they should note that there is no requirement (other than a service letter requirement in some states) that the company even respond to requests for references. However, some sort of response would likely foster good-will with companies making the request so providing responses should benefit the company over time. Failing to give substantive information may result in other employers also refusing to give substantive information about their former employees.

With the possibility of law suits for providing derogatory or negative information, failing to provide substantive information would certainly reduce the company’s exposure. Even though the frequency of defamation law suits is not high and employee successes are minimal, the cost of defending law suits does cause a concern. Substantive references also give rise to the possibility of negligent referral and retaliation law suits if improper information is accidentally transmitted. While these suits are also relatively infrequent, the cost of defense must be paid. The courts have already litigated and decided that failure to give substantive information cannot be an implication that the information, if provided, would have been negative. Therefore, limiting referrals to dates of employment and possibly job titles, without other substantive information would be the safest course of action for the company, although perhaps not the best course of action.

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Chapter 06: Employment Tests True / False 1. Content validity is demonstrated when people who are doing the job well, pass the test required for those who are applying for the job. a. True b. False ANSWER: False 2. A discriminatory test may never be used. a. True b. False ANSWER: False 3. The Fourth Amendment to the U.S. Constitution prohibits drug testing, as it is an unreasonable search and seizure. a. True b. False ANSWER: False 4. A “medical examination” is any test that requires a doctor. a. True b. False ANSWER: False Multiple Choice 5. Which of the following statements is most correct about the legality of drug testing? a. Drug testing will usually be upheld, provided that the employer had reasonable grounds for suspecting that the individual employee was under the influence of drugs b. Drug testing will usually not be upheld if it is legally challenged c. Drug testing will be upheld for private sector employees, but not for public employees d. Drug testing will usually be upheld, but random testing procedures are the most susceptible to challenge ANSWER: d 6. Drug testing may include samples of all of the following EXCEPT: a. blood b. saliva c. hair d. fingernails ANSWER: d 7. The Drug Free Workplace Act requires that: a. employees must be drug tested at the time of hire and whenever there is reasonable suspicion of drug use in the workplace b. employers must develop and communicate polices prohibiting drug use, possession, or sale in the workplace c. employers must terminate all employees who are found more than once to be using drugs in the workplace Copyright Cengage Learning. Powered by Cognero.

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Chapter 06: Employment Tests d. employees must be drug tested and fired if they test positive ANSWER: b 8. Which of the following is considered a “medical exam” under the ADA? a. Drug test for illegal substances b. Genetic test c. Physical fitness/agility test d. Vision tests for ability to read or recognize objects ANSWER: b 9. Which of the following is true regarding medical exams under the ADA? a. All medical exams must be voluntary b. Medical exams conducted following conditional offers of employment may see medical information that is not job-related c. Only if an employee’s condition makes him a direct threat to himself or others can he be denied an employment opportunity based on a medical exam d. People who are disabled or look disabled may be singled out to receive medical exams based on their condition ANSWER: b 10. Of these outcomes, which is LEAST likely for a positive drug test? a. A confirmatory test b. A chance for the employee to explain the results c. An offer to participate in a substance abuse program, if appropriate d. Immediate termination from employment ANSWER: d 11. About half of the states have drug testing laws. Identify the correct statement regarding these laws: a. No state prohibits blood testing b. No state prohibits all drug testing c. No state law permits marijuana testing d. No state law permits blood testing ANSWER: a 12. Employers must show that a scored test is job related and consistent with business necessity: a. only if the test is having discriminatory effects b. any time that a test is used c. only if content validity cannot be established d. only if criterion validity cannot be established ANSWER: a 13. To determine if a scored test is having discriminatory effects: a. see if the number of women and persons of color hired is at least four-fifths of the number of white males hired b. see if the proportion of women and persons of color hired is roughly equal to the proportion of women and Copyright Cengage Learning. Powered by Cognero.

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Chapter 06: Employment Tests persons of color in the relevant labor market c. compare the pass rates for different protected class groups and see if the pass rate for any group is less than four-fifths of the pass rate for the most successful group d. compare the number of persons from different protected class groups that pass the test and see if the number of persons passing for any group is less than four-fifths of the number for the most successful group ANSWER: c 14. Which of the following is true regarding the Employee Polygraph Protection Act? a. It applies to polygraphs but not to voice stress analyzers b. It applies both to private sector employers and governmental agencies c. It prohibits the use of polygraphs by private sector employers for any reason d. It does not apply to, or prohibit, pencil and paper honesty tests ANSWER: d 15. Content validation studies: a. examine whether behaviors and skills tested, closely represent behaviors and skills used on the job b. examine test items to ensure that they measure what they purport to measure, and do not include irrelevant or biased questions c. demonstrate a statistical association between test performance and job performance d. show that the skills used on the job match the market's needs for that job ANSWER: a 16. Which of the following is NOT a medical exam? a. A physical fitness test b. An HIV test c. A test to check for the use of alcohol d. A vision test analyzed by an ophthalmologist or optometrist ANSWER: a 17. A criterion validation study need not: a. be based on a thorough job analysis b. include a representative sample c. demonstrate a statistical association between test performance and job performance d. measure the skills required for the job ANSWER: d 18. Regarding drug tests, which of the following statements is true? a. The employer is free not to perform a second confirmatory test if requested by the employee b. The employer does not have a duty to allow the employee access to samples so that the employee can have her own test done c. The employer must begin the test again with a new sample d. The employee must be provided with notice that drug testing is required ANSWER: d 19. For union employers, drug testing is: Copyright Cengage Learning. Powered by Cognero.

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Chapter 06: Employment Tests a. prohibited b. permitted only under certain conditions c. a subject of mandatory bargaining d. negotiated by the employee on an individual basis with their supervisor ANSWER: c 20. Drug testing laws, both state and federal, require that: a. employers use due care in conducting tests and handling samples b. employers refrain from drug testing unless required by law c. employers routinely drug test all employees d. none of these are required by both state and federal laws ANSWER: d 21. You have just concluded an employment interview with an applicant you like, who is qualified for the inside sales job you have been interviewing for, and have made a conditional offer of employment. You tell the applicant that you want her to take a medical exam, and if she passes, she has the job. She is at first obviously happy and seemingly relieved, but then breaks down in tears. She tells you that a medical will show that she is HIV positive. What should you do? a. Tell her not to worry, and that if she otherwise passes the medical exam, she has the job b. Tell her that you’re sorry to hear about her affliction, and obviously, you cannot hire her c. Report her to the County Health authorities ANSWER: a 22. You are the HR Manager of your firm, and you pride yourself on being up to date with legal requirements, and on the cutting edge of your field. You’ve just gotten a mailer about a new test kit which would perform genetic testing by pricking a finger, dripping the blood sample onto a tab, and mailing it in to a lab. You think how this could be applied to your employees and applicants, and what you might be able to save on health insurance costs. What should you do? a. Order a gross of the genetic testing kits as soon as possible b. Call the company attorney to ask how you could test the entire staff without their knowledge c. Throw the mailer in the trash; its use in this context would be illegal ANSWER: c 23. Your firm’s lunchroom has been a congenial gathering place for employees while they are taking their lunch breaks, but lately, lunches that employees have brought from home and put into the refrigerator in the morning have disappeared by lunch time. This has happened several times, and the employees have now started to accuse one another of stealing lunches. Morale has fallen, and you must do something. Of the following, which is your best option? a. Conduct polygraph tests of all of the employees b. Conduct polygraph tests of all employees who use the lunchroom c. Install a video camera, and train it on the refrigerator in the lunchroom d. Prohibit use of the refrigerator by anyone ANSWER: c 24. You are in the process of revising your pre-employment tests, as your current test is out of date, and may have discriminatory effects. A new company offering a pre-employment test has given you a sample of their test, which they tell you has had great success in screening to acquire only honest employees. Applicants are to agree or disagree with several statements, including this one: “I believe God wants us to conduct ourselves with honesty in all things, including at work.” Which of the following statements is most correct?

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Chapter 06: Employment Tests a. The test will have no discriminatory effect, and will successfully screen for honest employees b. The test may have a discriminatory effect, and should not be used c. You should wait to see how the test performs for other companies, so that you can decide whether or not to adopt it ANSWER: b Essay 25. Employment tests are designed to help employers select people who will perform their jobs well. Discuss at what conditions employers can use tests lawfully to predict future job performance.

ANSWER: The essay should discuss what employment tests are and the broad context in which they can be sued. To use them lawfully, employers should have evidence of validity for all of their tests, but must do so for tests that have discriminatory effects. This entails engaging in content validation and in criterion validation. Rather than wait to be sued, employers should study the validity of tests before they are put into use, and/or make sure that companies from which tests are purchased have done so.

26. Non-medical tests used for making employment selection decisions must be scored in some way. Name and discuss the various legal and illegal methods that employers utilize.

ANSWER: Much of the time, employers establish cutoff scores in which they select a number, above which is passing and below which is failing. Those above the passing score can further be ranked by simply considering the highest score to be the most qualified in comparison with those less qualified. Cutoffs are acceptable when they are reasonable and consistent with normal expectations of acceptable proficiency. Employers should refrain from setting different passing scores for different races, nationalities, sexes, or other named protected characteristic. This is called race norming (whether it is based on race or not) although the term gender norming has been widely accepted in issues related to sex, and is illegal. Employers can diminish the potential discriminatory effects of a test by utilizing the technique of banding test scores. In banding, scores within a range are treated equally so statistical differences and possible problems with the test are minimized. Banding is much like university grading where a final grade of “B” may be earned with a final average that falls between 80 to 89 (or whatever range the school has implemented).

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Chapter 07: Hiring and Promotion Decisions True / False 1. Because appearance skews so heavily in favor of attractive people, weight, and appearance are protected categories in most jurisdictions. a. True b. False ANSWER: False 2. One of the grounds for recognizing BFOQs is privacy. a. True b. False ANSWER: True 3. For both public and private employers, courts subject the use of racial preferences in affirmative action plans and are subject to strict scrutiny. a. True b. False ANSWER: True 4. Even though an applicant is qualified, an interviewer can defeat a claim of disparate treatment if he declines to hire based on his subjective judgment. a. True b. False ANSWER: False Multiple Choice 5. The bona fide occupational qualification (BFOQ) defense: a. applies to intentionally discriminatory policies but not to neutral policies that result in discrimination b. permits race or color to be used as selection criteria, but only under circumstances where employers can make a very strong case for why that is necessary c. is the only means by which employers can avoid liability for facially discriminatory policies or practices d. is never effective against a claim of racial discrimination ANSWER: c 6. Which of the following is most likely a proper application of a BFOQ? a. Transferring pregnant women out of a department that worked with chemicals known to be harmful to a fetus b. Not hiring women for the night shift because the factory is in a very dangerous part of town and the company parking lot requires a ½ mile walk to the site c. Requiring airline pilots to retire at 60 years’ old d. Requiring all airline employees to retire at 60 years’ old ANSWER: c 7. The machinery in a plant is old and was designed for use by an “average-sized male.” Citing safety concerns, the company hires only average-sized males for jobs working in the plant. If a female applicant for a job at the plant is not hired and sues, a court would most likely rule that: Copyright Cengage Learning. Powered by Cognero.

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Chapter 07: Hiring and Promotion Decisions a. the employer violated Title VII by facially discriminating based on sex b. the employer violated Title VII because the selection criterion of size has an adverse impact on women and is not job related and consistent with business necessity c. the employer did not violate Title VII because the employer could establish a BFOQ based on its safety concerns d. the employer did not violate Title VII because any adverse impacts on its hiring criterion was justified as job related and consistent with business necessity ANSWER: a 8. Which of the following would NOT be considered a sex-plus policy issue? a. hiring women only after they have gone through menopause b. requiring men, but not women, over 40 years old to have annual physicals c. hiring male newlyweds but not hiring female newlyweds d. asking men and women about childcare arrangements during a pre-employment interview ANSWER: d 9. In Lewis v. Heartland Inns of America, a front desk worker was fired following complaints by one manager that her dress style was “more masculine,” and that she had “an Ellen DeGeneres kind of look.” If she sues, the court will most likely decide: a. for Heartland Inn, because plaintiff did not prove that she was treated differently than similarly situated males b. for Heartland Inn, because Lewis did not comply with the Heartland dress code c. for Lewis, because of the manager’s personal bias toward her d. for Lewis, because the kind of sex stereotyping she encountered constituted sex discrimination ANSWER: d 10. Which of the following is FALSE regarding grooming and appearance standards for employees? a. Applying different standards to men and women may result in sex-plus discrimination b. Standards that are sex-stereotypical in nature are likely to be discriminatory c. Dress requirements that result in harassment are likely to be discriminatory d. Applying different standards to men and women will result in sex-plus discrimination ANSWER: d 11. The use of subjective criteria by employers: a. is legal as long as the criteria can be systematically measured and quantified b. tends to result in the hiring of fewer African-Americans and Latinos c. requires a formal validation study to be conducted if the criteria produced an adverse impact d. if well documented, allows employers to hire employees without the right of unlawful discrimination ANSWER: b 12. Which of the following statements is most correct regarding the interviewing process? a. The degree of subjectivity in interviewing applicants tends to be low b. The use of a structured interview may provide more uniform results, and fewer charges of discrimination c. The degree of subjectivity in interviewing applicants tends to be uniform d. Interviewers generally know when they are responding negatively based on stereotypes Copyright Cengage Learning. Powered by Cognero.

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Chapter 07: Hiring and Promotion Decisions ANSWER: b 13. Which of the following not a ground for establishing BFOQs? a. Privacy b. Public safety c. Appearance d. Authenticity ANSWER: c 14. Regarding subjective criteria, which of the following statements is NOT true? a. Subjective criteria often operate on “gut” instinct b. Subjective criteria may be responsible for discriminatory decisions c. An assessment of motivation is not a subjective criterion d. An assessment of “soft skills” is likely subjective ANSWER: c 15. Althea interviewed, was hired, and received a contract of employment in writing. Aside from wages and start date, what is the next most important thing for her to look for in the contract? a. Whether the contract was reviewed by lawyers b. Whether employment at will applies c. Whether the offer of employment is conditional d. When she will be eligible for vacation ANSWER: c 16. Promissory estoppel claims: a. arise when employment contracts are breached b. require evidence of intent to deceive c. require reasonable reliance on a clear promise d. arise whenever a promise is made ANSWER: c 17. A BFOQ may be recognized in all of these situations EXCEPT when: a. there is a need for privacy b. there are public health concerns c. making a performance authentic is needed d. there is a preference for a certain gender ANSWER: d 18. “Glass ceilings:” a. are primarily a problem for women rather than people of color b. have been the focus of enforcement actions by the OFCCP c. are primarily a problem in the financial sector d. no longer exist ANSWER: b Copyright Cengage Learning. Powered by Cognero.

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Chapter 07: Hiring and Promotion Decisions 19. Regarding promotions, which of the following would NOT constitute good information and advice for managers? a. Assessing who is eligible for a promotion may begin with the jobs to which people are assigned when they are hired b. Training and development programs should be developed, and made available to all c. Since not all are qualified to be promoted, it is not advisable to post or announce possible promotion opportunities; rather one should advise only the people who may be qualified d. One should consider applications for promotion from all who are interested, even if they do not appear to qualify ANSWER: c 20. Which of the following statements is NOT true as to discrimination against caregivers? a. Sex stereotyping is a common form of discrimination against caregivers b. The EEOC has highlighted the issue of discrimination against caregivers c. “Caregiver” is a new protected class under EEOC guidelines d. Disparate treatment is the most common form of discrimination against caregivers ANSWER: c 21. You are the manager of your division at a large technology firm, and have been waiting to get approval to hire a new person. You have someone in mind: your long-time friend and college roommate, who you know would be a terrific fit with your team. But you are also aware that the company wants to increase its diversity, especially with regard to women.

