Employment Law (Personnel Legislation and Regulation)
Law items test coverage thresholds, protected classes, the theory of discrimination (disparate treatment versus disparate impact), and which statute governs a scenario.
Discrimination core
Title VII of the Civil Rights Act of 1964 bars discrimination in hiring, pay, terms, and conditions based on race, color, religion, sex, or national origin for employers with 15 or more employees, and creates the EEOC. Disparate treatment is intentional; disparate impact is a neutral policy with unequal effect-Griggs v. Duke Power (1971) and the four-fifths rule apply. Harassment is quid pro quo or hostile environment; the Faragher–Ellerth defense requires reasonable care by the employer and no tangible employment action. Retaliation is actionable even if the underlying complaint turns out to be unfounded.
Statutes and thresholds
- ADEA 1967: age 40 and over; 20+ employees.
- Equal Pay Act 1963: equal pay for substantially equal work; seniority, merit, quantity/quality, and any factor other than sex are defenses.
- ADA 1990: 15+ employees; reasonable accommodation unless undue hardship; essential functions; medical exams only after a conditional offer.
- FMLA 1993: 50+ employees within 75 miles; 12 months of service and 1,250 hours; 12 weeks unpaid with job restoration.
- IRCA 1986: Form I-9 for every hire; USERRA protects military service; WARN 1988 covers 100+ employees with 60 days' notice.
Damages
The Civil Rights Act of 1991 allows compensatory and punitive damages capped by employer size ($50,000 for 15–100 employees up to $300,000 for 500+), combined for compensatory and punitive; punitive damages are unavailable against government employers.
Worked example
An employee at a 60-person office, employed 14 months and having worked 1,300 hours, requests 12 weeks off for a serious health condition. The employer has 50+ employees within 75 miles, and the employee meets the 12-month and 1,250-hour tests, so FMLA applies: 12 weeks unpaid, health premiums maintained at the employee's share, and job restoration. Had she worked only 1,100 hours, FMLA would not apply and the employer would use its own leave policy, ADA analysis, or stricter state law.
Traps that cost marks
- Applying the ADA without an accommodation analysis of essential functions.
- Confusing FMLA leave with workers' compensation injury benefits.
- Ignoring state law where it is stricter than federal law.
- Assuming every 40+ employee is protected; ADEA requires age to be the but-for cause.
Labor Relations
Labor relations covers the legal framework for private-sector unions, organizing, bargaining, impasse, and contract administration.
Statutory framework
The National Labor Relations Act (Wagner Act, 1935) grants Section 7 rights to organize, bargain collectively, and engage in concerted activity, creates the NLRB, and lists employer unfair labor practices: interference, discrimination for union activity, and refusal to bargain. Taft-Hartley (1947) added union unfair labor practices, banned the closed shop, permitted state right-to-work laws under Section 14(b), and created the 80-day national emergency injunction. Landrum-Griffin (1959) gave union members a bill of rights and imposed reporting duties.
Organizing
Organizing starts with authorization cards; an election petition requires a 30% showing of interest. The NLRB runs a secret-ballot election, and a majority of votes cast certifies the union, followed by a one-year bar on further elections. Voluntary recognition is possible, and employees may decertify with a 30% petition. Weingarten rights give a unionized employee a representative at an investigatory interview the employee reasonably believes may lead to discipline.
Bargaining and impasse
Mandatory subjects-wages, hours, and other terms and conditions of employment-must be bargained in good faith. Permissive subjects may be bargained (for example, representation of supervisors). Illegal subjects cannot be (closed shop, hot-cargo clauses). At impasse: mediation, fact-finding, then economic pressure-strike, lockout, or hiring replacements. Grievances end in binding arbitration; the Steelworkers Trilogy (1960) established judicial deference to arbitrators.
Worked example
A union proposes an employer contribution to a jointly administered training fund; the employer counters that the union print a company logo on its letterhead. The training fund touches wages and working conditions, so it is a mandatory subject-refusing to bargain over it supports a refusal-to-bargain charge. The logo is permissive: either side may discuss it, but insistence on a permissive subject to the point of impasse is itself an unfair labor practice.
Traps that cost marks
- Confusing Wagner (employer unfair labor practices) with Taft-Hartley (union unfair labor practices).
- Assuming union security clauses are lawful everywhere; Section 14(b) states differ.
- Treating a 30% card showing as certification.
- Believing supervisors are covered by the NLRA; they are excluded.
- Thinking an employer must bargain over permissive subjects.