Employment Law-Final Outline

Employment Law – Final Outline
 At-Will Employment
o Doctrine and Presumption
 RULE: Employers and employees have a mutual right to end the relationship at any time without notice and for any reason (good or
bad)
 Outside of a contract or statute there is no obligation on the employee or employer to give notice; there is no requirement of
good cause
 EXCEPTIONS  contract and statute based exceptions
o Contract-based Exceptions
 RULE: Contract requires set term and/or notice and/or limits reasons for termination or resignation.
 Example  tenure
 Savage v. Spur Distribution Company
 Did a promise of “permanent employment” create a contract-based exception to the at-will presumption?
o Facts: Savage was told the job was permanent; promise induced him to accept the job; Argued his satisfactory
performance and move was consideration. Spur relied on at-will presumption as defense.
 Court  No. Savage was “at-will” despite permanent employment statement.
o Promise was nothing more than employment to continue indefinitely subject to the continuing satisfaction of both
parties; no clear + objectively manifested intent to override
 Consideration  not valuable
o Employment is at will of both parties and may be terminated by either at any time;
 Except  a contract for employment with a definite period of time (and valuable consideration)
 Must have clear + objectively manifested intent to override the presumption
o Statute-based Exceptions  Created by legislature
 RULE: Federal, state, or local laws require notice and/or limit reasons for termination or resignation
o Relationship of State Unemployment Benefits
 Employers pay payroll percentage into state’s unemployment fund
 Claim history determines the percentage
 Fired or laid off employees file for unemployment benefits
o Amount capped***
 Rule: Unemployment = fairness inquiry only and at-will status is irrelevant
 Generally  resignations cannot get unemployment benefits (your choice)
o UNLESS forced in some way; resignation  constructive discharge
 Constructive discharge: a reasonable employee would have quit for the same reasons
o Classification of Employee vs. Contractor
 Classification matters to workers and employees because many laws are only applicable to employees, such as:
 Federal and state: labor laws, tax withholding laws
 State workers’ compensation laws, unemployment benefits, etc.
 Classification determined by  Agency/”Control” Test
 Employment relationship:
o Principal-Agent  business has the right to control the “manner or means” of work/worker
 Contractor relationship:
o Not principal-agent  business lacks the right to control the “manner or means” of work/worker
 Worker  significant entrepreneurial opportunity for gain or loss
 Relevant Factors:
o Amount of control or supervision regarding work details
 More supervision  more likely to be an employee
o Specialized skill for work
 More skilled  more likely to be a contractor
o Work instrumentalities or tools
 Does the company or worker provide?
 Company provides  more likely to be an employee
o Work location (on or off company site)
 Off company site  more likely to be a contractor
o Duration of work and parties’ relationship (short or long)
 Long  more likely to be an employee
o Method of payment (regular pay or project-by-project)
 Regular pay  more likely to be an employee
 Importance of compensation/remuneration; unpaid interns?
 O’Connor v. Davis  Title VII statute (harassment), an unpaid intern is not an employee
o Right to hire assistants or subcontract work
 Yes  more likely to be a contractor
o Type of work
 Is the type of work part of the company’s regular business or outside the scope?
 Outside of scope  more likely to be a contractor
o Entrepreneurial opportunity
 Do workers have their own distinct occupation or business
 If yes  more likely to be a contractor
o Benefits provided (insurance, vacation)
 If yes  more likely to be an employee
o Party intent and belief
 Tax treatment (1099 form v. W-2 form)
 1099  contractor
 W-2  employee
 Courts delve into relationship even if the parties agreed to be one of the other at the beginning
 Cotter v. Lyft
o Cotter sues for unpaid gas, argues that he needs to be reimbursed under CA state law; Court  must go to jury b/c of
conflicting factors
 Contract and Tort-Based Exceptions to At-Will Employment
o Contract-Based Exceptions
 Express Agreement (Written and Oral) & “Cause”
 Clear contract language: manifest intent to alter at-will termination rights as to:
o Timing, and/or  if there is only a duration of employment term, the court will imply a “cause” term
o Notice, and/or
o Reasons/Grounds  define “cause” or “good reason”
 Employer prefers a broad definition
 Employee prefers a narrow definition
 Written or oral contracts must manifest clear contractual intent to alter at-will termination rights
o Intent via objective (reasonable person) standard:
 Language: clarity of “promise” vs. mere expression of optimism/”hope”/puffery
 Circumstances and Context
 Nature of the position  executive vs. non-unique
 Interview and negotiation specifics (security discussed vs. not) and consideration
 Implied Agreement via Handbooks or Policies
 Promissory Estoppel (Reliance)
 Elements  Restatement §90
o 1) Promise  words, acts, conduct that would signal a commitment to an objective reasonable person
o 2) Reasonable expectation to induce action or forbearance (at the time the promise was made)
o 3) Actually induces action or forbearance
o 4) Avoid injustice only by enforcing promise  is there any other way to treat the promise fairly?