You worry about this, since your team is all male, and adding a woman would change the dynamics considerably. You’ve now advertised the new position, as required, and the two best candidates are your friend, and a Latina woman you have never met before. Neither candidate has met your team. Of the following, which would be the best decision? a. Hire your friend; you know he’ll fit with the current team b. Hire the woman; the firm will be happy that you’ve improved diversity c. Have both candidates meet with your team, each one separately, and get their input on the candidates; then decide based on their preference d. Have both candidates meet with your team, each one separately, and get their input on the candidates; then make the decision on your own, objectively ANSWER: d 22. Your firm has been repeatedly accused of discrimination, and your boss, knowing that you just graduated from college with a degree in Management, and a certificate in Human Resources Management, has asked you to review the company’s practices and procedures with regard to hiring and promotion, and eliminate those that could lead to discrimination.

Which of the following practices would NOT likely lead to discrimination? a. Evaluating candidates based upon technical skills (70%) and interviews (30%) b. Having the interviewers meet as a group to “coordinate” their interview scores c. Weighting the answers to some questions over others d. Excluding certain applicants based on how they are dressed for the interview ANSWER: a 23. With regard to the situation in the preceding question, which of the following practices would you recommend to help avoid discrimination, and what is the basis for your recommendation? a. Have the interviewers interview the candidates at the same time, to reduce differing opinions b. Do not allow the interviewers to change their scores developed during the interview, as this will remove score Copyright Cengage Learning. Powered by Cognero.

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Chapter 07: Hiring and Promotion Decisions manipulation c. Continue to weigh the answers to those questions which are more important, because this is necessary to acquiring compatible workers, and does not discriminate d. Discard the interview results and base hiring decisions exclusively on self-reported technical skills ANSWER: b 24. Your firm has been wanting to hire another engineer for some time, and your supervisor has just made an offer to someone from out of state. The hiree is in the process of selling his house, and moving his family to your city. But you are well aware that the economic downturn has sharply curtailed business, and you don’t see how the current level of business can support another engineer. In fact, you are all a little concerned about layoffs. You know that your supervisor also knows all of this, but he has told you that he won’t withdraw the offer until he absolutely has to. By that time, the hiree may well have sold his home and moved his family, but have no new job with your firm. If the offer is withdrawn under these circumstances, and the hiree sues, which causes of action, if any, might be successful? a. Breach of contract and promissory estoppel b. Promissory estoppel and fraud c. Fraud only d. Breach of contract only ANSWER: b Essay 25. Discuss how employers can conduct a job search so that they can more easily identify candidates with desired abilities. Provide examples.

ANSWER: Employers should assess whether the advertised position fits the applications of the BFOQ defense. This defense is narrow and facially discriminatory policies will rarely be upheld. Even if it is true that, on average, persons with particular protected class characteristics are more suitable for a job, the employer should measure the underlying characteristics that actually predict success on the job rather than use protected class as a convenient proxy. Courts are more willing to find a BFOQ based on age for jobs that have a substantial public safety component, but there must be evidence that older employees pose a significant risk and that there are obstacles to conducting more individualized, on-going assessments of health status.

26. What rules and procedures should employers establish with regard to interviews of job applicants?

ANSWER: Employers would be wise to develop structured interviews for employment applicants, and limit the number of people who conduct interviews. Unstructured, free-ranging interview questions left to the discretion of the interviewer(s) can lead to charges of discrimination. Developing a static list of questions to be asked to every candidate provides uniformity, and increases the chances that applicants will be treated equally. Also, limiting the number of persons conducting interviews can help ensure that those persons are qualified to interview, have experience, and will conduct interviews within legal boundaries.

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Chapter 08: Harassment True / False 1. Only harassment that is linked to a protected class is prohibited by Title VII. a. True b. False ANSWER: True 2. To be actionable, the more “severe” harassment is, the less “pervasive” it needs to be. a. True b. False ANSWER: True 3. Same-sex harassment is actionable only if it is “because of sex.” a. True b. False ANSWER: True 4. A valid investigation of a harassment claim by an employer requires at least due process. a. True b. False ANSWER: False Multiple Choice 5. Which of the following is true of harassment? a. All harassment cases involve sexual harassment b. Harassment is legally actionable because it is a form of discrimination c. Harassment claims are rarely brought by men d. All harassment claims are actionable ANSWER: b 6. Which of the following is a necessary element of a sexual harassment claim? a. The harasser intended to inflict emotional distress and embarrassment on the victim b. The sex of the harasser differed from the sex of the victim c. The harassment was unwelcome d. The harasser made a sexual advance or requested a sexual favor ANSWER: c 7. In the case of “equal opportunity harassers” who harass both men and women, the courts tend to rule: a. for the harasser, because the harassment is not because of sex b. for the harasser, because harassment is not proven in that circumstance c. for the victim of the harassment, because the harassment is because of sex d. for the victim of the harassment, because harassment is proven generally ANSWER: a Copyright Cengage Learning. Powered by Cognero.

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Chapter 08: Harassment 8. In the case in which a woman ended her brief fling with a supervisor while on vacation, and was demoted when she rebuffed him, the appeals court ruled: a. to affirm the summary judgment ruling in favor of the male supervisor because no harassment was proven b. to reverse the summary judgment ruling in favor of the male supervisor because the woman raised issues of material fact c. to dismiss the case for failure to state a cause of action d. to reverse the summary judgment ruling in favor of the male supervisor because he was not the woman’s supervisor ANSWER: b 9. Regarding the “severe” or “pervasive” standard for assessing harassment cases, which of the following statements is NOT true? a. To prove harassment, the plaintiff must show that the conduct complained of was both severe and pervasive, unless it occurred outside work b. To prove harassment, the plaintiff must show that the conduct complained of was severe or pervasive c. The degree of severity required is in inverse proportion to its pervasiveness d. Successful hostile environment claims have involved actions that, viewed individually, were less severe, but in their totality were sufficiently severe or pervasive to be harassment.

ANSWER: a 10. Which of the following is true regarding the role of conduct outside of the workplace in harassment cases? a. Employers can be held liable based on harassing conduct that occurs outside of the workplace b. The sexual activities of persons who allege harassment will be examined in order to determine whether the treatment received was unwelcome c. The marital statuses of the plaintiff and the alleged harasser will be taken into account in determining whether harassment occurred d. All of these ANSWER: a 11. Which of the following statements is describing more accurately an employer’s vicarious liability for harassment? a. The employer automatically has an affirmative defense to vicarious liability when a hostile environment is created by a top official b. The employer automatically has an affirmative defense to vicarious liability when harassment by a coworker occurs c. The employer is vicariously liable when a supervisor creates a hostile environment, and the employer does not have a sexual harassment policy or complaint reporting procedure d. The employer is vicariously liable when a top official takes an adverse employment action against the employee ANSWER: c 12. Which of the following is part of the “affirmative defense” available to employers in certain hostile environment cases? a. The employer exercised reasonable care to prevent and correct promptly any harassment b. The employer knew or should have known about the harassment c. The employee took advantage of preventive or corrective measures provided by the employer d. The employee planned to create a harassment policy Copyright Cengage Learning. Powered by Cognero.

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Chapter 08: Harassment ANSWER: a 13. The primary difference between harassment that results in tangible employment action and harassment that creates a hostile working environment is: a. the level of proof required in the prima facie case for harassment that results in tangible employment action b. the availability of a rebuttal to the plaintiff if the employer proves a reason for the hostile environment c. the criteria for proving harassment that results in a tangible employment action is less stringent d. the criteria for finding employers liable differs depending on the outcome of the harassment ANSWER: d 14. Which of the following should be included in an employer’s policy prohibiting harassment? a. Assurance that employees reporting harassment will be transferred to a new position b. Assurance of complete, strict confidentiality in handling harassment complaints c. A clear and accessible procedure for reporting harassment d. A warning that harassment, if not proven, may result in the employee losing employment ANSWER: c 15. Regarding harassment, which of the following statements is NOT true? a. Harassment is a serious problem in the workplace b. The definition of harassment is contained in the federal Anti-Harassment Act c. The definition of harassment does not include workplace bullying d. Not every form of workplace bullying is legally actionable ANSWER: b 16. If an employee is subject to severe harassment, and quits his position to escape it, the court will likely rule: a. that because he quit, no tangible employment action can be proven b. that the quit is a constructive discharge, which constitutes a tangible employment action if it results from a demotion or pay cut c. that a hostile environment is presumed, but that the employee waived the right to sue when he left d. that the employer is automatically vicariously liable ANSWER: b 17. In a case in which the employee claimed harassment by her supervisor in which he altered her work hours with the knowledge that doing so would adversely affect her hypoglycemia; frequently stood at her desk and stared angrily at her; startled her by pounding on her desk with his fist; criticized her work unfairly; and yelled at her in front of co-workers, the court ruled that: a. no sexual harassment was proven, because no demand for sexual favors was made b. no sexual harassment was proven, because no hostile environment was created c. a hostile environment was created by the supervisor’s conduct d. no harassment could be proven without verbal or physical conduct of a sexual nature ANSWER: c 18. All harassment cases, the plaintiff must prove: a. the harassment was because of sex b. the harassment was directed toward a protected class Copyright Cengage Learning. Powered by Cognero.

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Chapter 08: Harassment c. the harassment was welcome d. the harassment created a hostile work environment ANSWER: b 19. When a female supervisor demands sexual favors from a male employee so that he can keep his job or get a raise, it is called this: a. same sex harassment b. quid pro quo harassment c. severe or pervasive harassment d. cruel and unusual harassment ANSWER: b 20. The Assistant Human Resources Manager has learned from another employee that a co-worker is being harassed by her supervisor. Assuming the firm has no anti-harassment policy, the Assistant Human Resources Manager should undertake all of these actions EXCEPT: a. do nothing unless the victim herself files a claim, because there is no anti-harassment policy, so you have no authority in the matter b. investigate the claim and report the harassment to your superiors c. create and enforce an anti-harassment policy for your firm d. offer to transfer the employee to another job ANSWER: a 21. Your co-worker, a new employee, is painfully shy. She works, as you do, as a clerical assistant to an architect in the firm you both work for. Her architect, a boorish male with a foul mouth and grabby hands, has had trouble keeping an assistant, and you know why. But even though this fellow has continued in his usual behavior, applying it now to her, she seems to be unable to decide what to do, and seeks your advice. Knowing how these cases are decided, what would be the best advice you could give her? a. She should say nothing; just keep working, and do a good job b. She should act friendly, but refuse his advances c. She should tell him she’s not interested, and just wants to work d. The next time he tries something, she should just punch him in the eye ANSWER: c 22. You are a salesperson for a pharmaceutical company, a job that was difficult to get. After you’d been there a while, there was another opening, and you recommended your friend, Paul. He was hired, and the two of you have enjoyed working together ever since. Recently, the secretary for the sales team has confided in you that Paul has been acting inappropriately, and most recently, cornered her in the supply room, and pushed her up against the wall with his body, and caressed her with his hands. She does not know that you recommended Paul to the firm. Of the following choices, what should you do? a. Tell her not to worry, that it will pass, because Paul is not normally like this b. Tell her not to worry, that you’ll talk to Paul, and tell him to stop it c. Tell her to report Paul to Human Resources, and you’ll tell them you saw it d. Talk to Paul, and tell him that if he doesn’t stop it immediately, and apologize, you will report him to Human Resources ANSWER: d Copyright Cengage Learning. Powered by Cognero.

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Chapter 08: Harassment 23. Imagine that you are the judge hearing a case for sexual harassment filed by a woman who reports that she was forced to have sex in the workplace with her supervisor. She admits that for some months prior to the event, she displayed her body through seminude photos, lifted her skirt to verify an absence of undergarments, made highly salacious comments, and offered sexual gratification “to employees, customers, and competitors alike.” Knowing what you know about harassment, what should you decide? a. For the woman, because the forced sex proves harassment b. For the woman, because her flirting did not justify the forced sex c. For the employer, because the harassment was not unwelcome d. For the employer, because she had a reputation for being “easy” ANSWER: c 24. A male customer of a sports bar has taken a particular liking to one of the waitresses, and always asks to be seated at her station, so that she will wait on him. He has spoken to the manager of the bar, and generously tipped him to insure that he will get her station. But the waitress does not want to wait on the customer, because he grabs and pinches her rear, tries to tuck money down her top, and frequently pulls her down onto his lap. She asks the bar manager not to let him sit at her station any more, but the manager tells her it’s good money (he does tip her well), and she should be nice to him. If she files suit for harassment, what will the court most likely rule? a. For the employer, because the customer does not have the power to affect her employment status, so that his conduct cannot result in a tangible employment action against her b. For the employer, because the customer has not committed harassment c. For the employee, because the customer has committed harassment d. For the employee, because the customer has committed harassment, the employer knew about it, and did nothing ANSWER: d Essay 25. Why is each of the following good legal advice? a. Employers are strongly advised to establish, communicate, and enforce policies prohibiting harassment. b. Complaint procedures should provide employees with multiple, accessible parties to whom reports of harassment can be made. c. Employers must respond to complaints of harassment promptly and in a manner reasonably calculated to end the harassment. d. Terminations or other discipline imposed against harassers must be conducted in the same careful manner as any other terminations or disciplinary actions. e. Care should be exercised in using transfers or reassignments to deal with harassment.

ANSWER: Answer a: Title VII, affirmative defense, negligence standard – Harassment is a major legal problem. Policies are not strictly required by the law, but a sound policy can help prevent harassment, ensure that it is dealt with properly, and limit employer liability. The absence of an effective policy will make the affirmative defense unavailable to employers and will likely result in a finding of negligence for co-worker harassment.

Answer b: Title VII – Employers cannot rely on defective policies with inadequate reporting procedures to claim lack of knowledge that harassment occurred. The Supreme Court has stressed that a procedure that requires reporting to the alleged harasser is inadequate.

Answer c: Title VII, affirmative defense, negligence standard – Employers have a clear legal obligation to protect their employees from harassment. An employer that fails to correct promptly any hostile environment harassment by supervisors will be vicariously liable. Employers that are negligent in failing to take prompt and effective action to end co-worker harassment will also be liable.

Answer d: Wrongful discharge, defamation – While a termination or other discipline might be called for, the desire to deal strongly with harassment should not lead employers to assume guilt and violate the rights of Copyright Cengage Learning. Powered by Cognero.

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Chapter 08: Harassment persons accused of harassment. False accusations that an employee engaged in harassment might be grounds for defamation claims.

Answer e: Title VII, retaliation – If the victim of the harassment is transferred to a less desirable position, a retaliation claim might be forthcoming. Likewise, simply transferring the harasser without additional measures might subject other employees to harassment.

26. How does employer liability for harassment by a co-worker or third party compare or differ with the company’s liability for harassment by supervisors, managers, or other top officials?

ANSWER: Co-workers and third parties such as customers do not wield the same power over an employee as does a supervisor, manager or top official because they cannot create or enforce a tangible employment action adverse to the employee. Nevertheless, they can create a hostile work environment. The employer will be liable for harassment by co-workers or third parties if the complaining party can prove that (1) the employer knew or should have known about the harassment; and (2) the employer failed to take prompt and effective action to stop the harassment.

