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EEO & Discrimination Law Chs. 12, 14, 20, 22

Across
In order to enforce OHSA standards, OHSA may conduct inspections, investigations, and may require employers to keep ___ of and to make periodic reports to OSHA on occupational injuries and illnesses.
Employees covered by the FLSA are entitled to ___ pay at 1 and 1/2 times their regular rate for hours worked in excess of 40 hours per workweek.
The ___ of an OSHA standard must be examined from two perspectives: technological ___ and economic ___. OSHA can force an industry to develop and diffuse new technology to satisfy precise permissible exposure limits to toxic materials or harmful agents that have never before been attained, if OSHA can present substantial evidence showing that companies acting vigorously and in good faith can develop the technology. The Secretary must carry the burden of proving both technological and economic ___ when promulgating and enforcing standards governing toxic materials and harmful physical agents.
The NLRB's Administrative Law Judges (ALJs) are independent of both the Board and the general counsel. ALJs conduct ___ and issue initial decisions on unfair labor practice complaints issued by NLRB regional offices. ALJ decisions may be appealed to the NLRB's Board, which functions as a specialized court of appeal.
To reach the goal of providing hazard-___ workplaces for all employees, the OSHA authorizes the Secretary of Labor to promulgate occupational safety and health standards regulating the health and safety of working conditions.
One preventative measure that employers should take to prepare for the threat of potential workplace violence is to prepare ___. In order to adequately prepare ___, it is necessary to know in advance which employees, if any, will need assistance. The EEOC has released guidelines concerning the creation of emergency ___ that comply with the Americans with Disabilities Act.
The ___ created three federal agencies for administration and enforcement of that statute. The Occupational Safety and Health Administration is the primary agency created for enforcement of the act, and it has the authority to:   promulgate standards; conduct inspections of workplaces; issue citations for violations; and recommend penalties. The National Institute of Occupational Safety and Health is an agency created to conduct research and promote the application of the research results to ensure that no worker will suffer diminished health, reduced functional capacity, or decreased life expectancy as a result of their work experience. The Occupational Safety and Health Review Commission is a three member quasi-judicial agency created to adjudicate contested enforcement actions of OSHA. (The OSHRC can assess and enforcement the penalties that OSHA ALJ recommends.) The decision of OSHRC can be appealed to the U.S. courts of appeals.
The NLRB handles two kinds of legal questions: 1) Those alleging that an unfair labor practice has taken place in violation of the act and, 2) ___ questions concerning whether and, if so, how employees will be represented for collective bargaining.
The NLRB's regional directors are authorized by the Board to: decide whether a question concerning representation exists; determine the appropriate collective bargaining unit; order and conduct an ___; certify the ___’s results; and resolve challenges to ballots by making findings of fact and issuing rulings.
Under the FLSA, employees generally may not release employers from liability for less than the full amount owing; and normally employees may not ___ their rights to compensation under the act. Fines may also be levied against employers who keep inadequate wage and hour records. (Explaining what these provisions accomplish and why they are important would be good essay questions.)
The National Labor Relations Act's Section 7 allows bargaining through representatives of employees’ own choosing, and allows engagement in concerted activities for the purpose of collective bargaining or other mutual aid or protection. To protect these basic rights of employees, the act prohibited certain practices of employers that would interfere with or prevent the exercise of such rights. Those practices were designated ___, and the act listed five of them: interference with, or restraint or coercion of, employees in the exercise of their Section 7 rights; domination of, or interference with, a labor organization (including financial or other contributions to it); discrimination in terms or conditions of employment of employees for the purpose of encouraging or discouraging union membership; discrimination against an employee for filing a charge or testifying in a proceeding under the act; and refusal to bargain collectively with the employees’ legal bargaining representative. (Describing the history of the NLRA and what its basic provisions are would be a good essay question.)
The organizations that became the dominant organizations of the American labor movement in the early 20th century were the American Federation of Labor and the Congress of Industrial Organizations. They merged together in 1955 to form the ___.
Categories of employees the FLSA regs specify are ___ from (do not benefit from) the FLSA’s wage and hour requirements include executives, administrators, professionals, outside salespeople, and certain computer workers (so long as they are paid at least $684 per week), certain highly compensated employees, teachers, and unpaid interns.
The EEO laws, Title VII, ADEA, ADA, Equal Pay Act have a primary focus of preventing employers and other covered entities (unions, employment agencies) from engaging in ___ against an individual because of their protected characteristics under the statute. They all also provide a right of action or remedy where the employer engages in ___ against an employee for availing themselves of the rights guaranteed by that law, in their anti-retaliation provisions. But all of the federal employment laws we have discussed this semester, including those whose primary focus are topics other than ___ based on a protected characteristic, for example the FLSA (wage and hour), NLRA (collective bargaining), OSHA (safety and health), like the EEO laws, all contain some anti-___ provisions. They all contain anti-retaliation provisions, which are in essence anti-___ provisions because prohibit an employer from engaging in ___ against an employee for availing themselves of the rights guaranteed by that law. (making a complaint, asking for compliance with the law, etc.) (It would be a good idea to be prepared for an essay on this topic.)