 State-Dependent Rules
o Rule #1: Promissory Estoppel/reliance cannot be used as basis to enforce at-will employment offer
o Rule #2: Promissory Estoppel/reliance can be used as basis to enforce at-will employment offer
 Relevant Damages
o Expectation damages?
o How much lost pay?
o Reasonable certainty?
o Reliance damages?
o Relocation/other expenses?
o Tort-Based Exception (Compensatory and Punitive Damages)
 Wrongful Discharge Against Public Policy  Mandates of Public Policy should impose some limits on unbridled discretion
to discharge at-will employee (Majority rule)
 To Establish a Public Policy Claim
o 1) articulate public policy at issue
o 2) identify sources of public policy (where?)
 Typically state statutes
o 3) Explain how firing frustrates public policy
 3 Categories (in Jurisdictions that allow the exception)
o 1) Employee refuses to perform illegal act
o 2) Employee exercises explicit legal right or performs explicit legal duty
o 3) Employee reports or blows whistle on public wrong
 Minority Rule  Wrongful discharge against Public Policy claims should not exist as limit on at-will
 Mistakes and Public Policy Claims
o Fired whistleblowers  employee’s belief must be objectively reasonable and in good faith
o Firing employer  employer’s belief must be objectively reasonable and in good faith
 Statutory Exceptions to At-Will Employment
o Federal Employment Discrimination Laws
 Statutory Basics  1) covered employers; 2) protected employee activity(-ies) or class(-es); 3) prohibited conduct; 4)
administrative prerequisites; 5) potential damages and remedies
 Title VII of Civil Rights Act of 1964
o Civil Rights Act of 1991 (1991 Amendments)
o Pregnancy Discrimination Act of 1978 (PDA)
o 1) Covered Employers  15 or more (full time or part time) employees
 Per working day in “20 or more calendar weeks” in “current” calendar year (year of discrimination)
or “preceding” year
o 2) Protected employee activity(-ies) or class(-es)
 Classes  race, color, religion, sex, or national origin; (2020-)  sexual orientation and gender
identity necessarily entails sex considerations
 PDA  sex = pregnancy, childbirth, or related medical conditions
 “Whistleblower”-type activities  participation clause and opposition clause
 Participation clause  “made charge, testified, assisted or participated… in investigation
proceeding or hearing
o External, formal claim or lawsuit activity
 Opposition clause  “opposing any practice made unlawful employment practice”
o Internal, informal claim or complaint activity
o 3) Prohibited conduct as to protected activity or class?
 1) Fail or refuse to hire because of a protected class
 2) Discharge because protected class
 3) Otherwise discriminate regarding compensation, terms, conditions, or privileges of employment
because protected class
 Intent based
 Effect/impact based claims
 Harassment
 4) Retaliate because protected activity
o 4) Administrative pre-requisites before filing a lawsuit in federal district court
 1) Must file “charge of discrimination” with EEOC
 Within 180 days from date of (most recent) alleged discrimination
o Extension to 300 days when it can be handled by a state statute and state
enforcement agency
 2) EEOC Investigation
 Employer “position statement” and documents
 Possible on-site interviews
 EEOC’s file  all discoverable and obtainable through FOIA
 3) EEOC Determination
 Cause  likely violation vs. no cause  no likely violation
o Can also conclude insufficient information, but rare
o Cause  EEOC tries conciliation (settlement)
o No Cause (or no settlement)  EEOC issues notice (of right to sue)
 Plaintiff may request notice 180 days after filing
 EEOC may file lawsuit  prefers cases with large employers or cutting edge
legal theory
 4) File Title VII Lawsuit
 Must file within 90 days after notice given
o 5) Potential damages and remedies
 Equitable, make whole remedies
 Back pay  between date of discrimination and date of judgement
o Offsets for interim earnings, duty to mitigate
 Reinstatement (or front pay in lieu of reinstatement)  after date of judgement, into the
future)
 Supplemental (Legal) damages
 Civil Rights Act of 1991 (42 USC §1981a)
o Compensatory damages  future pecuniary losses, emotional pain and suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other pecuniary losses
 Only in intentional cases, not disparate impact
o Punitive damages  subset of intentional cases with malice or reckless indifference
to federally protected rights of employee
o Damage caps for compensatory PLUS punitive  varies by size of employer (# of
employees):
 15-100 employees  $50k cap
 501+ employees  $300k cap
 Attorneys’ fees and costs
 42 USC §1981 (1866)
o 1) Covered Employers  no size threshold for employers (*2+); making and enforcing contracts includes
employment