Harassment by supervisors, managers, or top officials creates additional problems because superiors usually have the ability to cause the employee to suffer a tangible employment action such as loss of a promotion, reduction in salary, or even loss of employment. When a tangible employment action has occurred, and the victim can prove harassment, the employer will be liable. If no such tangible employment action has occurred, the employer can escape liability by asserting an affirmative defense if they can prove that (1) they (the employer) exercised reasonable care to prevent and correct any harassment promptly; and (2) that the complaining party failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm in some other way.

In both situations it is absolutely essential that the employer maintain and publish a reasonable and effective formal harassment reporting policy and strictly adhere to it.

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Chapter 09: Reasonably Accommodating Disability and Religion True / False 1. The Americans with Disabilities Act provides some examples of what constitutes "reasonable accommodations" for disability. a. True b. False ANSWER: True 2. The “reasonable accommodation” standard is the same for both disability and religion. a. True b. False ANSWER: False 3. Once a reasonable accommodation is made for a disabled employee, the employer has met its obligation for the duration of the person’s employment. a. True b. False ANSWER: False 4. In order to take advantage of the religious organization exemption, the religious organization must prove a BFOQ based on religion. As a general rule, employers will accept an employee’s stated religious beliefs and practices only when supported by a written statement by a member of the clergy. a. True b. False ANSWER: False Multiple Choice 5. The Americans with Disabilities Act (ADA): a. applies to private sector employers with 15 or more employees b. amends and supersedes the Rehabilitation Act c. protects all disabled persons against discrimination in employment by covered employers d. applies to federal government contractors ANSWER: a 6. Which of the following is necessary to establish the existence of a disability under the ADA? a. Having a physical basis for one’s impairment b. Being diagnosed with an impairment that is included on the ADA’s list of recognized disabilities c. Receiving regular medical treatment for one’s condition d. Having a physical or mental disability which affects at least one major life activity ANSWER: d 7. Regarding a perceived disability, it is correct to say that: a. people who are not disabled, but are erroneously regarded as being disabled, are protected by the ADA b. managers should not learn about any medical restrictions placed on their employees before making decisions about their suitability for employment opportunities Copyright Cengage Learning. Powered by Cognero.

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Chapter 09: Reasonably Accommodating Disability and Religion c. only people who are perceived as having a mental disability come under this category d. people who are regarded as disabled even though they are not, are not entitled to a reasonable accommodation ANSWER: a 8. The basic criteria for identifying the essential functions of a position are all of these EXCEPT: a. the position exists to perform this function b. few other employees are available to perform this function c. the function is highly specialized d. evidence from systematic studies of jobs to document the major tasks involved in successful job performance ANSWER: d 9. An employee is not disabled under the ADA if: a. she has an existing disability which substantially limits a major life activity b. she is erroneously regarded as being disabled c. she is not currently disabled, but has a record of a prior disability d. she has a disability which does not substantially limit a major life activity ANSWER: d 10. In order to be a “qualified individual with a disability,” a disabled person must: a. meet the same, job-related education, skill, and background requirements as other job candidates or employees b. not pose a direct threat to others but may pose a threat to his or her own health c. be able to satisfactorily perform all of the functions of a job d. not require a reasonable accommodation ANSWER: a 11. Under the ADA, it is important that job descriptions: a. clearly identify the essential functions of jobs b. clearly specify how job tasks are to be carried out c. list reasonable accommodations that are available to an employee in this job d. clearly identify the working conditions for this job ANSWER: a 12. Which of the following would usually be considered a reasonable accommodation of disability? a. Providing a part-time or modified work schedule b. Relaxing a production requirement c. Relaxing a performance standard d. Transferring essential job functions to others ANSWER: a 13. In responding to requests for reasonable accommodation, employers should NOT: a. engage in an interactive process with disabled employees b. engage in extensive medical inquiries to get information needed to assess functional limitations c. discuss the disabled employee’s need for accommodation with other employees d. identify reasonable accommodation as soon as possible, without interacting with the employee Copyright Cengage Learning. Powered by Cognero.

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Chapter 09: Reasonably Accommodating Disability and Religion ANSWER: a 14. In order to be substantially limiting, a condition must: a. render an employee unable to perform her previous job b. be chronic or expected to have a long-term impact on functioning c. without the aid of any corrective devices used by the employee, make it impossible to perform one or more major life activities d. require something more than eyeglasses or hearing aids ANSWER: b 15. Because of a physical disability, Marie requested a reasonable accommodation. To avoid implementing the request on undue hardship grounds, her employer must show that: a. the proposed accommodation would not be a reasonable one b. the cost of the accommodation exceeds the benefits it would produce c. the cost exceeds the general $2000 threshold specified in the ADA d. the proposed accommodation would disrupt the business ANSWER: d 16. Under Title VII, the concept of “religion” is: a. limited to membership in or affiliation with an established church or denomination b. applicable to beliefs or practices that a church or denomination requires of its members c. applicable to beliefs or practices centering on the worship of a God or other deity d. broadly interpreted ANSWER: d 17. As the new Human Resources Manager for Artists’ Tools main office, you are still getting to know your employees.

One in particular has come to your attention, because she always seems to be in a state of either euphoria or sleepiness.

Co-workers report to you that they have found her in the ladies room sniffing a white powder, and you conclude that she is probably using cocaine. After considering the matter, you decide that your best course of action would be: a. to confront the employee privately about this behavior, and unless she can explain it and produce a prescription, fire her for illegal drug use b. to confer with the employee, since she probably has a drug addiction, which is a disability under the Americans with Disabilities Act; you must decide whether you can make a reasonable accommodation c. to refer the employee to a drug rehab center for her drug addiction d. to propose a reasonable accommodation to the employee so that she can still perform her job while under the influence of drugs ANSWER: a 18. Which of the following laws applies to federal employees? a. The Disability Act b. The Protection of Major Life Activities Act c. The Americans with Disabilities Act d. The Rehabilitation Act ANSWER: d Copyright Cengage Learning. Powered by Cognero.

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Chapter 09: Reasonably Accommodating Disability and Religion 19. Which of the following is an element of a prima facie case of failure to reasonably accommodate religion? a. A specific reasonable accommodation was requested by the plaintiff b. A conflict exists between a sincere religious belief or practice and an employment requirement c. The requested accommodation would not impose undue hardship d. The employee has engaged in that religious belief or practice for at least 10 years ANSWER: b 20. Title VII’s religious organization exemption: a. requires religious organizations to establish BFOQs based on religion b. requires religious organizations to comply with all other antidiscrimination laws except for those regarding religion c. allows religious organizations to favor persons of the same faith for positions that have clear spiritual functions d. allows religious organizations to favor persons of the same faith for secular activities ANSWER: c 21. The local Presbyterian Church is seeking to hire an employee to create a website for the church. After a diligent search for qualified candidates, the Hiring Committed narrowed the search to two individuals. One is a Presbyterian, the other is a Muslim. Can the Church hire the Muslim candidate? a. No; because this is a Presbyterian Church, they must hire a Presbyterian. b. Yes; Title VII contains an exemption for religious bodies who hire for secular positions. c. Yes; Title VII is not relevant. Although most churches prefer to hire members of their own flock even for secular positions, there is no requirement to do so. d. No; because the Muslim candidate’s faith is incompatible with the teachings of Presbyterianism.

ANSWER: c 22. A clerical employee who has a special gift for languages is also disabled, and in a wheelchair. You have previously made his work area accessible, but he is now asking for a special accommodation—that you create a position for him in which he can use his language skills in translations, and not in clerical work. Which of the following statements is true? a. The request is a reasonable one, and you should try to accommodate it. b. The request is not a reasonable one, so you don’t have to accommodate it. c. There is no requirement under the ADA that an employer create a position for an employee who is disabled. d. The request is not reasonable because under the ADA an employee can ask for a special accommodation based only on one ground not two.

ANSWER: c 23. Regarding an employer’s obligation to accommodate disability and religion, it can be said that: a. the obligation to accommodate in these areas is consistent with the employer’s obligation to accommodate in other areas of the employment relationship b. the obligation to accommodate in the areas of disability and religion is unique to those areas of the employment relationship c. the obligation to accommodate is voluntary, except for federal employers d. both the obligation to accommodate in the areas of disability and religion are unique to those areas of the employment relationship and the obligation to accommodate is voluntary, except for federal employers only ANSWER: b Copyright Cengage Learning. Powered by Cognero.

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Chapter 09: Reasonably Accommodating Disability and Religion 24. As the Assistant Human Resources Manager, Brad has access to the employment files of all of the employees, including management. Brad has inadvertently learned that the Vice President of Sales has tested positive for the HIV virus. Brad knows that he is married, but doubt that he’s told his wife. What should Brad do? a. Call his wife, and tell her that you regret you must give her some bad news; then, simply tell her b. Call his wife, but ask to come and see her in person; this is not the sort of news that one should deliver by telephone c. Talk to the Human Resources Manager, and ask her advice d. Nothing ANSWER: d Essay 25. Discuss briefly what actions an employer must take when an employee request a special accommodation based on a physical disability.

ANSWER: Employers are required to provide reasonable accommodations for individuals with disabilities. A reasonable accommodation is a change or adjustment to a job or a work environment that enables a person with a disability to participate in the job application process or to perform the essential functions of the job.

Employers must identify and document the essential functions of jobs. This is best done through a job analysis, the results of which are used as the basis of a job description. The duty to reasonably accommodate does not apply when it imposes undue hardship. Employers bear the burden of showing that a proposed, reasonable accommodation would present significant difficulty or expense. Requests cannot be lightly dismissed without considering alternative sources of funding.

26. The ADA creates a protected class called “qualified individuals with disabilities.” Discuss what this phrase means and how one qualifies for protection.

ANSWER: Many people with disabilities are able to productively work and the ADA protects these individuals from being discriminated against. First, the individual must be disabled. This means that (1) they have a physical or mental impairment that substantially limits one or more major life functions; or (2) they have a record of impairment; or (3) they are regarded as having an impairment. After establishing that the individual is disabled, to be “qualified” requires that they show that they are able to perform the essential functions of the job. They are qualified even if they are unable to perform all of the job functions as long as the essential function can be properly accomplished. This may or may not entail the providing of accommodation on the part of the employer. If an accommodation is required, the accommodation must be a reasonable one and cannot cause the employer undue hardship. Finally, a person must show that they are not a direct danger to themselves or to others to be deemed qualified.

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Chapter 10: Work-Life Conflicts and Other Diversity Issues True / False 1. The escalator principle is a doctrine that permits employees absent under the FMLA to be promoted to the positions they would have obtained if not absent. a. True b. False ANSWER: False 2. Employers must refrain from making employment decisions based on the sexual orientation but not on the gender identity of employees. a. True b. False ANSWER: False 3. Under the FMLA, employees may choose to substitute available paid leave for unpaid FMLA leave. a. True b. False ANSWER: True 4. Under some circumstances, employers can refuse to restore key employees to their previous positions pursuant to the Family and Medical Leave Act. a. True b. False ANSWER: True Multiple Choice 5. To qualify for leave under the Family and Medical Leave Act (FMLA), an employee must have worked: a. at least 1250 hours during the previous 12 months b. at least 625 hours during the previous 6 months c. at least 2080 hours during the previous 12 months d. at least 1040 hours during the previous 6 months ANSWER: a 6. Which of the following is a “qualifying event” under the FMLA? a. Birth of a child b. Death of a parent c. Serious health condition of an employee’s grandparent d. Serious health condition of a fiancée ANSWER: a 7. “Serious health conditions” include: a. pregnancy b. all conditions that require hospitalization c. all conditions that require treatment by a health care provider Copyright Cengage Learning. Powered by Cognero.

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Chapter 10: Work-Life Conflicts and Other Diversity Issues d. all conditions that make a person unable to physically perform their job ANSWER: b 8. Under the FMLA, employers have the right to: a. require that employees provide documentation of any serious health condition prior to being granted leave b. cancel the leave of “key employees” c. delay the start of leave for employees who fail to provide 30 days’ notice when the need for leave is foreseeable d. terminate employees who fail to provide required documentation ANSWER: c 9. Under the FMLA, employees are entitled to: a. have all benefits maintained under the same conditions as if the employee had not taken leave b. have only health benefits maintained under the same conditions as if the employee had not taken leave c. be restored to the exact same position they left if they are deemed a “key employee” d. a minimum of ½ salary during their leave ANSWER: b 10. An employee who had taken periods of FMLA leave over a two-year period was terminated for poor attendance because of those absences. She brings suit under the FMLA. What should the court rule? a. The employer did not violate the FMLA because the employee was granted leave b. The employer did not violate the FMLA because she was terminated for her absences and not for having requested or taken FMLA leave c. The employer violated the FMLA because all employees become eligible for up to 12 weeks of leave at the start of each new calendar year; “rolling” calendars are illegal d. The employer violated the FMLA because the employee was terminated based on absences that qualified as FMLA leave ANSWER: d 11. Under the Pregnancy Discrimination Act (PDA): a. employers are required to provide leave for childbirth and medical problems related to pregnancy b. employers are required to restore employees returning from pregnancy leave to their former jobs or equivalent positions c. employers are prohibited from establishing uniform requirements for when pregnancy leave must begin or end d. employers are prohibited from restoring employees returning from pregnancy to their former jobs or equivalent positions ANSWER: c 12. Under the FMLA: a. employers may require that any paid leave available to an employee be used and counted toward an employee’s FMLA leave b. employers may require that the employee stay on leave longer than they need if it satisfies an administrative purpose or convenience for the employer c. employers may contact the employee at home by phone or e-mail with company issues, but cannot require the employee to physically come to the premises Copyright Cengage Learning. Powered by Cognero.

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Chapter 10: Work-Life Conflicts and Other Diversity Issues d. during a valid leave, the employee is protected or shielded from layoffs or termination that would have occurred anyway ANSWER: a 13. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires that: a. all persons returning from military service must be reemployed b. employers must attempt to reinstate persons returning from military service into the positions that they would have attained if the person has not served the military, including any promotions c. employers continue to provide at least partial pay to employees serving in the military for up to 24 months d. employers must place individuals returning from military service into the same positions there were when then left for military service ANSWER: b 14. Regarding the Pregnancy Discrimination Act, which of the following statements is true? a. The PDA requires that employers grant paid leave for childbirth b. The PDA has a significant influence on leave policies, especially because the FMLA applies only to employers with 50 or more employees c. The PDA requires that employers treat people with pregnancy-related conditions better than people with other medical conditions who are similar in their ability or inability to work d. The PDA requires that employers grant unpaid leave for childbirth ANSWER: b 15. Some legal protection against discrimination based on sexual orientation is found in: a. Title VII of the Civil Rights Act b. The U.S. Constitution and Title VII of the Civil Rights Act c. the U.S. Constitution d. Executive Order 11246 ANSWER: b 16. “Hopalong” Jones was a cowboy working on a cattle ranch out west. He has worked at the ranch for three years and done an excellent job. He is also a two-time state rodeochampion. He is fired when he admits to being a gay man. a. Hopalong is protected under the protected sex classification under Title VII b. Hopalong is not protected since heterosexuality is considered a BFOQ for ranch workers c. Hopalong is protected under the Uniformed Services Employment and Reemployment Rights Act d. Hopalong has no federal or state protection regarding his sexual orientation ANSWER: a 17. The EEOC’s guidelines hold that broad English-only rules applied at all times are: a. presumptively discriminatory b. presumptively non-discriminatory c. valid, if an employer can show a business necessity for a broad-cased, all-time ban on other languages d. invalid, because the employer can never show a business necessity for a broad-based, all-time ban on other languages ANSWER: a Copyright Cengage Learning. Powered by Cognero.