In 1842 in the landmark decision Commonwealth v. Hunt, the Massachusetts State Supreme Court acknowledged that a labor organization was ___ per se an illegal conspiracy. The court held that union activity is ___ an illegal conspiracy as long as the objectives of the activity, and the means employed to achieve those objectives, were ___ illegal. (For example, a strike and a picket line are ___ unlawful, but threats of physical harm for crossing the picket line are unlawful.) After 1842, the legality of labor unions became accepted by mainstream judicial opinion.
The FLSA, enacted in an era of heightened racial inequality, initially ___ from coverage agricultural workers, tipped workers, and domestic workers. A 1974 amendment extended coverage to domestic workers. The 1977 amendments eliminated the separate lower minimum for large agricultural operations. Some other methods of compensation are allowed (tipped, piece rate, game rate for umpires and referees, gig rate for musicians, etc.), but current DOL Division of Wage and Labor regulations require that wages averaged over a workweek equal or exceed the FLSA's minimum wage.
One source of much FLSA litigation has been the issue of whether employees are to be paid for the time required for an employee to prepare to perform the job and the time required to end the day’s performance. This issue has arisen, for instance, in situations where the shifts of incoming and outgoing retail clerks must effectuate a transfer of the store’s cash register between their shifts. This issue has also arisen where miners and factory workers must don uniforms or equipment in a locker room at the start of their shifts and perhaps shower and change at the end of their workdays. The ___ Act (1947), amended the Fair Labor Standards Act (FLSA) to provide that preliminary or post-work activities are to be included in compensable time only if they are called for under contract or industry custom or practice.
Down
The Taft-Hartley Act of 1947 amended the NLRA to outlaw the closed shop, a term describing an employer who agrees to hire only employees who are already union members. This amendment also clarified that employees have the right not just to engage in collective activity, but to ___ from it.
When an inspection leads to the discovery of a ___ of a standard under the OSHA, the employer is issued a written citation. If the employer fails to correct a cited ___after it has become final, fines and penalties may be imposed.
States may pass laws that supplement federal wage and hour laws and regulations, provided the state law expands (does not ___) the rights accorded to workers by the federal scheme.
Under the FLSA limitations on child labor, ___ aged 16-18 may work in certain nonhazardous occupations. ___ aged 14-16 may be employed in non-manufacturing or non-mining occupations for limited hours outside school hours. ___ under age 14 can be employed only in agriculture under specific limitations and with parental consent. Specific exemptions from the category of oppressive child labor include the employment of: newspaper carriers who are engaged in delivering papers to consumers; ___ who are hired as actors or performers in movies, radio, television, or theatrical productions; and ___ who are employed by their parents, or persons standing in the place of parents, in occupations other than manufacturing, mining, or others identified as hazardous by the Secretary of Labor.
The FLSA prohibits “___” child labor, which the act defines by using age restrictions and identifying hazardous occupations.
The FLSA prohibits employing minors under ___ 18 in any occupation that the Secretary of Labor identifies as hazardous. Occupations identified as hazardous currently include: mining-related occupations; occupations in or about plants manufacturing explosives or articles containing explosive components; occupations involving operation of motor-driven hoisting apparatus; logging or saw milling occupations; occupations involving exposure to radioactive substances; occupations of motor-vehicle operator or helper; occupations involving operation of power-driven woodworking machines; occupations involving operation of power-driven metalworking, forming, punching, or shearing machines; occupations in or about slaughtering or meatpacking plants or rendering plants; occupations involving the manufacture of brick, tile, or related products; occupations involving the operation of circular saws, handsaws, and guillotine shears; and occupations involving wrecking, demolition, and ship-breaking.
One early response by employers to the labor movement was to require employees to sign ___ contracts, which are employment contracts requiring employees to agree not to join a union, making non-membership a condition of employment.
Upon enactment in 1938, the FLSA's minimum wage was $0.25 per ___, with scheduled gradual increases for the next 7 years to $0.40 per ___. As adjusted for inflation, the minimum wage was the highest, had the most purchasing power, in 1968, when the $1.60 per ___ minimum wage was approximately $12 in current U.S. dollars. The current minimum wage, set in 2009, is $7.25/___.
The Occupational ___ Act (1970) has two broad goals: To assure safe and healthful working conditions for working individuals; To provide a framework for research, education, training, and information in the field of occupational ___. to furnish their employees a workplace that is free from recognized hazards that cause, or are likely to cause, serious injury or death. The act also requires that employers meet the various ___ standards set under the act and keep records of injuries, deaths, accidents, illnesses, and particular hazards. (Describing this law and what it requires would be a good essay question.)