o 2) Protected employee activity (-ies) or class(-es)
 Classes  race and national origin (including majority groups)
 Whistleblower -type activities  not explicitly protected; SCOTUS: implicitly protected
o 3) Prohibited conduct as to protected activity or class
 Discrimination regarding making a contract
 Implied whistleblower protection, so retaliation is prohibited
o 4) Administrative prerequisites prior to filing a lawsuit in federal district court
 No EEOC process for race claims, but usually wait for the EEOC process to run on the Title VII claim
to file both together
 Statute of limitations  varies by jurisdiction, apply state’s breach of contract SOL
 Equitable damages  back pay, front pay
 Compensatory damages
 Punitive damages
 No damage caps  potentially most lucrative claim
 Age Discrimination in Employment Act of 1967 (ADEA)
o 1) Covered Employers  20 or more employees
o 2) Protected employee activity (-ies) or class(-es)
 Classes  People over the age of 40
 Whistleblower -type activities  participation clause and opposition clause
 Discriminate regarding compensation, terms, conditions, or privileges of employment because of
protected class
 Intent based
 Effect/impact-based
 Harassment
 Retaliate because of protected activity
enforcement agency
legal theory
 Equitable damages
 Supplemental (still equitable) damages
 Liquidated damages  shall be payable only in the case of willful violations [i.e. knowingly
violate or recklessly disregard ADEA rights]
o $ for $ match with lost pay (back pay)
o Punitive purpose
 Americans with Disabilities Act of 1990 (ADA)
o 1) Covered Employers  15 or more employees
o 2) Protected employee activity(-ies) or class(-es)
 Class  qualified individual with a disability
 Qualification centers on an individual’s ability regardless of their impairment or disability to
do the essential function of the job with or without accommodations
 Disability
o 1) Actual “disability”  a physical or mental impairment that substantially limits one
or more major life activities to such an individual
 Determination shall be made without regard to ameliorative effects of
mitigating measures like medication, hearing aids, prosthetics, etc.
 Ordinary eyeglasses and contacts exempt
o 2) “Record of”  a record of such an impairment
 Even without a current, actual “disability”
 Prior “record” or history of “actual disability” sufficient
 Even covers “misclassified” record/history
o 3) “Regarded as”  being regarded as having such an impairment
 Even without current “actual disability”
 Mere employer perception, stereotype, or belief of any “impairment”
 Even covers “wrong” or “incorrect” beliefs
 Whistleblower -type activities  participation clause and opposition clause
 Discriminate regarding compensation, terms, conditions, or privileges of employment because of
protected class
 Intent based  failure to provide reasonable accommodation
 Effect/impact-based
 Harassment
 Retaliate because of protected activity
enforcement agency
legal theory
o 5) Potential Damages and Remedies
 Equitable damages  back pay and reinstatement (or front pay in lieu of reinstatement)
 Supplemental “Legal” Damages
 Civil Rights Act of 1991 (42 USC §1981a)
o Compensatory damages  future pecuniary losses, emotional pain and suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other pecuniary losses
 Only in intentional cases, not disparate impact
o Punitive damages  subset of intentional cases with malice or reckless indifference
to federally protected rights of employee
o Damage caps for compensatory PLUS punitive  varies by size of employer (# of
employees):
 501+ employees  $300k cap
 Good faith defense in accommodation cases -> no legal damages if the employer made “good faith
efforts” in consultation with the person with the disability… to identify and make reasonable
accommodations
 Claims and Defenses
 Disparate Treatment (Intent)  intent-based claim where the employer has the intent to treat a person
differently and worse “because of” being a member of a protected class [key = discriminatory intent]
o Elements of Disparate Treatment Claim
 1) Employee’s protected group, class, or trait
 2) Employer adverse action (AA) against employee
 3) Employer discriminatory intent as cause of adverse action
 Proof of intent
o Direct evidence  proves intent automatically
 Statements  by defendant’s decision making agents which clearly reflect
plaintiff’s protected trait or class and are tied to (in conjunction with) adverse
action regarding the plaintiff
o Circumstantial evidence  creates inference of intent
 Comparator evidence: treatment of employees outside of plaintiff’s protected
class but “similarly” situated
 Prior treatment evidence: past treatment of employees
 Data/statistical evidence: the composition of the employer’s workforce, etc.