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Chapter 10: Work-Life Conflicts and Other Diversity Issues 18. The accent of an employee or job applicant can lawfully be taken into consideration when: a. the firm is using its affirmative action program to diversify its workforce b. few English-speaking applicants or employees are available c. communications are a significant part of the job in question, and the person’s accent substantially interferes with the ability to communicate d. communications are a significant part of the job in question, and the person’s accent interferes in some degree with the ability to communicate ANSWER: c 19. The federal Jury System Improvements Act: a. protects persons who serve on federal juries from discharge, intimidation, or coercion by their employers because of their jury service b. applies a Title VII approach to the selection of jurors c. reduces the number of jurors on a standard jury from 12 to 6 d. requires that employers pay their employees at their regular rate of pay for the time spent serving on a federal jury ANSWER: a 20. Under the FMLA: a. pregnancy is a “serious health condition” triggering the right to FMLA leave b. pregnancy is not a “serious health condition” triggering the right to FMLA leave unless there are complications c. only a pregnant employee may receive leave under the FMLA d. pregnancy is a unique category of disability for employers ANSWER: b 21. The Uniformed Services Employment and Reemployment Rights Act (USERRA) DOES NOT require that: a. an employer must maintain the health insurance for an employee reporting to military service for short stints of service (less than 31 days) b. an employer must maintain the health insurance for an employee who serves in the military for up to 24 months, if the employee pays the full cost of group coverage c. an employer maintain health insurance coverage for their employees in military service beyond a period of 30 days d. all of these ANSWER: c 22. In the event of a serious injury or illness of a service member incurred while on active duty, the maximum period of leave under the FMLA during a 12-month period is: a. six weeks b. twelve weeks c. twenty weeks d. twenty-six weeks ANSWER: d

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Chapter 10: Work-Life Conflicts and Other Diversity Issues 23. You need to hire a new medical technician for the emergency room of your hospital. The technician must have a thorough knowledge of medical terms and procedures, and will be interviewing patients to determine the nature and extent of their problems before they are routed to a doctor or to the waiting room. Most of the qualified candidates will be those who come from Asian countries, who have studied medicine in their home countries, but whose MD degrees are not recognized by the U.S. Can you require that only English-speaking candidates need apply? a. Yes, because most of the patients will be English speaking b. Yes, because communication will be an integral part of the job, and most often communication will be required in an emergency situation c. No, because under Title VII, English-only speaking requirements are presumptively discriminatory d. No, because most of the qualified candidates will be from countries for which the first language spoken is not English ANSWER: b 24. A very troublesome employee has just told you that he wants to apply for FMLA leave because his wife is seriously ill. He has taken leave before because of her illness, and depending upon how you calculate it, may have already taken the maximum amount for the year. You know that if you use a “rolling 12-month period,” he will not qualify, and if he is denied leave, he may actually quit, which would make many people happy. However, your firm’s leave policy does not specify how leave taken will be calculated, which means that if he sued and the case went to litigation, the court would apply a “calendar year” calculation for the leave requested, since you’ve just begun a new calendar year, and under that calculation, he would be entitled the leave. Of the following choices, what should you do? a. Deny the leave, and take your chances; tell him that he’s already had the maximum leave under the “rolling 12-month” calculation. He’s been far too troublesome for the firm, and his leaving would be a good outcome. b. Deny the leave, but tell him that it’s because has not been a productive employee, and when he improves, you’ll consider more leave. c. Grant the leave, and take your chances; maybe he’ll straighten out when he comes back. d. Grant the leave, and ask how he’s doing; tell him that when he comes back, you’d like to sit down with him and see if you can help him resolve the trouble he’s been having at work.

ANSWER: d Essay 25. Discuss briefly what are the duties of employers in relation to FMLA leaves.

ANSWER: The leave provided for by the FMLA is mandatory. Attempts to discourage employees or get them to put off leave constitutes illegal interference with the exercise of FMLA rights. However, employees are expected to consult with their employers prior to leave for foreseeable, planned medical treatments, and attempt to minimize the disruptiveness of the leave. Employers are responsible for designating leave as FMLA leave.

Employees should be notified promptly and in writing whether their leave qualifies as FMLA leave. The notification should also specify the rights and responsibilities of leave takers, and the consequences of failing to do things like providing medical documentation. “No fault” attendance policies must be either discontinued or exceptions must be made for employees on FMLA leave.

26. A major university has advertised for a non-research lecturer position in its Economics Department. When they evaluate the applicants, one resumé clearly stands out as excellently qualified. When the applicant came in for an interview, she is asked to complete a questionnaire with a number of open ended questions prior to the actual interview.

The questionnaire was extremely well answered and evidenced perfect grammar, perfect penmanship, and perfect spelling. The answers were lucid and well thought out. Unfortunately, during the interview most in the department had trouble understanding the candidate due to her extremely heavy Nigerian accent. If the university hires someone else, has the university violated any discrimination laws?

ANSWER: The university must take into account the ability of its classroom teachers to communicate with students and Copyright Cengage Learning. Powered by Cognero.

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Chapter 10: Work-Life Conflicts and Other Diversity Issues other faculty. If the university establishes that the ability to communicate and be understood is an essential job requirement, and if its decision is based purely on the applicant’s ability to communicate and be understood, they have violated no laws. They must however clearly document and be prepared to defend they position.

There may certainly be a question regarding discrimination based on national origin and perhaps even race or sex, however, if the communication issue is truly the sole reason for refusal and this can be proven, the university is free from liability.

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Chapter 11: Wages, Hours, and Pay Equity True / False 1. The Fair Labor Standards Act (FLSA) governs the minimum wage across the country and preempts state and local laws. a. True b. False ANSWER: False 2. Under the Fair Labor Standards Act (FLSA), a “salary” is a prespecified sum that an employee is paid for discharging the responsibilities associated with a position. a. True b. False ANSWER: True 3. Compensable time is not easy to calculate under the FLSA, given the variety of compensation types, and the down and wait times on many jobs. a. True b. False ANSWER: True 4. The most significant FLSA exemptions are those for white-collar workers, namely, executive, administrative, and professional. a. True b. False ANSWER: True Multiple Choice 5. Which of the following is true regarding overtime pay under the Fair Labor Standards Act? a. Employees who work more than 8 hours in a work day must be compensated with overtime pay b. Employees are entitled to twice their regular rate of pay for overtime hours c. Private sector employers can pay for overtime required under the FLSA with compensatory time off in the future, whereas government agencies may not do so d. Government agencies can pay for overtime required under the FLSA with compensatory time off in the future, whereas private employers may not do so ANSWER: d 6. “Tipped employees” can be paid less than the minimum wage provided: a. they agree to a reduced minimum wage salary, however, if they don’t agree they must be paid the full minimum wage and any tips are forfeited to the employer or the other employees b. they retain on an individual basis all tips that are earned; pooling of tips is not permitted c. their total pay in wages and tips equals at least the minimum wage d. the employee customarily and regularly receives at least $30 per week in tips ANSWER: c 7. The maximum number of hours that an employee can work in a workweek under the Fair Labor Standards Act is: Copyright Cengage Learning. Powered by Cognero.

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Chapter 11: Wages, Hours, and Pay Equity a. not limited for employees 16 years of age and over b. limited to 40 hours per week for employees under 16 years of age while school is in session c. not limited for employees 16 years and over, but it must equal no more than 40 hours a week when averaged across any two work weeks d. limited to 50 hours per week for employees who are non-exempt, but there is no limit for exempt managers and professionals ANSWER: a 8. Under the Fair Labor Standards Act, a “workweek”: a. is any fixed and reccurring period of 5 consecutive days b. is any fixed and reccurring period of 7 consecutive days c. is the same as a calendar week d. includes all the days during a calendar week on which any work is performed ANSWER: b 9. The usual pay of a non-exempt employee at a local warehouse is $800/wk., based on a 40/hr. week. What is their weekly pay if they work 50/hrs.? a. $800 b. $900 c. $1000 d. $1100 ANSWER: d 10. Which of the following is true regarding compensatory (“comp”) time? a. Employers cannot require employees to use up their accrued comp time if employees do not wish to do so b. The maximum amount of comp time that can be banked is capped at 40 hours for most employees c. Hours in excess of banked comp time must be paid for in cash d. Private employers can pay for overtime required under the FLSA with compensatory time off in the future ANSWER: c 11. Pay secrecy policies cause all of the following problems EXCEPT: a. they make it difficult for people to know whether they are discriminated against in the matter of pay b. they make it difficult for coworkers to discuss the terms and conditions of employment c. they may violate the NLRA d. they may violate the FLSA ANSWER: d 12. Which of the following is generally compensable time under the FLSA? a. meetings during work hours concerning employee grievances b. meal periods of any length c. periods spent waiting to start work d. time spent traveling to and from work in a private car ANSWER: a Copyright Cengage Learning. Powered by Cognero.

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Chapter 11: Wages, Hours, and Pay Equity 13. Franz was hired as a seasonal agricultural worker in a farm in Montana. Under which of the following right does the Migrant and Seasonal Protection Worker Act (MSPA) confer to Franz? a. A minimum wage b. Health insurance c. Safe and sanitary housing and transportation d. Paid overtime ANSWER: c 14. The Migrant and Seasonal Agricultural Worker Protection Act requires: a. that migrant agricultural workers must be paid no less than the prevailing wage for farm laborers in the geographic region b. that migrant agricultural workers must be provided with housing and the housing must be safe and sanitary c. that migrant agricultural workers must receive overtime pay of one and a half times their regular rate of pay for all work hours in excess of 50 in a week d. none of these ANSWER: d 15. Which of the following activities is compensable time for which an employee must be paid? a. time spent taking pre-employment tests b. time spent traveling to and from work c. time spent waiting to start work d. rest periods of up to 20 minutes ANSWER: d 16. Under the duties test, in order to be classified as exempt, an employee: a. must perform the duties of an executive, administrator, or professional b. must work in an office setting c. must have a job title that includes the word executive, administrator, or professional in the title d. must earn at least $550/week ANSWER: a 17. Under the Department of Labor’s “pay docking rule” which of the following statements is correct? a. Wages withheld for disciplinary purposes are not counted as compensation when determining compliance with minimum wage and overtime requirements b. It is a violation of the FLSA for employers to make deductions from the pay of salaried employees for partial day absences c. Certain deductions from the pay of salaried employees can lead to the finding that these employees are nonexempt d. Employers may reduce pay for partial-day absences for personal reasons, and for time missed due to jury duty ANSWER: c 18. Amber is 15 years of age. She has to earn a bit of money so that she can purchase a car when she turns 16. Under the FLSA, Amber a. is allowed to work at any job provided that she has obtained working papers b. is allowed to work no more than 18 hours per week while school is in session Copyright Cengage Learning. Powered by Cognero.

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Chapter 11: Wages, Hours, and Pay Equity c. is allowed to work no more than 8 hours per day while school is in session d. is not allowed to work unless she has a cumulative GPA of B or better ANSWER: b 19. Which of the following is among the things that must be shown in order for two jobs to be considered “equal work?” a. They must have the same or very similar job titles b. The jobs must be of comparable worth to the employer c. There must be substantial overlap in the duties and tasks performed d. They must have the same or very similar pay rates ANSWER: c 20. If employees come in to start work early, or stay beyond scheduled hours, or come in to work on days off, a. the extra time put in on the job could be used to re-classify those employees from non-exempt to exempt b. the extra time put in on the job could qualify those employees for overtime pay c. under the FLSA, they have volunteered their services for that extra time d. the FLSA requires that they receive a raise ANSWER: b 21. For which of these following reasons are employers required to maintain accurate and up-to-date job descriptions? a. To ensure compliance with the pay docking rule b. To establish the exempt status of the employee c. To ensure compliance with the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) that establishes that an employment requirement is job-related d. To account for the lesser flexibility they have in assigning tasks to employees who are minors ANSWER: b 22. Which of the following statements is NOT true? a. Employers should establish clear procedures for employees to report and request pay for extra work performed b. Employers should not dock the pay of non-exempt employees c. Employers should provide equal pay for substantially similar jobs done by men and women d. Employers should permit employees to work overtime without permission whenever they feel it is necessary ANSWER: d 23. Identify the examples of non-compensable time: a. rest periods of twenty minutes or less b. traveling from home to work site c. employer-required training d. restrictive on-call arrangements ANSWER: b 24. Which of the following a plaintiff is not required to show in a prima facie case of pay discrimination under the Equal Pay Act? a. There is one or more persons of the opposite sex working in the same establishment b. The comparator receives a higher rate of pay Copyright Cengage Learning. Powered by Cognero.

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Chapter 11: Wages, Hours, and Pay Equity c. The comparator performs work substantially equal to that performed by the plaintiff d. The pay difference is not justified by a difference in performance between the comparator and the plaintiff ANSWER: a Essay 25. Discuss the goals of the Equal Pay Act and what a plaintiff must prove in order to establish a prima facie case of pay discrimination under the Equal Pay Act. ANSWER: The Equal Pay Act promotes fair pay by prohibiting pay discrimination based on sex. Employers are prohibited from paying an employee of one sex at a lower rate of pay than an employee of the opposite sex when those employees perform substantially equal work in the same establishment. To establish a prima facie case of pay discrimination under the Equal Pay Act, an employee must identify one or more comparators of the opposite sex who work in the same establishment and earn a higher rate of pay for performing substantially equal work. To be substantially equal, jobs must have a significant number of overlapping duties; require substantially equal skill, effort, and responsibility; and be carried out under similar working conditions.

If a prima facie case is established, an employer can defend the pay discrimination claim by showing that the pay differential was due to a seniority system, a merit pay system, a system of compensation based on the quantity or quality of production, or any factor other than sex.

26. An employer of an emergency response service required its service employees to be on call every weekend, as they might be called to report within 10 minutes. While on call, employees were not permitted to leave their homes, as the employer’s contact was to their home phones. Also, employees were not permitted to drink alcohol on the weekends, because of their potential on-call duties. The employer did not pay for on-call weekends, and the employees sued. What are the issues, and what should the court decide?

ANSWER: The primary issues are whether the time spent waiting for weekend calls is compensable, and if so, whether that additional time results in overtime pay being due. Compensation is generally due when time spent is “primarily for the benefit of the employer.” In this case, employees must stay at home, so that they can respond within 10 minutes, and are not free to drink alcohol. These requirements greatly restrict their weekend activities. This weekend time spent waiting for a call from the employer is primarily for the benefit of the employer, as the court is likely to decide, and should be compensable time. In addition, this is a significant amount of time each week to add to an employee’s compensable time, which makes it more likely that overtime will be due, at time and one half of the employees’ normal wages.

