PSY 792D-

1. PSY 792D- January 29

2. Overview Mediation/Settlement Discovery EEOC determination Conciliation Investigation Charge Appeal Decision Class certification Complaint Trial Right to sue Motions

3. History and General Themes • Lay Out General Themes • What is or is not covered • Until fairly recently, race was the major focus • Gender • Age • Disability • Genetic Information • Variability across states, regions • Discuss the federal circuits • discuss variability in FLSA requirements across states • What does Colorado law say? • The way the Federal Government was formed makes a critical difference • In general, Federal Government tries to stay out of employment issues

4. US Legal System • US Constitution • Prior to Constitution • Articles of Confederation- 13 Colonies • Constitution ratified in 1789 • 7 articles: Articles I-III- 3 branches of govt • Articles IV-V – states rights/amendments • Articles VI- debt, treaty procedures • Articles VII- ratification process- 9 of 13 states • Two clauses that are checks on states’ rights: Commerce Clause (I) and Supremacy Clause (VI)

5. Legal System • Revolutionary War and amendments to Constitution • Bill of Rights • Amendments important for EEO are 11, 13 and 14. • 13th Amendment – prohibits slavery (1865) • 14th amendment – all persons born or naturalized within US are citizens, due process (1868)

6. Overview • The Federal Government cannot interfere with the States so long as they do not deprive some person of life, liberty, or property without due process of law.” Due process of the law disables the State executive officer and State courts from denying State laws of due process before tribunals of justice to any class of persons.

7. cont • Branches of Federal Government • Legislative • Executive • Judicial

8. T or F: about Regulation of Employment • 1. You have a right to your job. • 2. once you are hired, your employer may not fire you unless there is a good reason. • 3. As an employer, you may not terminate someone unless that worker does something ‘bad’. • 4. you have someone working for you whom you really do not get along with ; you may not fire that person for that reason alone. • 5. As an employer, you may have a rule that, if any employee reports the wrongdoings of the firm to the government, she or he will be terminated.

9. T or F – who is or is not an Employee • 1. an employee is anyone who is paid to work. • 2. as long as a person chooses how she will perform her job, she is an independent contractor and not an employee. • 3. the one who hires the worker is liable for anything that the eployee does in the course of his or her employment. • 4. If someone is an employee under one statute, that person is considered an employee under all employment-related statues.

10. cont • 5. If someone is considered an employer for purposes of one statute, he or she is considered an employer for all statutes. • 6. It is always better to hire someone as an independent contractor, rather than as an employee. • 7. If a mistake is made in categorizing one’s workers, it is no big deal.

11. Who is an employee? • Independent contractor- a person who contracts with a principal to perform a task according to her/his own methods, and who is NOT under the principal’s control regarding the physical details of the work. • Employee- ‘Common-law agency test- a test used to determine employee status: the employer must merely have the right or ability to control the work for a worker to be classified as an employee. • Other factors in determining employee status: works for wages/salary, directly supervised,

12. Who is an employee? • EEOC guidance in determining if work is controlled: • 20 factors (noninclusive) • Instructions, training, integration (continuation), services rendered personally, hiring-supervising-and –paying assistants, continuing relationships, set hours of work, fulltime required, doing work on the employer’s premises, order or sequence set, oral or written reports, furnishing tools and materials, payment by hour, week, or month, right to discharge, and right to terminate

13. Who is employee? • Likely a contractor: payment of business or traveling expenses (employee too), significant investment, realization of profit or loss, working for more than one firm at a time • Economic realities test-

14. Applicant • Defining ‘Applicant’ • 1. employee has acted to fill a particular position • 2. individual has followed the employer’s standard procedures for submitting applications. • 3. individual has indicated an interest in the particular position. Has ‘indicated an interest in being considered’ for employment. Does not include email inquiries or postings of resume etc.

15. Definition of Employer • Generally—is one who employs or uses others to do his or her work, or to work on his/her behalf.