 Decision-maker evidence: same actor inference (same actor who hired P);
actor member of P’s protected class?
 False reason evidence: articulated reason false or untrustworthy of credence
 if P proves then fact finder is permitted to infer ultimate fact of intentional
discrimination
 Replacement evidence: position filled by person in P’s protected class; ADEA
 age difference between P and replacement
 Decision-maker stray remark evidence: non direct evidence of comments by
decision-maker regarding P’s protected class
 Failure to follow procedure/policies: employer compliance with their own
policy
 Degree of unreasonableness of decision: highly unusual or idiosyncratic vs.
within the realm of business judgment
 Circumstantial Evidence Only  McDonnell Douglas Burden Shifting Framework for DT
(Disparate Treatment) Claims
o 1) Prima Facie Case  Employee establishes PF case and has initial burden:
 1) Employee belongs to protected class
 2) Employee applied + qualified for available position (or performed
satisfactory work  non-hire cases)
 3) Employee was rejected (or adverse action  non-hire cases)
 4) Position remained open (filled/sought to fill position)
 Effect of the PF case  rebuttable inference or presumption of intent-based
discrimination
o 2) Rebuttal via Legitimate, Non-Discriminatory Reason(s)  Employer must articulate
some legitimate nondiscriminatory reason or explanation for adverse action
 Burden is light  only production/articulation; no burden to persuade
 Effect of legitimate nondiscriminatory reason  rebuts inference or
presumption  drops from the case
o 3) Showing Reason = Pretext for Discrimination  Employee has a fair opportunity to
show the employer’s stated reason is pretext for sort of discrimination that is barred
by Title VII
 Cover up for discriminatory decision
 Plaintiff has the burden of proof of production and persuasion
 Relevant evidence to show “pretext for discrimination”  1) if other
employees involved in acts of comparable seriousness… were nevertheless
retained or rehired by employer; 2) employer’s treatment of plaintiff during
the term of employment; and 3) general policy and practice with respect to
minority enjoyment [stats show general pattern of discrimination]
o Intent in Mixed Motive Cases
 Mixed Motive Cases  multiple reasons for adverse actions-some discriminatory and some non-
discriminatory; proves 3rd McDonnell Douglas element  intent as casual reason
 Title VII Mixed Motive Cases
o 1) Plaintiff’s initial burden
 Motivating role or factor  1% - 99%
 Concurrence (substantial role)  less than 50% and more than 1%
 Dissent (but-for, determinative cause) 50.1% to 99%
 Adopted stance  Plaintiff demonstrates race, color, religion, sex or national
origin was a motivating factor
 Plaintiff wins if proves 1% of the decision was based on discrimination
 Bulk intent burden on the employer
o 2) Employer response to burden and effect
 Affirmative defense  Defendant demonstrates that it would have taken
same action in absence of impermissible motivating factor
 Burden of production and persuasion
 (greatly) Limited liability if the employer shows the same action/decision
affirmative defense, but employer will still pay something
 Available remedies  declaratory/injunctive relief and attorneys’ fees and
costs
 Foreclosed remedies  damages or reinstatement
 50/50% employer loses
 Non-Title VII Cases (§1981, ADA, ADEA)
o Sufficient cause of adverse action  but for determinative causal role  51% or
more
o No affirmative defense because the bulk of the burden is not on the employer (bulk
intent burden on employee)
o 50/50% chance P loses
 Disparate Impact (Effect) [good faith reason + adverse observed effect]  practices fair or facially neutral in form,
but discriminatory in operation
o Basic Elements
 1) Facially neutral employment practice or job criterion
 2) Causes or creates
 3) Statistically significant adverse impact or effect on protected group, class, trait, or characteristic
o Likely to create class actions;
o Does not exist under §1981; ONLY  TITLE VII; ADA; and ADEA
o Affirmative Defense  Business necessity  neutral employment practice must be:
 1) job-related  related to job performance; AND
 2) consistent with business necessity  manifest and demonstrable relationship to successful
performance of job
 ADEA  no liability if employer’s practice is based on reasonable factors other than age
o Damages  equitable damages (back pay, front pay) + attorneys’ fees
o Framework for DI Claims:
 1) Employee Prima Facie Case  Plaintiff must demonstrate employer uses particular neutral
employment practice that causes disparate impact based on a protected trait.