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Chapter 12: Benefits True / False 1. Employers must provide benefits in the form of basic health insurance, paid vacation, and pensions. a. True b. False ANSWER: False 2. The Employee Retirement Income Security Act (ERISA) preempts state laws even remotely relating to the regulation of benefit plans. a. True b. False ANSWER: True 3. Pursuant to ERISA, a plan administrator under a fiduciary duty is required to act in the best interests of the employer. a. True b. False ANSWER: False 4. In ERISA’s anti-cutback rule, employers are prohibited from making changes to pension plans that reduce pension benefits already accrued by employees. a. True b. False ANSWER: True Multiple Choice 5. Which of the following is a benefit that is included in ERISA? a. Premium pay for overtime b. Scholarship or tuition reimbursement plans c. Severance pay plan d. Plans providing retirement income to employees ANSWER: d 6. Summary plan descriptions (SPDs): a. must be provided to new employees before they begin their employment b. provide a brief overview of the terms of employee benefit plans c. can be the basis for claims that employees did not receive promised benefits d. are not required by ERISA ANSWER: c 7. Regarding the Pension Benefit Guarantee Corporation (PBGC), which of the following statements is true? a. The PBGC is an agency that insures undefined pension plans. b. The PBGC is an agency that insures defined contribution pension plans. c. The PBGC's fund is running out of money, due to the increase in the failure of the pension plans it insures. d. The PBGC has run out of money and has been disbanded Copyright Cengage Learning. Powered by Cognero.

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Chapter 12: Benefits ANSWER: c 8. Which of the following is a fiduciary duty under ERISA? a. Ensuring that plans operate in accordance with plan documents and ERISA b. Maintaining the firm’s stock in the pension fund assets to minimize the risk of large losses c. Managing benefit plans and funds solely in the interest of the plan employer d. Keeping benefit plan costs as low as possible ANSWER: a 9. If a denial-of-benefits case under ERISA ends up in court, which standard of review will courts typically apply? a. Strict scrutiny b. Patently unreasonable c. Abuse of discretion d. Clear and convincing evidence violation ANSWER: c 10. Which of the following is true regarding vesting requirements under ERISA? a. Once pension rights vest, employees are entitled to receive full pensions upon leaving employment b. Once pension rights vest, employees’ pension plans cannot be discontinued or changed c. Vesting usually occurs after five or seven years of service d. Vesting is never required but is purely a contractual provision negotiated between the employer and employee ANSWER: c 11. Which of the following is true of the Employee Retirement Income Security Act (ERISA)? a. It requires employers to provide pensions for most of their employees b. It is superseded by state laws that relate to employee benefit plans c. It does not apply to benefit plans administered by public employers d. It requires that once a plan is in place, it cannot be changed or modified without the employees’ consent ANSWER: c 12. Defined contribution pension plans: a. are insured by the Pension Benefit Guaranty Corporation (PBGC) b. guarantee specific pension benefits to the employee on retirement c. are insured by ERISA d. guarantee specific pension benefits to the employee when the plan is entered into ANSWER: b 13. The Patient Protection and Affordable Care Act was challenged in a lawsuit alleging that the federal government exceeded its authority under the constitution by requiring that people buy health insurance. The case went to the U.S. Supreme Court, which ruled: a. striking down the law, on the basis that the federal government had violated the commerce clause b. striking down the law, on the grounds that nothing in the Constitution authorized the law c. upholding the law as valid, on the grounds that it did not violate the commerce clause d. upholding the law as valid, on the grounds that it constituted a tax on the lack of health insurance Copyright Cengage Learning. Powered by Cognero.

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Chapter 12: Benefits ANSWER: d 14. Which of the following is a qualifying event necessitating an offer of Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation coverage? a. An employee is reprimanded b. An employee leaves on vacation c. An employee adopts a child d. An employee quits his job ANSWER: d 15. An employee is terminated for poor attendance. The employer sends a letter on May 1 notifying him of his right to receive continuation health insurance coverage. The letter states that the former employee must respond by May 30 to be eligible for up to 6 months of continuation coverage. The employer’s letter: a. accurately states the former employee’s rights under COBRA b. should state that the employee has 45 days to decide on coverage that would last up to 3 years c. should state that the employee has 60 days to decide on coverage that would last up to 3 years d. should state that the employee has 60 days to decide on coverage that would last up to 18 months ANSWER: d 16. The Mental Health Parity and Addiction Equity Act requires: a. that employers include mental health conditions in their health insurance coverage b. that employers include addiction in their health insurance coverage c. that if employers include mental health conditions in their health insurance coverage, they must do so at the same level and under the same terms as medical and surgical treatments d. that employers treat employees with mental health difficulties the same as those with addiction problems ANSWER: c 17. Identify the correct statement regarding the Patient Protection and Affordable Care Act. a. Health plans are not required to cover immunizations and other preventive care services, both employment and tax laws affect employment benefits b. Preexisting condition exclusions are permitted c. Health plans that offer family coverage are required to cover dependent children until they reach the age of 26 d. Health plans can apply waiting periods up to 6 months ANSWER: c 18. Which of the following statements is correct regarding the Pregnancy Discrimination Act? a. Health plans must cover expenses for pregnancy-related medical care on the same basis as for other medical conditions b. Because of the extreme costs and because men do not avail themselves of pregnancy benefits, larger deductibles or co-pays may be charged c. Only married employees must be covered d. The spouses of male employees may receive better coverage than that with is provided for the spouses of female employees ANSWER: a Copyright Cengage Learning. Powered by Cognero.

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Chapter 12: Benefits 19. Regarding employment benefits, the general rule is that: a. employers are legally required to provide employment benefits in the form of basic health care, vacation pay, and pension or profit sharing plans b. employers are legally required to provide basic health care, but no other benefits, although they may do so voluntarily c. only employers with 50 or more employees are legally required to provide basic health care, but no other benefits, although they may do so voluntarily d. employers are not legally required to provide health care or pension plans ANSWER: d 20. An employee whose wife suffered from breast cancer was terminated after a change of ownership of the company. He asked whether their health insurance would continue, and was told verbally that it would. Nine months later when his wife sought treatment, she was advised the policy had been terminated. He and his wife sued for a violation of COBRA. The court should rule: a. for the employer, since it was a new owner, and not the employer of the employee b. for the employer, since the employee never requested in writing that their insurance be continued c. for the employee, since he was not given notice of his COBRA rights in writing d. for the employee’s wife, because she was also an insured, but was given no notice of her COBRA rights ANSWER: d 21. An employee filed for disability benefits due to a recent injury. Not knowing about a disability policy through this firm, the newly hired Human Resources Manager searches the files and discovers that the firm cancelled a long term disability on the employee without notifying him. What should the Human Resources Manager do? a. Nothing; maybe the employee will withdraw his claim for disability benefits b. Send official notice that the disability policy had previously been cancelled c. Reject the request for benefits without explaining why d. Reinstate the benefits ANSWER: b 22. About ERISA, the Employee Retirement Income Security Act, it is correct to say that: a. the law governs only pension plans b. the law governs benefit plans broadly, not just pension plans c. the law only applies to “welfare” plans d. the law governs all benefits plans expect for pension plans ANSWER: b 23. An employee would likely prefer this kind of pension plan: a. A defined benefit plan b. A defined contribution plan c. A hybrid plan d. A flexible account plan ANSWER: a 24. HIPAA, the Health Insurance Portability and Accountability Act, provides all of these EXCEPT: a. it greatly restricts the use of the preexisting exclusion Copyright Cengage Learning. Powered by Cognero.

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Chapter 12: Benefits b. it provides that exclusionary periods can be no longer than 30 days c. it provides that pregnancy cannot be deemed a preexisting condition d. it provides that a certificate of creditable coverage reduces the exclusionary time period for a preexisting condition ANSWER: b Essay 25. Discuss what benefit plans fall under ERISA, the employer’s duties to communicate these benefits to employees, and the role of plan administrators in denial of benefits.

ANSWER: ERISA covers plans that defer income for retirement (pension plans) as well as a host of other benefits such as health insurance, disability insurance, and severance pay (welfare plans). Under ERISA, employers must provide reports and other information to employees about their benefits, ensure that promised benefits are actually provided, establish reasonable claims and appeals procedures, manage plans wisely and solely in the interest of beneficiaries, and refrain from interfering with or retaliating against plan participants. The law places a premium on informing employees about their benefits. SPDs and other written plan documents take precedence over oral representations. In denying benefits, plan administrators must base their decisions about eligibility for benefits on plan documents, have reasons for their decisions, and use all of the current, relevant information available to them.

Decisions that are arbitrary and capricious are likely unlawful.

26. Health insurance is the most important type of welfare plan covered by ERISA. Discuss whether you agree with this statement referencing the main provisions in ERISA. ANSWER: Lack of health insurance, inadequate coverage, and the high cost of coverage have long been concerns of policy makers. The Patient Protection and Affordable Care Act (PPACA) is a complex statute intended to address these problems. It does so largely by expanding eligibility for Medicaid and subsidizing individual (and small employer) plans. Employer-sponsored group health insurance plans are subject to important requirements under the PPACA, such as covering dependents until age 26 and not excluding persons from coverage based on preexisting conditions. COBRA is another important law affecting employer-sponsored group health plans. It requires that employers provide the option of continuation coverage when certain qualifying events occur that would otherwise cause coverage to be lost (for the employee or other beneficiaries). These qualifying events include termination for reasons other than gross misconduct, reduction in hours, legal separation or divorce, death of a covered employee, entitlement of a covered employee to Medicare, and loss of dependent child status by a beneficiary.

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Chapter 13: Unions and Collective Bargaining True / False 1. The only role that unions play in the workplace is to negotiate labor agreements on behalf of employees. a. True b. False ANSWER: False 2. Supervisors and managers are not covered by the protections of the National Labor Relations Act. a. True b. False ANSWER: True 3. The NLRA prohibits employers from disciplining or discharging employees engaging in protected activity. a. True b. False ANSWER: True 4. To be part of the same bargaining unit, employees must have sufficient community of interests and similar skill sets. a. True b. False ANSWER: True Multiple Choice 5. Which of the following is the agency responsible for administering and enforcing the National Labor Relations Act? a. Federal Mediation and Conciliation Service (FMCS) b. Federal Labor Relations Authority (FLRA) c. National Labor Relations Board (NLRB) d. National Mediation Board (NMB) ANSWER: c 6. Which of the following is not a fundamental right conferred on employees by the National Labor Relations Act (“Sec. 7 rights”)? a. The right to self-organization b. The right to fair pay and benefits c. The right to strike d. The right to assist labor unions ANSWER: b 7. Protected concerted activities: a. are engaged in with or on the authority of other employees b. must be related to wages, hours, terms or conditions of employment c. must not be extreme or abusive d. apply to unionized workers but not to non-unionized workers ANSWER: d Copyright Cengage Learning. Powered by Cognero.

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Chapter 13: Unions and Collective Bargaining 8. Which of the following is an unfair labor practice (ULP) under the National Labor Relations Act? a. Discriminating against an employee based on her race b. Violating the terms of a labor agreement c. Retaliating against an employee who has filed charges with the NLRB d. After an agreement has expired and while the new one is being negotiated, locking out employees willing to continue working ANSWER: c 9. Which of the following employee rights is protected by the NLRA? a. to engage in self-promotion b. to go on strike c. to apply for a leave of absence d. to privacy ANSWER: b 10. In DirecTV v. NLRB, 26 service technicians were fired after appearing on a television news show to complain about their employer’s instructions about how to persuade customers to install phone connections for their satellite television service, and the chargebacks to employees’ pay if they did not procure such connections. Phone connections were not necessary for the service to work, but the company earned more money if phone connections were installed. Regarding the terminations, the court ruled: a. for the employer, since it is not a protected concerted activity for an employee to make disparaging remarks to 3rd parties, since it shows disloyalty b. for the employer, because its business policies were within its discretion c. for the employees, because they did not speak disparagingly about their employer d. for the employees, because although they spoke disparagingly about their employer, it was substantially truthful, and concerned an ongoing labor dispute ANSWER: d 11. Which of the following would NOT be considered a concerted activity? a. Employees who are members of a union that meet to discuss problems with working conditions at their workplace b. Employees who are not members of a union that meet to discuss problems with working conditions at their workplace c. A single employee that writes to a supervisor complaining about the refusal to grant her vacation time for the exact period of time she requested d. A single employee that writes to a supervisor complaining about the frequently malfunctioning air conditioning and extreme indoor heat at an assembly plant ANSWER: c 12. An employer announced that it was going to close a union facility, and entered into negotiations with the union. Six drivers learned of an upcoming meeting, met over coffee to formulate their questions, and went to the site of the meeting.

A union official told them to return to work, but the drivers insisted, and eventually were able to introduce themselves to the management representatives. They returned to work after having been gone for 3 hours but were fired for being absent without authorization. Was this termination legal under the NLRA? What should the NLRB decide? a. For the employer, since the employees essentially walked off the job during working hours without Copyright Cengage Learning. Powered by Cognero.

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Chapter 13: Unions and Collective Bargaining authorization, which is not a protected concerted activity b. For the employer, since its representatives had met with the employees, so they had complied with their obligations c. For the drivers, since they had a right under the NLRA to engage in protected concerted activity d. For the drivers, because although they were able to introduce themselves to the management representatives, no actual discussion or negotiation took place ANSWER: a 13. Non-employee organizers: a. have no rights under the NLRA and can be barred from entering workplaces b. must be allowed to speak with employees during non-work times and in non-work areas c. must be allowed into workplaces if the majority of employees desire their presence d. can be barred from workplaces if a valid non-solicitation policy is in place and other reasonable means of communication exist ANSWER: d 14. Which of the following is a criterion used by the NLRB to determine that an appropriate bargaining unit exists? a. The percentage of employees who have signed authorization cards b. Whether employees are paid at the same rate and/or under a reasonable and logical pay scale c. Whether professional employees would be mixed with non-professional employees against their will d. The percentage of employees in the unit as compared with the whole number of employees ANSWER: c 15. Which of the following is true regarding NLRB representation election procedures? a. The NLRB will not order an election unless at least 50 percent of employees have signed authorization cards b. No more than two elections will be held in the same year for the same group of employees c. If an employer commits an unfair labor practice within the week before an election is held, the NLRB will certify the union, regardless of whether it receives a majority of votes d. If an election is ordered, the employer is required to provide the NLRB, within seven days, a list of names and addresses of all employees in the bargaining unit ANSWER: d 16. Which of the following is true regarding grievances? a. They can be filed by individual employees and may be pursued by the individual with notice to the union b. They can only be filed by the union on behalf of the individual c. If the grievance cannot be resolved, either the union or the individual can decide to take the case to arbitration d. If the grievance cannot be resolved, either the union or the individual can decide to take the case to mediation ANSWER: a 17. Union security provisions: a. are unlawful under the NLRA because they require employers to discriminate against employees who do not support their unions b. are unlawful in states that have “right to work” laws c. require that employers recognize and negotiate with the unions chosen by their employees d. require that employees financially support all union activities, regardless of any objections the employees Copyright Cengage Learning. Powered by Cognero.