Section 8(a) of the ___, as amended, makes it illegal for an employer to engage in the following conduct: interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7; dominate, interfere with, or contribute financial or other support to a labor organization; discriminate in the hiring or terms or conditions of employment of employees in order to encourage or discourage membership in any labor organization; discharge or discriminate against an employee for filing charges or giving testimony under the ___. Section 8(b) of the ___, as amended, makes it illegal for unions to engage in the following conduct: restrain or coerce employees in the exercise of their rights under Section 7; restrain or coerce an employer in the selection of a representative for collective bargaining purposes; cause or attempt to cause an employer to discriminate against an employee in terms or conditions of employment in order to encourage (or discourage) union membership; refuse to bargain collectively with an employer; engage in secondary picketing or encourage secondary boycotts of certain employers; require employees to pay excessive or discriminatory union dues or membership fees; cause an employer to pay for services that are not performed; and picket an employer in order to force the employer to recognize the union as bargaining agent when the union is not entitled to recognition under the act.
A group of employees organized to bargain collectively for better pay, better working conditions, etc. is a ___.
The NLRB's Office of the ___ is an independent unit that directs the administrative and enforcement (prosecutorial) efforts of the 32 NLRB regional offices, who investigate charges and issue complaints of violations of the NLRA.
The concept behind the Fair Labor Standards Act began in the 1930s as a response to the ___, a time when about 25% of workers were unemployed, people lost their life savings due to bank failures, and many struggled to secure housing and food. Basic ideas that government could guard against business practices that exploit workers and harm the overall economy were catching on, including the ideas that: employers demanding longer hours from fewer workers left many unemployed; a person who is working full-time should not suffer in poverty without enough wages to have adequate food, clothing, and shelter; and underpaying child laborers disincentivizes employing adults at a livable wage, driving down wages for adult workers. Federal wage and hour legislation was a major campaign issue in the 1936 Presidential race. (Describing this history and the basic provisions of the FLSA would be a good essay question.)
Employees under the Occupational Safety and Health Act are protected from retaliation or ___ by their employer because they have exercised any rights granted by the act under Section 11(c)(1).
Much litigation under the FLSA has arisen over the FLSA's distinction between employees, who are covered by the Act's protections, and independent contractors, who are not. Courts employ the economic realities test to determine whether one is an employee for the purpose of entitlement to FLSA coverage. The ___ courts consider in applying this test include: the degree of the alleged employer’s right to control the manner in which the work is to be performed; the alleged employee’s opportunity for profit or loss depending on managerial skill; the alleged employee’s investment in equipment or materials required for the task, or the employment of helpers; whether the service rendered requires a special skill; the degree of permanence of the working relationship; and whether the service rendered is an integral part of the alleged employer’s business.
Approximately one-third of the American labor force was unionized in the early 1950s. Union membership has been slowly ___ since then. By 2009, only about 12 percent of the work force (public and private sector) were unionized.
The agency responsible for enforcing and administering the NLRA is the National Labor Relations ___. The NLRB has both prosecutorial and judicial functions.
The Supreme Court's decision in West Coast Hotel Co. v. Parrish (1937) that the State of Washington’s minimum wage law protecting women and children was constitutional was crucial to paving the legal path to enactment of the federal ___. This law, as amended, continues in force today, and deals with four wage and hour areas: minimum wages, overtime pay, child labor, and equal pay for equal work.
___ statutory provisions expressly exclude from coverage: individuals employed as agricultural laborers; individuals employed as domestic workers within a person’s home; individuals employed by a parent or spouse; Independent contractors (A person working as a separate business entity) supervisors; and individuals employed by employers subject to the Railway Labor Act. U.S. Supreme Court decisions additionally exclude from ___ coverage: managerial employees, persons involved in the formulation or effectuation of management policies; confidential employees, persons whose job involves access to confidential labor relations information; and supervisors, persons with the authority to direct, hire, fire, or discipline employees in the interests of the employer.
Pre-Civil War, most union activity was considered a ___ conspiracy to commit an act “injurious to trade or commerce” and illegal.
In 2005, seven major unions accounting for nearly six million members broke away from the AFL-CIO to form the Change to ___ Coalition. These seven include: The International Brotherhood of Teamsters; The Service Employees International Union; The Laborers’ International Union of North America; The United Brotherhood of Carpenters and Joiners of America; The United Farm Workers of America; The United Food and Commercial Workers International Union; and Unite Here. The Coalition seeks to revitalize the labor movement by putting greater efforts into organizing and adapting to the changing attitudes of twenty-first century American workers.
The FLSA prohibits retaliation against employees who invoke the statute’s protections, by making it illegal for an employer “to discharge or in ___ other manner DISCRIMINATE against ___ employee because such employee has filed ___ complaint or instituted or caused to be instituted ___ proceeding under or related to this chapter, or has testified or is about to testify in ___ such proceeding, or has served or is about to serve on an industry committee....” FLSA Section 215(a)(3).
Identifying from hypothetical scenarios or real cases the legal issues, laws involved, how to prove a violation of the law, potential employer defenses, and likely outcomes in court, would be good ___ questions.