 EEOC 4/5 Rule  selection for any race, sex or ethnic group that is less than 4/5 or 80% the
rate of the group with the highest selection rate will be generally regarded as evidence of
adverse impact
 2) Employer Affirmative Defense
 Title VII  Employer demonstrates neutral practice that is job related and consistent with
the business necessity
 ADA  Qualification standard, tests or selection criteria is job related and consistent with
the business necessity
 ADEA  No liability if employer’s differentiation or practice is based on reasonable factors
other than age
 MUST PERSUADE + PRODUCE
 3) Employee Rebuttal  Title VII only  P demonstrates: 1) alternative employment practice
existed, 2) with less adverse impact (while achieve same business ends) and 3) employer refuses to
adopt the practice
 Harassment (Intent)  Form of discrimination affecting terms, conditions, or privileges of employment
o Types
 Quid pro quo (this for that)  supervisor’s fulfilled threat or promise regarding conditioning
concrete employment benefits on sexual favors
 Hostile work environment  conduct which creates abusive or offensive work environment based
on protected trait
 Created by supervisors, co-workers and third-parties
 Subjective and Objective standards
o Subjective  conduct was uninvited, unwelcome, offensive personally to employee
(consider complaints, reactions, provocative speech and dress, participatory acts)
o Objective  conduct so severe or pervasive a reasonable employee would find it
created an abusive, hostile work environment (consider frequency, humiliation,
physical threat, offensive utterance)
o Protected Traits  Sex, race, color, national origin, religion, age and disability
o Available Damages  All  equitable (reinstatement/front and back pay), compensatory, punitive, and
attorney’s fees
o Harassment Claims  Spectrum of Employer Liability Standards
 Quid Pro Quo  always supervisor based
 Supervisor has the authority to fulfill the threat or promise
 Always an employment act
 Strict, automatic, vicarious liability standard
 Based on agency principles
 Hostile Work Environment  by Supervisor
 Strict automatic vicarious liability standard
 Affirmative defense ONLY  if supervisor’s conduct did not result/culminate in a tangible
employment action (TEA) against plaintiff
o 1) Employer exercised reasonable care to prevent and correct promptly any harassing
behavior AND
o 2) the employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided… or to avoid harm otherwise AND
 failure to use complaint procedure provided normally satisfies this element
o Prevention -> policy
o Correction -> investigation and disciplinary action
 Hostile Work Environment  by non-supervisors
 Negligence liability standard
o Under a duty if aware or should have been aware AND
o Did not act reasonably to prevent and correct
 Retaliation (Intent)  Greatest # of EEOC charges filed relate to retaliation
o Elements
 1) employee’s protected activity (under participation or opposition clause)
 If employer’s act was actually not unlawful must have:
o 1) honest belief  employee had good faith belief that reported conduct was
unlawful under federal anti-discrim. law AND
o 2) reasonable belief  employee’s belief was reasonably incorrect (at least
reasonably in believing that the conduct was actually unlawful
 2) employer adverse action against employee or certain third parties
 3) employer retaliatory intent as cause of adverse action
 Key  intent to treat differently because of protected activity
 Evaluate under McDonnell Douglas Framework
o MM Retaliation Case Plaintiff’s Initial Burden
 Title VII: DT  motivating factor; Retaliation  but for
 ADEA: DT  but-for; Retaliation  but for
 ADA : DT  but for; retaliation  but for
 Section 1918: DT  but for; Retaliation  but for
o Family and Medical Leave Act (FMLA)  12 weeks of leave if applicable
 Statutory Basics
 1) Covered employers
o Private sector employers  50+ employees (full or part time) per working day in 20 or more calendar
weeks in current or preceding calendar year
o Public sector employers  any public agency (government employer)  regardless of size
 2) Protected employee activity(-ies) or class(-es)
o Eligible Employees for FMLA rights and activities
 1) employed by employer at least 12 months before leave starts AND
 2) work for employer 1250+ hours (25hrs/wk) in prior 12 months before leave starts AND
 3) work at worksite of 50+ employees
 3) Right to Request/Receive FMLA Leave
o Duration  total of 12 workweeks of leave during any 12 month period for QUALIFYING REASONS
 Employer bears the burden of putting the 12 month period in their FMLA policy. If they fail to do so,
the court interprets it in favor of the employee
o Qualifying reason
 1) Birth of a child and post-delivery care  expires @ end of 12-mo period beginning on date of
birth or placement
 2) Adoption or foster care placement of child  expires @ end of 12-mo period beginning on date
of birth or placement
 3) Care for spouse, son, daughter, or parent with serious health condition
 Spouse  husband or wife as case may be; marriage as defined per state law where
employee resides
 Son/daughter  biological, adopted, or foster child, stepchild, legal ward or child of person
standing in loco parentis under 18 (if over 18  incapable of self care)
 4) Own serious health condition which renders the employee unable to perform functions of
position
 Illness, injury, impairment or physical or mental condition that involves inpatient care in a
hospital, hospice, or residential medical facility or continuing treatment by health care
provider
o Paid or unpaid  Leave granted may consist of unpaid leave
 Federal Employee Paid Leave Act of 2019  federal employees receive 12 weeks of paid parental
leave for qualifying reasons 1 & 2.