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Chapter 13: Unions and Collective Bargaining might have for doing so ANSWER: b 18. The duty to bargain in good faith: a. requires both employers and unions to eventually reach agreement in their negotiations b. requires that any issue raised by either the employer or union must be negotiated c. requires that employers make certain concessions to unions when negotiations stall d. requires both employers and unions to make a genuine effort to reach agreement ANSWER: d 19. Under the NLRA, employees who go on strike: a. can be terminated, but only after they are given an adequate opportunity to return to work b. can be terminated, but only if the strike is an economic strike c. can be permanently replaced, but only if the strike is an unfair labor practice strike d. cannot be terminated for going on strike ANSWER: d 20. Protection of concerted activity may be lost if which of the following occurs? a. Insubordination that is grounds for discharge b. The number of employees is reduced so that the NLRA no longer applies c. A serious disagreement between labor and management d. An employee speaks disparagingly of the employer ANSWER: a 21. Which of the following is an unfair labor practice? a. Picketing for more than 15 days b. Secondary boycotts c. Lockout of employees d. Going on a strike ANSWER: b 22. You have just been hired as the new Assistant Human Resources Manager at your firm, having worked your way up from the factory floor to the administrative suite. During your briefing for the new job, you are told that the firm has learned that its employees are attempting to unionize, a move which the firm has vowed to fight. As part of that effort, your boss, the HR Manager, has asked you to privately talk to some of your former co-workers on the factory floor to see what their thinking is, to learn about how many are in favor of unionizing, and who specifically are supporting it, and what might make them change their minds. Among the things they want to know is what would work better—threats of reprisals against those supporting a union or promises of benefits to those who oppose it. Of the following choices, which is your best option? a. Do as they ask; none of it is illegal b. Tell them you can’t do what they ask because it is illegal c. Tell them you would be glad to talk informally with your former co-workers to find out their attitudes about unionization and why this has come up, but that speaking about reprisals and benefits would be an unfair labor practice d. Tell them you would be glad to talk informally with your former co-workers to find out their attitudes about Copyright Cengage Learning. Powered by Cognero.

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Chapter 13: Unions and Collective Bargaining unionization and why this has come up, and that speaking benefits would be acceptable, while discussing reprisals and an unfair labor practice ANSWER: c 23. Which of the following factors is relevant to a determination of an “appropriate bargaining unit?” a. similarity of educational achievements b. interrelationship of tasks c. common benefits d. common salaries ANSWER: b 24. Regarding representation election procedures, which of the following statements is true? a. At least 50% of the employees in a bargaining unit must sign authorization cards b. An employer may recognize a union only if at least 50% of the employees in a bargaining unit have signed authorization cards c. If an election is ordered, the employer must provide to the union names and addresses of employees within 2 days d. The time between when an election is ordered and when it takes place is the time of least scrutiny of the activities of the employer and the union ANSWER: c Essay 25. Discuss which activities by employers are prohibited under the NLRA. ANSWER: The NLRA labels certain employers’ actions as unfair labor practices. Unfair labor practices are prohibited. It is an employer unfair labor practice to dominate or interfere with the formation or administration of a labor organization. Another unfair labor practice is discriminating against employees for the purpose of encouraging or discouraging membership in labor organizations. In these cases, the NLRB must establish a prima facie case that an employee’s protected conduct was the motivation for a discharge or other adverse employment decision. Finally, private-sector employers must bargain in good faith with the union(s) representing their employees and cannot fire employees for going on strike.

26. Explain how bargaining units are determined and the legal significance of this determination.

ANSWER: Bargaining units are critical to the election of representatives. It determines which employees are able to vote.

It is the duty of the NLRB to ensure that the group of employees for which representation is being sought constitute an appropriate bargaining unit. This determination is very important. The NLRB determines whether a proposed bargaining unit is an appropriate bargaining unit by considering whether the employees share a community of interest and whether those interests are sufficiently distinct from those of other employees not included in the unit. Increasingly, unions are organizing new members through the alternative means of receiving voluntary recognition from employers following neutrality agreements and card-check procedures.

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Chapter 14: Occupational Safety and Health True / False 1. The Occupational Safety and Health Act (OSHA) created two new agencies. a. True b. False ANSWER: False 2. Under OSHA, a workplace need not be made completely safe, but must be made safe enough. a. True b. False ANSWER: True 3. If an OSHA violation is found at a workplace, the employer must post a notice about it near where the violation occurred. a. True b. False ANSWER: False 4. Only full-time employees are covered by workers’ compensation programs, not part-time workers or independent contractors. a. True b. False ANSWER: False Multiple Choice 5. A principal objective of the Occupational Safety and Health Act is: a. compensating employees for injuries and illnesses that occur on the job b. preventing injuries and illnesses on the job c. promoting healthier life styles for employees d. punishing employers who fail to maintain a safe and healthy workplace ANSWER: b 6. By law, employers must arrange workers’ compensation coverage for their employees. They may do this by any of the following except: a. contributing to state workers’ compensation funds b. contributing to federal workers’ compensation funds c. self-insuring d. purchasing coverage from private insurers ANSWER: b 7. Which of the following is true of OSHA’s permanent standards? a. they must be followed without exception b. they apply to firms in all industries c. they are adopted only after a lengthy process of public hearings and documentation Copyright Cengage Learning. Powered by Cognero.

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Chapter 14: Occupational Safety and Health d. they provide for the safest actions possible ANSWER: c 8. Which of the following is true regarding the enforcement process under OSHA (the Act)? a. Inspectors can issue citations to employers when they find violations b. Copies of citations received must be posted in the workplace near the sites of the violations c. Employers must correct violations immediately and not wait until after their appeals have been decided d. OSHA inspections are generally unannounced and the employer is required to allow the inspector access as long as the inspector shows proper credentials ANSWER: b 9. Which of the following is an element needed to establish a violation of the general duty clause? a. A potential hazard exists which was known in the industry b. The employer acted with intent in allowing the hazard to exist c. Feasible means exist to abate the hazard d. The hazard is life-threatening ANSWER: c 10. In R. Williams Construction Co. v OSHRC, a trench collapsed at a construction site, killing one worker, and severely injuring another. A hydraulic jack supporting the wall had been removed, and the walls of the trench were not sloped, as required by OSHA regulations. The construction firm argued that, although it did not know what the OSHA requirements were, its employees had much work experience and common sense, and they talked about safety “all the time.” The OSHRC ruled: a. for the employer, because of the several years of experience of its workers b. for the employer, because the employees frequently talked about safety c. for the workers, because there was a death and a serious injury d. for the workers, because OSHA regulations applied, and it is not a defense that the firm did not know about OSHA regulations ANSWER: d 11. Identify the true statement regarding the Mine Safety and Health Act. a. It is a state statute b. It contains penalties for violations c. It is enforced by OSHA d. It relies on self-reporting by mines’ operators and owners ANSWER: b 12. Which of the following is true regarding safety and health inspections? a. Inspection sites are always chosen at random b. OSHA has the authority to enter and inspect all workplaces, regardless of employer objections c. In about half of the states, inspections are conducted by state agencies rather than by OSHA d. OSHA is able to perform less than 100 inspections per year ANSWER: c 13. Which of the following is true of workers’ compensation?

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Chapter 14: Occupational Safety and Health a. Workers’ compensation benefits are determined by a jury b. Pursuant to workers’ compensation, the employer gives up its right to defend against liability for employee injuries with the Fellow Servant Rule c. Pursuant to workers’ compensation, the employer does not give up its right to defend against liability for employee injuries with assumption of the risk d. Workers’ compensation is not compulsory, meaning that employers may decide not to arrange workers’ compensation coverage for their employees ANSWER: b 14. Employees who walk off the job due to dangerous conditions may be protected under OSHA (the Act) if: a. there has been an inspection and OSHA has validated the claim that dangerous conditions exist b. the employer has been informed of the hazard and does not correct it c. there is a specific OSHA standard that applies to the hazard d. there is an imminent threat of serious injury or death which cannot wait for the inspection process ANSWER: d 15. Which of the following is true of OSHA reporting and recording requirements? a. Employers with fewer than 50 employees are generally exempt from recording injuries and illnesses b. All injuries or illnesses must be reported to OSHA within 6 days of their occurrence c. Injuries that result in death or the hospitalization of three or more employees must be reported to OSHA within 8 hours of their occurrence d. Injuries must be reported immediately, but illnesses may be reported within 6 days ANSWER: c 16. Which of the following is true of workers’ compensation? a. Employees are compensated for workplace injuries and illnesses as long as the employer’s negligence played a part b. Experience rating provides employers with a strong incentive to prevent injuries by making the workplace safer c. Because employees are hurt through no fault of their own, workers’ compensation is designed to replace all of the income lost due to inability to work d. Employers can always avoid paying workers’ compensation if it can be shown that the employee’s own careless actions contributed to the injury ANSWER: b 17. Which of the following agencies was created by the Occupational Safety and Health Act? a. The Worker’s Compensation Board b. The National Institute of Occupational Medicine c. The National Institute of Occupational Safety & Health d. The National Institute of Mental Health ANSWER: c 18. Regarding OSHA inspections, which of the following statements is correct? a. Most enforcement actions derive from employee complaints and OSHA inspections b. Most inspections are scheduled Copyright Cengage Learning. Powered by Cognero.

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Chapter 14: Occupational Safety and Health c. OSHA cannot enter a workplace without a warrant d. OSHA routinely visits each workplace annually ANSWER: a 19. A woman wrenched her back participating in a limbo contest on the weekend. Feeling better, she went to work at her job as a secretary on Monday. Lifting a box of copier paper, she experienced severe back pain and needed immediate medical attention. She was off from work for two weeks due to the injury and filed a claim for workers’ compensation. If her employer contested the claim, the most likely outcome of the case would be: a. denial of the claim because the injury did not occur in the course of employment b. denial of the claim because, under the usual exertion rule, the injury did not arise out of employment c. granting of benefits because, under the usual exertion rule, the injury arose out of employment d. granting of partial benefits due to the pre-existing injury ANSWER: c 20. The least effective thing an employer can do to avoid OSHA violations is: a. take steps to prevent workplace injuries b. create a comprehensive workplace safety program c. anticipate workplace hazards, and take steps to prevent them d. address workplace hazards as soon as possible after they occur ANSWER: d 21. You are an administrative clerk in the Human Resources Department of a construction firm. You are aware that there have been several injuries on the job site in the past two months, some of them serious, and know that reports are supposed to be filed with OSHA reporting serious injuries. The HR manager has been complaining bitterly about OSHA, especially since they have done inspections at your firm’s job sites twice in the last year, and has made comments like, “It’s none of their damned business if one of our guys is stupid enough to get hurt.” It is one of the tasks of the Assistant HR Manager to file reports of serious job accidents, but she has suddenly resigned. You are asked to temporarily take her place. You do so, and discover in her desk drawer, paper-clipped together, the reports of serious injuries which have been prepared over the past 3 months, but not sent to OSHA. Considering your duties and your legal protections, which of the following would be your best option? a. Send them in an overnight package to OSHA immediately, but say nothing; (maybe they’ll think she sent them in) b. Send them in an overnight package to OSHA immediately, but tell the HR Manager that you have sent in the reports so as to comply with the law c. Tell the HR Manager that you found the reports, and ask what he wants you to do; (you know what answer you’ll get) d. Do nothing because the decision belongs to the HR Manager ANSWER: b 22. You work in a large office in the “bullpen,” a large open area of desks, chairs and computers, where about 50 people work, separated only by low-level cubicle walls. In this area, several teams of people work together on different projects.

Lately, there have been a lot of pranks played by one rowdy team upon another team (not yours), which have escalated.

Yesterday, someone lowered the seat of a worker’s chair while he was out of his cubicle, and when he returned and attempted to sit down, he fell and injured his back. You believe this conduct needs to stop, but management has so far ignored the situation. What should you do and why? a. Do nothing; if you report this conduct, you’ll be ostracized by your co-workers; besides, its harmless horseplay Copyright Cengage Learning. Powered by Cognero.

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Chapter 14: Occupational Safety and Health b. Report the behavior to management, telling them about the potential for more serious injuries, and asking them to take steps to stop it before anyone else is injured c. Report the behavior to OSHA, and ask for an inspection; OSHA can’t reveal your name, so no one will know (though the company may get in trouble) d. Report the behavior to the Workers’ Compensation Board, so that the injured employee can receive compensation for the injury ANSWER: b 23. The elements of a specific violation of OSHA regulations include the following: a. an applicable standard exists b. the standard was known by the employer c. at least two employees were injured by the hazard d. the employee did not knowingly incur in the injury ANSWER: a 24. Your office is being expanded, which is good, but the noise of construction is bothering some workers. Some complain of headaches, others of hearing problems. If you are the Safety Director for the firm, which of the following would you recommend as the best remedy? a. The firm should supply earplugs to the office staff, and try other means to reduce noise from the construction site b. The construction firm should be ordered to work more quietly c. Those who are suffering from hearing problems and headaches should go home d. Nothing; there is nothing that can legally be done ANSWER: a Essay 25. Employers have both reporting and recording responsibilities under the OSH Act. Discuss them briefly and identify instances in which these duties may be violated.

ANSWER: Work-related injuries and illnesses must be recorded promptly and made available upon request to OSHA inspectors. Annual summaries of injuries and illnesses must be displayed in the workplace and in some cases transmitted electronically to OSHA. Fatalities and other very serious injuries must be promptly reported to OSHA. Employers need to use a variety of measures or “controls” to protect employee safety and health.

These include engineering controls, administrative controls, training, and personal protective equipment.

Whenever possible, the aim is to eliminate hazards, rather than rely on protective equipment to shield employees from these dangers.

26. Workers’ compensation requires that for an injured employee to be eligible for benefits, they must be injured arising out of and in the course of employment. Questions frequently arise when the injury is caused by the employee’s misconduct or the misconduct of a fellow worker. Discuss how employee misconduct is looked at when determining whether an injured employee is eligible for benefits.

ANSWER: In general, an employee who through their own negligence or misconduct causes their own injury will forfeit their rights to benefits. There are certain exceptions: • •

If the misconduct that resulted in the injury does not constitute a substantial departure from the employee’s required tasks, the injured employee will likely be entitled to benefits If the misconduct is an activity known about and condoned by the employer, the injured employee will likely be entitled to benefits

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Chapter 14: Occupational Safety and Health • •

If the misconduct is committed by a fellow employee and the injured employee was an innocent victim, the injured employee will likely be entitled to benefits If the misconduct occurred while the employee was under the influence of drugs or alcohol, the injured employee will likely not be entitled to benefits

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Chapter 15: Privacy on the Job True / False 1. The U.S. Constitution does not explicitly provide for a right to privacy in the Fourth Amendment. a. True b. False ANSWER: False 2. Public employers, but not private employers, must establish probable cause or obtain warrants before conducting workplace searches. a. True b. False ANSWER: False 3. Most states recognize the privacy tort of intrusion upon seclusion. a. True b. False ANSWER: True 4. Employers can use cameras to keep tabs on both customers and employees. a. True b. False ANSWER: True Multiple Choice 5. A department store clerk learns that her employer has placed a hidden video camera in the employee changing room. If she sues, the claim would most likely be for: a. violation of her 4th Amendment right to be free from unreasonable search or seizure b. intrusion upon seclusion c. public disclosure of private facts d. false imprisonment e. appropriation of a name or likeness ANSWER: b 6. Which of the following statements regarding surveillance and video monitoring of employees is correct? a. Before surveillance or video monitoring of employees can take place, a search warrant must be obtained b. Surveillance and video monitoring of employees can take place in all places open to public view, without the need for a search warrant c. Only employees in the private sector have some reasonable expectation of privacy at work d. Employees with jobs that make me come in contact with the public have no reasonable expectation of privacy at work ANSWER: b 7. Which of the following is an element of an intrusion upon seclusion privacy tort claim? a. One party intentionally pries into the private affairs of another Copyright Cengage Learning. Powered by Cognero.