16. Civil Rights Laws • Civil Rights Acts 1866-75 • Discuss what is and what is not covered • Reconstruction ends 1877. With the end of Reconstruction enforcement of • Civil Rights Acts essentially stops. Although these laws remain on the books, they are essentially ignored for almost 90 years

17. Modern civil rights movement • Integration of Armed Forces – 1948 • Militias and armies were integrated up to 1812, then again 1948 • Civil Rights Movement • Mid 1950s, sustained push for Federal Action • Brown v Board of Education – courts ordered states to end • segregation in education, with all deliberate speed

18. CRA 1964 • Civil Rights Act of 1964 • Titles: • I - Barred unequal application of voter registration • Requirements • II - Outlawed discrimination based on race, color, religion or • national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce • III - Prohibited state and municipal governments from denying • access to public facilities on grounds of race, color, religion or national origin. • VI - Prevents discrimination by government agencies that • receive federal funds. • VII - prohibits discrimination by covered employers on the • basis of race, color, religion, sex or national origin 

19. EEOC • The U.S. Equal Employment Opportunity Commission (EEOC) is a federal law enforcement agency that enforces laws against workplace discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability, genetic information and retaliation for reporting, participating in and/or opposing a discriminatory practice. The Commission also mediates and settles thousands of discrimination complaints each year prior to their investigation. The EEOC is also empowered to file discrimination suits against employers on behalf of alleged victims and to adjudicate claims of discrimination brought against federal agencies • Its mandate is specified under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA),[6] the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA)

20. 6 dimensions of EEO Laws • 1. Protected classes – race, color, religion, sex & origin • 2. covered entities- private, state local, and federal that employ 15 or more employees in each of 20 weeks of current or prior year. • 3. covered practices – non discrimination (terms/conditions, segregation/classification, and retaliation) and religious accommodation. • 4. Admin. Procedures- EEOC procedures: statue of limitations=300 dys in deferral states and 180 days in non.

21. cont • 5. Remedies- equitable relief and capped legal relief • 6. Juridical scenarios – McDonnell-Burdine and mixed-motive scenarios for individuous disparate treatment, class-wide patter or practice; adverse impact; statutory defenses, inclduing BFOQ, BFSS and undue hardship for sincerely held religious beliefs.

22. CRA 1991 • Congress had amended Title VII once before, in 1972, when it broadened the coverage of the Act. It was moved to overhaul Title VII in 1991 and to harmonize it with Section 1981 jurisprudence, by a series of Supreme Court decisions: • Patterson v. McLean Credit Union, 491 U.S.164 (1989), which held that an employee could not sue for damages caused by racial harassment on the job, because even if the employer's conduct were discriminatory, the employer had not denied the employee the "same right . . . to make and enforce contracts . . . as is enjoyed by white citizens," the language that Congress chose when passing the law in 1866.

23. CRA • Wards Cove Packing Co. v. Atonio, 490 U.S.642 (1989), which made it more difficult for employees to prove that an employer's personnel practices, neutral on their face, had an unlawful disparate impact on them by requiring that they identify the particular policy or requirement that allegedly produced inequalities in the workplace and show that it, in isolation, had this effect. • Price Waterhouse v. Hopkins, 490 U.S.228 (1989), which held that the burden of proof shifted, once an employee had proved that an unlawful consideration had played a part in the employer's personnel decision, to the employer to prove that it would have made the same decision if it had not been motivated by that unlawful factor, but that such proof by the employer would constitute a complete defense for the employer.

24. CRA 1991 • In essence, the new CRA reiterated the principles of the Civil Rights Act of 1964, the law it amended, in making employment discrimination on the basis of color, race, gender, and religious creed illegal. • It also incorporated the same features of the old 1866 civil rights employment law by granting punitive and compensatory damages to the injured party, as well as allowing the employee to sue an employer in a jury trial when such damages were claimed. • It added to the pool of potential litigants employees covered by the 1967 Age Discrimination in Employment Act and those protected under the 1990 Americans with Disabilities Act.

25. CRA • In another slap at the Supreme Court's Ward's Cove decision, the law reassessed the defendant's burden once disparate impact had been shown by the plaintiffs. That burden, the law said, was one of persuasion, not merely production. This provision would make employers' defense against disparate impact discrimination charges much more difficult and costly. • . Any employee suing for punitive and compensatory damages is entitled to a jury trial rather than, as under the Civil Rights Act of 1964, to a judge's decision. Juries are considered to be more sympathetic to employee grievances than judges.