 Employee may elect or the employer may require to substitute any accrued paid vacation leave,
personal leave, family leave, or medical or sick leave for unpaid FMLA leave.
o Take all at once or intermittent option? Total leave, or reduced option
 Reduced leave schedule  usually reduces hours per workweek or hours per workday
 Qualifying reasons 1-2 Shall not be taken by an employee intermittently or on reduced
leave schedule
 Qualifying reasons 3-4  may be taken intermittently or on reduced leave schedule when
medically necessary
 Process
 Employee: QR 1-2  shall provide employer with no less than 30 days’ notice pre leave or as
much as practicable if less than 30 days; QR 3-4  if planned treatment  same notice as 1-
2 and reasonable effort to schedule treatment so as to not unduly disrupt employer’s
operations
 Employer  Where serious health condition, employer may require that a request for leave
be supported by certification issued by the healthcare provider of employee or of son,
daughter, spouse, parent of employee
o Only applicable to QR 3 & 4
 Two spouses one employer  two spouses giver birth to or adopt/foster a child; or each has a
parent with a serious health condition and need to care for him or her  two spouses must divide
the 12 weeks amongst themselves
 Aggregate # of workweeks of leave to which both may be entitled may be limited to 12
workweeks during any 12-mo period.
 Child with serious health condition or at a different time during the year both spouses each
have a serious health condition and incapable of working due to the condition and need to
care for spouse during their condition  limitation does not apply and each entitled to full
12 weeks of FMLA
o Right to be restored, reinstated (post-leave) to same position
 Upon return from leave employee is entitled to be restored to:
 Same position of employment held when leave commenced AND
 Equivalent position with equivalent employment benefits, pay, and other terms and
conditions of employment
o Right to maintain health coverage during leave
 Employer shall maintain any group health plan coverage at the same level and under the same
conditions as if the employee had continued to work
 Employer has a right to recover paid health coverage premiums if employee fails to return
from leave after its expiration and the failure is not due to continuation, recurrence, or onset
of serious health condition or other circumstances beyond control of employee
o Right to engage in whistleblower activities
 Participation clause  “made charge, testified, assisted or participated… in investigation
 External, formal claim or lawsuit activity
 Opposition clause  “opposing any practice made unlawful employment practice”
 Internal, informal claim or complaint activity
o Prohibited Conduct as to protected activity or classes
 1) not discharge or in any other manner discriminate (retaliate) against any individual because of
protected opposition or participation activity
 Retaliation prohibition
 2) not interfere with retrain or deny exercise of any right provided under FMLA
 Interference prohibition
o Administrative Pre-Requisites before prior to filing lawsuit in federal district court
 None  may file lawsuit immediately; statute of limitations  2 years from the date of last event
constituting violation; 3 years if willful violation
 Administrative option  may file claim w/ Dept. of Labor Wage and hour Division
 Investigation and attempt to resolve/settle
o Potential Damages
 Equitable damages  wages, salary, employment benefits, or other compensation denied or lost
via FMLA violation (plus interest) + reinstatement and promotion
 Back pay + reinstatement
 If denied FMLA leave  actual monetary losses sustained  cost of providing care up to sum equal
to 12 weeks of wages or salary (plus interest)
 Supplemental (legal) damages  liquidated damages
 No liquidated damages if employer violated FMLA in good faith and had reasonable grounds
for believing no violation
o National Labor Relations Act (NLRA)
o Fair Labor Standards Act (FLSA)
o Worker Adjustment & Retraining Notification Act (WARN)
 Contractual and Other Limits on Employee Rights

Employment Law-Final Outline

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