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Chapter 15: Privacy on the Job b. The broad disclosure of private information to others c. The use of private information by others for their own benefit d. Evidence of surreptitious systems to pry into the private affairs of another ANSWER: a 8. Conduct that is “outrageous” is required to establish: a. a privacy tort claim b. infliction of emotional distress c. false imprisonment d. malicious prosecution ANSWER: b 9. The Privacy Act requires: a. that covered employers adopt written workplace privacy policies b. that employees be informed if they are subject to monitoring or surveillance in the workplace c. that medical records must be kept confidential and separate from personnel files d. that violations of the Act must be intentional ANSWER: d 10. In a case in which two managers broke into a locked restroom and snapped a revealing photograph of a male employee while he was urinating, then circulated it around the office, the managers committed the tort of: a. false imprisonment b. intentional infliction of emotional distress c. placement in a false light d. appropriation of name or likeness ANSWER: b 11. Regarding the right to privacy: a. employees have a 4th amendment right to be free from unreasonable searches and seizures of their workplaces b. common law privacy protections apply to public, but not private employees c. whether an employee has a reasonable expectation of privacy is determined on a case-by-case basis d. constitutional rights to privacy apply to private, but not public employees ANSWER: c 12. Erroneous statements by company officials that an employee suspected of stealing goods from the company was an “admitted thief” supports a claim under the theory of: a. false imprisonment b. intentional infliction of emotional distress c. placement in a false light d. appropriation of name or likeness ANSWER: c 13. Amanda is an employee at a high end department store in the HR department and has been in her office all day. After a pair of diamond earrings are found missing from the jewelry department, Mike, the store manager has every employee in Copyright Cengage Learning. Powered by Cognero.

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Chapter 15: Privacy on the Job the store brought together pursuant to an investigation. Which of the following is true? a. Because the missing items are extremely small, Mike can order Amanda into a room to be strip searched by Hilda, the head of security b. Mike can go through the contents of Amanda’s purse as long as he doesn’t touch her physically c. Mike can search Amanda’s desk d. Mike cannot legally conduct a search of Amanda's person, belongings, or office ANSWER: d 14. Under the Employee Polygraph Protection Act: a. employees cannot review the questions before the test begins b. employees cannot be disciplined or discharged for refusal to submit to a polygraph c. employees cannot terminate a polygraph exam once it has begun if they have voluntarily consented to the exam d. employees cannot access the results of a polygraph, since this belongs to the employer ANSWER: b 15. The Electronic Communications Privacy Act: a. prohibits the intentional interception of electronic communications b. prohibits the monitoring of computer use by employers c. prohibits the accessing of stored e-mail messages by employers d. prohibits the monitoring of employee business calls from an extension ANSWER: a 16. Regarding workplace privacy, which of the following statements is NOT true? a. Under the 4th Amendment to the U.S. Constitution, federal government employees enjoy protection from unreasonable searches and seizures while at work b. Under the 4th Amendment to the U.S. Constitution, private employees enjoy protection from unreasonable searches and seizures while at work if their employers are federal contractors c. Searches of a private employee’s work area must be reasonable in scope d. To assert privacy rights, employees must be able to demonstrate a reasonable expectation of privacy ANSWER: b 17. A young female cashier was accused of taking some money that a customer had placed on the counter, store personnel proceeded to take her into a restroom and conduct a strip search—in full view of the complaining customer. The cashier can bring a suit under the theory of: a. intrusion upon seclusion b. public disclosure of private facts c. placement in a false light d. intentional infliction of emotional distress ANSWER: d 18. Which of the following torts includes evidence of “behavior that is so outrageous, shocking, or atrocious as to be beyond the bounds of what is tolerable in a civilized society” to succeed? a. intrusion upon seclusion Copyright Cengage Learning. Powered by Cognero.

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Chapter 15: Privacy on the Job b. public disclosure of private facts c. placement in a false light d. intentional infliction of emotional distress ANSWER: d 19. Which of the following laws mandates that medical information obtained from current employees must be job-related and consistent with business necessity? a. The Privacy Act b. The Americans with Disabilities Act c. The National Labor Relations Act d. The Occupational Safety and Health Act ANSWER: b 20. Under the OSH Act, records of an employee’s exposure to toxins must be kept: a. for 10 years b. for 20 years c. for 30 years d. indefinitely ANSWER: c 21. HIPAA applies primarily to: a. hospitals receiving Medicare payments b. self-insured companies c. all firms contracting with the federal government d. group health insurers ANSWER: d 22. Regarding the monitoring and surveillance of employees, an employer could legally place video cameras in which of the following locations? a. Employee restrooms b. At an employee’s computer workstation c. In a changing room for company uniforms d. At the employee’s private residence ANSWER: b 23. The Privacy Act regulates the handling of personnel records: a. by all private employers b. only by agencies of the federal government c. by private employers that are governmental contractor d. only by employers in the health care sector ANSWER: b 24. Regarding employer searches of employees at the workplace, which of the following is true? a. Generally, employers may conduct searches of employee workplaces, although obtaining consent is best Copyright Cengage Learning. Powered by Cognero.

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Chapter 15: Privacy on the Job b. All such searches should be conducted while the employee is away from his desk c. Evidence obtained through searches can be retained by the employer d. Employers may conduct searches of employee workplaces only upon obtaining a search warrant ANSWER: a Essay 25. Discuss what is meant by “reasonable expectation of privacy,” when employees enjoy it and the legal consequences for employers’ efforts to monitor employees.

ANSWER: Reasonable expectation of privacy is a key concept in workplace privacy law. It refers to whether an employee had reasonable grounds under the circumstances for believing that they would be free from monitoring, searches, disclosures, etc. Whether a reasonable expectation of privacy exists is a case-by-case determination based on policies, practices, and other circumstances. If a reasonable expectation of privacy is deemed to exist, the reasonableness of a search—both at its inception and in its scope—is considered. When this expectation is absent, privacy claims based on the Constitution or privacy torts will fail.

26. Jordan has just graduated and has started a new job as an investment banker. After her conditional offer of employment, she took a company required medical exam and then when she applied for company life insurance coverage, she was required to take a second medical exam. Although she is currently an avid cyclist and very healthy, in the past she had experienced certain problems. In her freshman year, she suffered through a problem pregnancy and a resultant still birth. As a result, she underwent an involuntary hysterectomy to save her life. She was devastated that at 19 years old she would never be able to have a child and suffered from depression. She underwent intensive psychological counseling for six months and is currently very well adjusted and other than some regret, she has accepted her fate. Both her demeanor and appearance are both normal and fit. She is however, a very private person and is concerned that her personal information could become public. What would you tell her about the laws that protect her?

ANSWER: Neither her mental or physical condition is a disability, nor is the consequence of her prior surgery pertinent to her job or her ability to do her job. The information is therefore both personal and private. Besides the common law tort protections afforded under Intrusion upon Seclusion, Intentional Infliction of Emotional Distress and Public Disclosure of Private Facts, there are a number of statutes that require her employer to safeguard and keep her medical information private and confidential. These include: • •

The ADA requires that employers keep information regarding an employee’s medical condition or history in a location apart from other personnel records and treat the information as a confidential medical record.

HIPPA requires that information obtained from the insurance company be only disclosed for very limited purposes directly related to her employment. Since neither her prior surgery nor her past depression have any application to fulfilling her responsibilities as an investment banker, there would be no reason to use or make public her personal and private information.

Working as an investment banker does not involve particular workplace hazards that would trigger OSHA concerns nor are there work-related circumstances that would mandate disclosure to managers, supervisors, or fellow workers. Her hysterectomy provides no threat to her nor to fellow employees or customers, and her prior depression is likewise a past circumstance with no current effect.

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Chapter 16: Terminating Individual Employees True / False 1. The Pickering Balancing test requires that the court weigh the free speech interests of the employee and public against the government’s countervailing interest as an employer to promote workplace efficiency and avoid workplace disruption. a. True b. False ANSWER: True 2. An employer's constructive discharge of an employee creates a cause of action for that employee for wrongful discharge. a. True b. False ANSWER: False 3. Under pure employment at will, there is no such thing as a wrongful termination. a. True b. False ANSWER: True 4. Unless an employee has a written contract of employment for a term of years, she cannot sue for termination based on contract. a. True b. False ANSWER: False Multiple Choice 5. In Dorshkind v. Oak Park Place of Dubuque II, the employee, Dorshkind, claimed a wrongful discharge maintaining that her report of the wrongdoing of other employees fell within the public policy exception to employment at will, so that she should not have been terminated from her employment. The court ruled: a. for the employer, finding that the other employees had not engaged in wrongdoing b. for the employer, finding that, although the other employees had engaged in wrongdoing, that did not create a public policy exception for Dorshkind c. for the employee, Dorshkind, because, although there was no public policy exception for reporting the wrongdoing of others in this situation, Dorshkind did not commit any wrongdoing, and so could not be fired d. for the employee, Dorshkind, because, she found that a public policy exception existed which precluded her firing for reporting the wrongdoing of her coworkers ANSWER: d 6. Which of the following is a circumstance under which the public policy exception to employment at will is recognized? a. Termination for reporting illegal activity b. Termination for refusing to commit an illegal act c. Termination for exercising a legal right d. Termination for refusing to comply with an employer’s unreasonable request ANSWER: b Copyright Cengage Learning. Powered by Cognero.

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Chapter 16: Terminating Individual Employees 7. “Just cause” is required for the discipline or discharge of unionized employees because: a. the Constitution requires it b. labor agreements require it c. the National Labor Relations Act requires it d. arbitrators prefer the just cause standard to employment at will ANSWER: b 8. The Montana Wrongful Discharge from Employment Act (WDEA): a. requires the arbitration of all wrongful discharge claims b. prohibits discharges that are not for good cause c. requires that employers provide due process before discharging employees d. prohibits employees being terminated from their employment ANSWER: b 9. The legal environment for public employees differs from private sector employment in all of these ways EXCEPT: a. that they are covered by civil laws b. that they generally enjoy a property interest in their jobs c. that they have speech and other substantive constitutional rights d. that they are more likely to be unionized ANSWER: a 10. An employment manual contains a notice and disclaimer that the employment is entirely “at will,” and also contains a progressive discipline system which recites an escalating series of notices and warnings before termination. If an employee is terminated immediately, and the progressive discipline system is not followed: a. the termination is justified because the manual contains an “employment at will” disclaimer b. the termination is not subject to legal redress because the manual contains an “employment at will” disclaimer, so the employer had a right to terminate employment without conditions c. the termination is suspect because the progressive discipline system was not followed d. the termination is lawful because the employee did something wrong ANSWER: c 11. In a constructive discharge: a. the employer provides feedback on performance problems that will help the employee in a future job b. a quit is treated as a termination because circumstances forced the employee to leave c. the employee will be able to sue for the tort of constructive discharge d. the employee is fired after the employer has built or constructed a prima facie case for the employee’s dismissal ANSWER: b 12. Which of the following is generally required to establish just cause for a termination? a. Due process b. Evidence that a practice generally followed by employees was violated c. An attempted enforcement of the relevant rule or standard d. The employee admits to the wrongdoing Copyright Cengage Learning. Powered by Cognero.

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Chapter 16: Terminating Individual Employees ANSWER: a 13. Which of the following is required for a successful implied contract wrongful discharge claim? a. A written contract signed by both the employer and the employee b. A specific oral promise limiting employment at will c. A clear and prominent written disclaimer d. That the financial situation of the employer has changed ANSWER: b 14. Over lunch, a manager at Microsoft says to another manager, “You know, just between you and me, it might not have been the worst thing in the world if the court had ordered the company to break-up. We really are too big.” The comment was overheard by another employee at the next table and passed on to higher-level managers. If the manager is fired for making the statement and she sues Microsoft, a court would most likely rule: a. for the employee because the company would be violating her First Amendment right of free speech b. for the employee because her speech constituted protected concerted activity under the National Labor Relations Act c. for the employer because her statements showed disloyalty to the company, for which she could lawfully be terminated d. for the employer because she is employed at will and none of the exceptions to employment at will apply in this case ANSWER: d 15. Due process includes only the following: a. a letter by the employer that gives notice of termination without the requirement to discuss the charges b. an opportunity for the employee to respond to the charges c. the submission of the case to a jury d. a representation by an attorney of the employee's choice ANSWER: b 16. Regarding the termination of individual employees, it is NOT correct to say that: a. the rights of the employee will depend upon whether she works in the private sector or the public sector b. employers can avoid the legal consequences of termination by effectively (but not officially) discharging employees c. the rights of the employee will depend upon whether he works in a facility that is unionized d. the employer must follow the procedure for termination set down in the employee handbook ANSWER: b 17. A salesperson makes a large sale for which she is entitled to a commission. To avoid making the payment, the employer terminates the employee. The legal claim that best applies to this termination is: a. breach of the covenant of good faith and fair dealing b. promissory estoppel c. implied contract d. infliction of emotional distress ANSWER: a Copyright Cengage Learning. Powered by Cognero.

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Chapter 16: Terminating Individual Employees 18. Among the factors considered by the courts in determining whether a quit was a constructive discharge are all of these EXCEPT: a. demotions b. reductions in job responsibilities c. reassignment to greater responsibility d. reassignment to work under a younger supervisor ANSWER: c 19. After a troublesome time with a new manager, an employee who had always had highly positive reviews returned from vacation to find that her desk had been cleared out, all of her belongings were in boxes, and her office was being used for storage. While she was on vacation, her new supervisor had called, asking where certain documents were located.

When he found the employee’s answer unsatisfactory, the supervisor said, “Well, this is the last straw.” What is the best assessment of this situation? a. The employee has suffered discrimination b. The employee has suffered a constructive discharge c. The employee has quit d. The employee has suffered a demotion ANSWER: b 20. A veteran teacher was told by a school superintendent that he would recommend that the school district not renew her contract at the end of the school year. Rather than contest the recommendation, the school teacher retired. What is the best assessment of this situation? a. The employee has suffered discrimination b. The employee has suffered a constructive discharge c. The employee has quit d. The employee has suffered a demotion ANSWER: c 21. You are the HR Manager for your company. One of your employees has been actively involved in demonstrations at City Hall, protesting the city’s refusal to adopt any environmentally friendly ordinances or practices. While at these protests, he is often wearing a company T-shirt, and you are concerned that news reports of the demonstrations will lead people to conclude that your company is protesting the city’s environmental policies, something which your Board of Directors has not authorized. You should: a. give the employee a “warning,” the first step in your employee handbook’s progressive discipline process, warning him that he must stop protesting b. tell the employee that you do not approve of his conduct, and that it will be taken into account when he comes up for a raise or promotion c. ask the employee to wear some other shirt while protesting, so that people don’t think your company is also protesting d. terminate the employee ANSWER: c 22. You have just been hired as the new HR Director of your firm, and have received a complaint and summons served by the sheriff, relaying the lawsuit filed by a former employee. As you read through the complaint, you can see that the employee himself wrote it (and not a lawyer), but you think you recognize what your predecessor did wrong. It was that: a. The employee alleges that he was offered a month’s severance pay in exchange for a release of claims against Copyright Cengage Learning. Powered by Cognero.

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Chapter 16: Terminating Individual Employees the company. b. The employee alleges he was never told why he was being fired, and thinks it was because he is Irish. He claims discrimination based on national origin. c. The employee alleges he was only given 2 hours to clean out his desk, while a security guard watched. d. The employee alleges he was called into the HR manager’s office 4 times over the past 6 months, and given warnings that he was not performing satisfactorily. He alleges that this constitutes harassment.