26. CRA • Section 106 Prohibits race norming • `(l) It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.'.

27. What is covered? • Discus range of illegal employment acts

28. How does litigation work? May be mediation • Judge trial • Jury trial (CRA 1991 – right to jury trial in most cases)

29. Process • 1. contact a federal, state, or local government agency eg., EEOC to register protest • 2. Information- once filed, the agency requests info from employer • What types of information? • 3. Reconciliation-if charge or protest has merit (what is this in I/O terms?), agency may suggest a remedy • Otherwise, if reconciliation is unsuccessful, the individual or group has the right to file a lawsuit

30. Process cont • 4) Right to sue- charging party may receive this in 3 ways: • 1) CP may ask for it after a fixed time period and EEOC must comply; 2) it can be automatically issued if EEOC finds the charge with merit; and 3) may be automatically issued if EEOC find charge to have merit but unable to resolve charge with employer. • 5) Complaint- if CP choose to file a lawsuit, the next step is to file a formal complaint with the court- id plaintif(s), id biases practice and remedy.

31. Process • . Class Certification- • 7. Discovery- • 8. Motions- • 9. In Limine Motions • 10. Summary judgment motions • 11. Mediation and settlement • 12. Trial • 13. Witnesses- Fact and Expert • 14. Decision • 15. Appeal

32. Process • Federal Appelate Court System • Procedure • Trials, at which witnesses and other evidence are presented to a jury or judge in order to determine the truth or facts regarding a particular case, are held only in courts with original jurisdiction, i.e., courts in which a lawsuit is originally (and properly) filed and which have the power to accept evidence from witnesses and make factual and legal determinations regarding the evidence presented. Such trial courts also determine punishments (in criminal cases) and remedies (in civil cases). • Because the courts of appeals possess only appellate jurisdiction, they do not hold trials. Instead, appeals courts review decisions of trial courts for errors of law. Accordingly, an appeals court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court, and the legal arguments of the parties. These arguments, which are presented in written form, and can range in length from dozens to hundreds of pages, are ironically known as "briefs". Sometimes lawyers are permitted to add to their written briefs with oral arguments before the appeals judges. At such hearings, only the parties' lawyers speak to the court.

33. Process • The rules that govern the procedure in the courts of appeals are the Federal Rules of Appellate Procedure. In a court of appeals, an appeal is almost always heard by a "panel" of three judges who are randomly selected from the available judges (including senior judges and judges temporarily assigned to the circuit). Some cases, however, receive an en banc hearing. Except in the Ninth Circuit Courts, the en banc court consists of all of the circuit judges who are on active status, but it does not include the senior or assigned judges (except that under some circumstances, a senior judge may participate in an en banc hearing when he or she participated at an earlier stage of the same case). • The current procedure is that a party in a case may apply to the Supreme Court to review a ruling of the circuit court. This is called petitioning for a writ of certiorari, and the Supreme Court may choose, in its sole discretion, to review any lower court ruling. In extremely rare cases, the Supreme Court may grant the writ of certiorari before the judgment is rendered by the court of appeals, thereby reviewing the lower court's ruling directly. Certiorari before judgment was granted in the Watergate scandal-related case, United States v. Nixon, 418 U.S.683 (1974), and in the 2005 decision involving the Federal Sentencing Guidelines, United States v. Booker, 543 U.S.220 (2005).

34. FLSA • Fair Labor Standards Act of 1938 • Minimum wage • Time and ½ for overtime • The FLSA applies to "any individual employed by an employer" but not to independent contractors or volunteers because they are not considered "employees" under the FLSA.[14] Still, an employer cannot simply exempt workers from the FLSA by calling them independent contractors, and many employers have illegally misclassified their workers as independent contractors. Some employers similarly mislabel employees as volunteers. Courts will look at the "economic reality" of the relationship between the putative employer and the worker to determine whether the worker is, in fact, an independent contractor. Courts use a similar test to determine whether a worker was concurrently employed by more than one person or entity; commonly referred to as "joint employers"

35. FLSA • Application of Principles • Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable. • Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."

36. FLSA • On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated. • Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

37. FLSA • Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken. • Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

38. FLSA • Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved. • Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time. • Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

39. FLSA • Travel That is All in a Day's Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked. • Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.