ANSWER: b 23. An employee of a family-owned car dealership suffered an injury while lifting computer equipment on the job. The employee reported the injury to the HR department, and sought worker’s compensation benefits. The owner of the car dealership was convinced that the injury was actually incurred in a stockcar accident, and told a supervisor to get the employee to sign a form waiving his right to receive worker’s compensation for the injury. The supervisor (a brother of the owner) was told that if he didn’t get the employee (who happened also to be his son) to sign the waiver, both of them would be fired. A waiver was never signed, and both employees were terminated. They sued. All of the following are most likely true, EXCEPT: a. The employee who was injured is exercising a legal right, and may not legally be terminated for doing so, based on the public policy exception to employment at will. b. The employee who was asked to get a signed release for an on-the-job injury is refusing to perform an illegal act, and may not legally be terminated for doing so, based on the public policy exception to employment at will. c. The owner of the car dealership is within his rights to try to reduce the costs to his company by any means possible d. The owner’s dinner table this Thanksgiving will likely be missing the owner’s brother and nephew.

ANSWER: c 24. Identify what occurs when a party takes action in reliance on the promise of another, who then breaks that promise. a. Promissory estoppel b. Intentional interference with a contractual relationship c. Retaliation for an act supporting public policy d. Constructive discharge ANSWER: a Essay 25. Why is each of the following good legal advice? a. Resignations should be documented in written resignation agreements that stipulate the voluntary nature of the resignation. b. Terminated employees should be provided with a clear and succinct statement of the reasons for their termination. c. Discipline should be administered in a consistent fashion. d. Unionized employers must communicate any significant changes in rules to employees and their union before enforcing those new rules. e. Prior to termination, public employers must provide employees with notice of the charges against them, an explanation of the evidence, and an opportunity to respond. f. Employers should incorporate disclaimers into employee handbooks and other documents defining the employment relationship.

ANSWER: Answer a: Constructive discharge – A quit might be viewed by the courts as a termination if it occurs under duress, such as if an employee is presented with the choice of resigning immediately or being fired.

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Chapter 16: Terminating Individual Employees Answer b: Might be required by state service letter laws; vague or conflicting statements of the reasons for termination are more likely to be deemed pretextual by a judge or jury; failure to be forthcoming will encourage legal action by terminated employees.

Answer c: Avoid discrimination (disparate treatment); ensure just cause (unionized employees) Answer d: Just cause, arbitration of discipline/discharge decisions – An arbitrator is less likely to find just cause for discipline or discharge where it is not clear that employees were informed of and had the opportunity to conform to the employer’s requirements.

Answer e: U.S. Constitution, 5th and 14th Amendments, due process rights. Public employees with a property interest in their jobs must be afforded due process, both prior to termination and in more elaborate form following termination.

Answer f: Implied contract – A clear and prominent disclaimer can negate a wrongful discharge claim based on an implied contractual promise limiting the right to terminate at will.

26. You are the Director of Human Resources for a medium-sized private company and have discharged Aimee, a 25year-old black at-will employee for poor work, constant tardiness, and taking longer breaks than authorized by company policy. She is not well liked by her fellow workers and her work is indeed slightly below satisfactory levels. Company files evidence numerous sub-standard reviews and that her conduct persisted despite numerous written warnings. You are confident that the company has proper cause to terminate Aimee whether she was at-will or not. When you call her into your office to notify her of her termination, she gets very indignant saying that her work is fine and that she’s not the only one late or abusive of break periods. She then asserts that she’s being singled out because of her sex and her race. She asks about severance pay and you notify her that there will not be any. Aimee then informs you that she is going to sue the company for wrongful termination based on discrimination and for severance pay. The company does not want Aimee to work there any more under any circumstances but does not want the cost or publicity that a law suit would bring. What would you suggest to possibly abate the law suit?

ANSWER: Unless women and blacks were truly underrepresented, or some other pretext could be proven, the company is on strong ground. Nevertheless, the cost of litigation and the possible negative publicity is an appropriate concern that should be avoided if possible, even when a company win is apparently inevitable.

Severance pay is not required to be paid by a former employer unless there is an express or implied contract specifying that it will be available. Whether previously specified or not, if the company has paid severance in the past, it would be good policy to remain consistent and pay it to Aimee.

Even if it was not something historically done, offering Aimee severance pay is a legitimate means to allay a possible law suit. Severance pay would be proper consideration in exchange for a release of Aimee’s right to sue; such releases are legal and enforceable. Other negotiating points may be the offering of outplacement services, payment of health care benefits for either a definite period or until she secures employment, or some other appropriate inducement may also help to secure the release. The key is that the agreement to release her claim must be knowing, voluntary, and supported by consideration.

Although it might stick in the craw to offer this employee anything, it is best to consider the long-term consequences for the company, and what would serve its best interests. Negotiating to settle potential claims is often smart business practice, and is a time honored way of settling disputes, without regard to who is at fault.

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Chapter 17: Downsizing and Post-Termination Issues True / False 1. The legal term for a reduction in workforce is downsizing. a. True b. False ANSWER: False 2. Downsizing should not be discriminatory, but the chief concern is age discrimination. a. True b. False ANSWER: True 3. Successor employers are generally bound by the terms of existing labor agreements. a. True b. False ANSWER: False 4. Under federal law, it is legal for employers to offer early retirement incentives to entice workers to leave their jobs sooner than they otherwise might have. a. True b. False ANSWER: True Multiple Choice 5. Which of the following is NOT true of a trade secret? a. It derives economic value from not being known to others b. The owner must take steps to preserve its secrecy c. It must be registered with the government d. It can be protected with a nondisclosure agreement ANSWER: c 6. The firm for which you have worked for 6 years has filed for Chapter 11 bankruptcy. What this means to you is: a. you will receive your wages going forward without fail, as you are now a secured creditor b. you are likely to receive your wages going forward, as they have a high priority in bankruptcy cases like this one c. your union contract as to wages and benefits is null and void d. your right to receive wages remain the same ANSWER: b 7. Noncompetition agreements: a. are almost always enforced by the courts b. will be enforced unless former employees can show that the agreements are overly broad c. will not be enforced unless the former employer can show that they are not more restrictive than necessary d. are less commonly used now than in the past Copyright Cengage Learning. Powered by Cognero.

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Chapter 17: Downsizing and Post-Termination Issues ANSWER: c 8. Which of the following is NOT a type of restrictive covenant? a. Noncompetition agreement b. Nonsolicitation agreement c. Nondisparagement agreement d. Nonconvergence agreement ANSWER: d 9. To be eligible for unemployment insurance: a. the employee must be involuntarily unemployed b. the employee must be willing to perform any work that is offered c. the employee must be available to work within 90 days of becoming unemployed d. the employee must go on interviews at least 20 hours per week ANSWER: a 10. Imagine that you are the judge hearing a Motion for Summary Judgment. The case before you concerns the former Vice-President of Marketing at May Department stores, who has recently been hired by Victoria’s Secret. May Department stores has sued to enforce the non-competition agreement in which the VP agreed not to work for firms competing directly against May Department stores. Both parties agree that both stores sell women’s intimate apparel, but to different ages of women, and to different customer bases. They also agree that about 8% of May’s business is women’s intimate apparel, while 98% of Victoria’s business is women’s intimate apparel. What should you decide? a. Even though both companies sell women’s intimate apparel, there is no meaningful or material competition between them b. When both companies sell the same category of products, in determining whether the companies are in competition, the sale of the products is important, not the percentages of overall sales of the product c. When both companies sell the same category of products, the fact that they both sell these products to women is important in determining whether the companies are in competition, not the ages of the women, nor the typical customer base d. When both companies sell the same category of products, a non-competition agreement prohibiting a former employee to work for a competitor is always breached ANSWER: a 11. Legal issues concerning downsizing include all of these EXCEPT: a. the decision to downsize b. the manner in which downsizing is implemented c. the decision about which individuals to downsize d. the cost of downsizing ANSWER: d 12. Changes in benefit plans are under “serious consideration” when: a. top managers meet to discuss implementation of a specific plan b. the employer is firmly committed to offer the revised benefit plan c. information has been gathered regarding alternative plan options d. the employer has held a meeting to present to employees alternative plan options Copyright Cengage Learning. Powered by Cognero.

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Chapter 17: Downsizing and Post-Termination Issues ANSWER: a 13. Which of the following employees is most likely eligible for unemployment insurance? a. Vito is fired for continually refusing to wear a hard hat in a restricted area in violation of company policy b. Ophelia quits her job because of a pervasive and continuing hostile environment c. Steven quits his job as an English professor because he’s insulted that a new hire in Management is getting a higher salary than he does d. Hillary is sick and therefore unable to collect her wages ANSWER: b 14. Under the WARN Act: a. large employers are prohibited from closing plants or laying employees off for the purpose of defeating unionization b. large employers must give their employees three months (90 days) advance notice of plant closings and mass layoffs c. large employers must provide outplacement services to employees affected by plant closings and mass layoffs d. large employers may have to give several notices of layoffs ANSWER: d 15. An employer decides to downsize to cut costs. It plans to eliminate 100 jobs out of 250 total jobs. The employer notifies the employees’ union representative on May 15. The layoffs will be effective May 30. If the employer’s action is legally challenged, a court would most likely decide: a. for the employer because it is not large enough to be covered under the WARN Act b. for the employer because there is no plant closing or mass layoff that would trigger the WARN Act’s requirements c. for the employees because they did not receive individual notification as required by the WARN Act d. for the employees because they did not receive the amount of advance notice of a mass layoff required by the WARN Act ANSWER: d 16. An employer who closes the business rather than deal with the union his employees have formed: a. does not violate the National Labor Relations Act b. violates the National Labor Relations Act if it can be proven that the motive was hostility toward unionization c. must bargain in good faith with the union before deciding to go out of business d. is required under the WARN Act to give the employees 60 days’ notice ANSWER: a 17. A 55-year-old supervisor who has always received good performance appraisals is downsized. Two younger (42- and 45-year-old) supervisors from the same department, whose performance had been rated lower, were nonetheless retained.

The employer says that it had to save money and that the older supervisor earned considerably more money (he did). If the termination is legally challenged, a court would most likely decide: a. for the employer because employee could not establish a prima facie case of age discrimination under the ADEA b. for the employer because the employees retained were also over 40 years of age c. for the employer because it had a lawful, non-discriminatory motive for the termination Copyright Cengage Learning. Powered by Cognero.

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Chapter 17: Downsizing and Post-Termination Issues d. for the employee because the employer has engaged in disparate treatment based on age ANSWER: c 18. Which of the following laws has the most exacting requirements for a valid separation agreement? a. The Age Discrimination in Employment Act b. Title VII c. The Older Workers Benefit Protection Act d. The Americans with Disabilities Act ANSWER: c 19. A 52-year-old employee with 34 years on the job was downsized during a RIF. On a new performance scale prepared for the RIF, the one item at which she excelled was eliminated, and she scored badly, compared to a younger worker with less experience. The younger worker was retained. Earlier that same year, the supervisor of the 52-year-old had rated her as “doing a great job.” She sued under the ADEA. On a Motion for Summary Judgment, what should the court decide? a. For the employer, because the employee scored poorly on the performance scale b. For the employer, because the employee had not conclusively proven that she was terminated because of her age c. For the employee because she had proven age discrimination in her termination d. For the employee, because she had raised material questions of fact, so that summary judgment was reversed, and the case remanded for trial ANSWER: d 20. Regarding early retirement incentives, all of the following are true EXCEPT: a. that early retirement incentives are discriminatory if based on age b. that early retirement incentives may be offered to employees above a certain age, for example, age 55, but not, for example, also to those between 40 and 45 c. that early retirement incentives are a legal way to reduce the workforce d. that early retirement incentive may be used to reduce the number of highly paid employees ANSWER: a 21. Regarding the bankruptcy filing of an employer, which of the following statements is true? a. employees are secured creditors b. employees are unsecured creditors c. employees are not creditors d. employees are creditors who stand high in priority in a Chapter 11 bankruptcy filing ANSWER: b 22. With regard to unemployment insurance, which of the following statements is true? a. Only workers who have been fired are eligible for unemployment insurance b. Only workers who quit are eligible for unemployment insurance c. Only workers who are involuntarily terminated are eligible for unemployment insurance d. Employers should routinely context all claims for unemployment insurance ANSWER: c 23. Because of the worsening economic situation, your firm needs to drastically cut back, and downsize up to 40% of its Copyright Cengage Learning. Powered by Cognero.

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Chapter 17: Downsizing and Post-Termination Issues workers. The firm has a reputation and tradition of being a firm that rewards the good skills and loyalty of its workers, and many have been with your firm for more than 30 years. The firm has been in your family for more than 100 years, and you are the 3rd generation CEO. Frankly, what would help the most is to lay off all of those workers who are earning in excess of $80,000/year, retaining those who are earning between $40,000 and $50,000/year. That would reduce your overhead dramatically (and your health insurance costs). But almost all of the workers who earn in excess of $80,000 are aged 50 or over, and unlikely to ever find comparable jobs elsewhere. Which of the following options would be consistent with your firm’s core values and its long-term survival? a. Downsize all workers making in excess of $80,000/year; since salary is the only consideration, the action is legal b. Offer significant early retirement packages in exchange for a waiver of claims to workers earning in excess of $80,000/year; it may cost you in the short term, but it is consistent with your family’s legacy and the firm’s core values, and ultimately will help the firm’s long-term survival c. Do a targeted review of the skill sets of all employees, including those earning less than $80,000/year, to determine where there is an overlap and you can afford to let people go without damaging the firm’s knowledge and skill base; downsize the people who are earning the most in each skill set, whatever their ages d. Either b or c might be consistent with your core values and long-term survival ANSWER: d 24. Regarding restrictive covenants, which of the following statements is correct? a. Restrictive covenants help protect an employer’s business assets b. Restrictive covenants are upheld only for top level managers and CEOs c. Restrictive covenants help employees secure a new position in a different industry d. Restrictive covenants help employees secure a new position in the same industry ANSWER: b Essay 25. Why is each of the following good legal advice? a. Before outsourcing or relocating work to another plant, unionized employers must negotiate with their employees’ unions. b. Employers should have clear, objective criteria for deciding which employees to downsize. c. Whenever possible, employers should offer employees selected for downsizing the opportunity to transfer to other facilities. d. Employers should be careful when executing waivers of legal claims in exchange for early retirement offers.

ANSWER: Answer a: NLRA, duty to bargain in good faith – Business decisions that entail work being performed elsewhere are typically mandatory topics of bargaining.

Answer b: ADEA, age discrimination – Clear criteria, systematically applied should reduce the chance that age or other protected class characteristics affect termination decisions and result in disparate treatment.

Answer c: WARN Act – “affected employee” – the offer of an opportunity to transfer in the face of a plant closing or mass layoff will often mean that there is no employment loss bringing the Act’s provisions into play. Age discrimination, disparate treatment – if transfers or other options are offered to younger employees, then older employees cannot be excluded; unemployment insurance claims can be avoided.

Answer d: ADEA, as amended by the Older Workers Benefit Protection Act. The ADEA has numerous exacting requirements for waivers: 45 days to decide (group offer), a clearly stated waiver, opportunity to retract the waiver, a written information on plan eligibility requirements, etc.

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Chapter 17: Downsizing and Post-Termination Issues 26. What are some of the tools that you can use to part ways with an employee on a friendly basis, and avoid trouble and lawsuits?

ANSWER: No doubt students will become creative with this question. But among the tools available are severance payments, agreed letters of reference, letters confirming that the employee is eligible for unemployment insurance, nondisparagement agreements, the use of an office while the employee looks for a new job, a negotiated letter of reference, a nonsolicitation agreement, and a noncompetition agreement.

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