Certified Public Labor Attorney Exam cheat sheet

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.

NLRA Section 7 protects concerted activity for mutual aid or protection; Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in those rights.

NLRA coverage excludes agricultural laborers, domestic service workers, independent contractors, supervisors (Section 2(11)), and persons employed by a parent or spouse; railway and airline labor falls under the RLA instead.

At-will employment is the default common-law rule; it is rebutted by an express contract, an implied-in-fact contract, a covenant of good faith (recognized in a minority of states), or a clear public policy (e.g., refusing to violate law, filing a workers' compensation claim).

Title VII, ADEA, ADA, and USERRA apply to employers with 15 or more employees; the ADEA covers 20 or more; the FMLA covers 50 or more within 75 miles; the WARN Act covers 100 or more (or 100+ including 100 within 90 days).

Federal anti-discrimination statutes generally require an EEOC charge before suit: 180 days after the unlawful practice, extended to 300 days in states with a worksharing agency (deferral states).

The employment relationship test for statutes differs: common-law agency/right-to-control for Title VII and ERISA; the economic realities test for FLSA; the ABC test in states such as California (Dynamex/AB 5) for wage orders and many Labor Code claims.

The McDonnell Douglas burden-shifting framework applies to circumstantial-evidence discrimination cases: prima facie case, legitimate nondiscriminatory reason, then pretext.

Federal preemption: LMRA Section 301 preempts state claims substantially dependent on interpretation of a collective bargaining agreement; Garmon preemption displaces state regulation of conduct arguably protected or prohibited by the NLRA.

Disparate treatment requires proof of intent (direct evidence or McDonnell Douglas); disparate impact requires a facially neutral practice causing statistically significant disparity, and the employer must show job-relatedness and business necessity (42 U.S.C. § 2000e-2(k)).

Title VII protected classes: race, color, religion, sex (including pregnancy, sexual orientation, and gender identity per Bostock v. Clayton County, 2020), and national origin.

Title VII caps compensatory and punitive damages per claimant (excluding backpay): $50,000 for 15-100 employees, $100,000 for 101-200, $200,000 for 201-500, $300,000 for 501+.

ADA: the plaintiff must be a qualified individual with a disability who can perform essential functions with or without reasonable accommodation; the employer need not provide an accommodation causing undue hardship.

ADEA: age 40+ protected; disparate impact is cognizable under Smith v. City of Jackson (2005); mixed-motives claims are available under Gross v. FBL Financial (2009) only if age is the but-for cause; ADEA waivers must satisfy the OWBPA (21/45-day consideration, 7-day revocation, written and knowing).

Harassment is actionable when severe or pervasive and alters the terms and conditions of employment; Faragher/Ellerth affirmative defense applies to supervisor harassment with no tangible employment action if the employer exercised reasonable care and the employee unreasonably failed to use complaint procedures.

Retaliation under Title VII, ADA, ADEA, and FLSA requires protected activity, adverse action, and causal connection; the Supreme Court in Burlington Northern (2006) held that adverse action includes anything that would dissuade a reasonable worker from complaining.

Section 1981 (42 U.S.C. § 1981) covers race and ethnicity in contracting, has no administrative exhaustion requirement, and allows uncapped compensatory and punitive damages.

FLSA overtime: 1.5 times the regular rate for hours over 40 in a workweek; the regular rate includes nondiscretionary bonuses, commissions, and shift differentials but excludes discretionary bonuses, expense reimbursements, and certain statutory exclusions (29 U.S.C. § 207(e)).

Salaried exempt employees must be paid on a salary basis at the regulatory threshold (currently $684/week under 29 C.F.R. § 541) and meet the duties tests (executive, administrative, professional, computer, outside sales).

The FLSA white-collar exemptions: executive (manages a recognized department, directs 2+ employees, authority to hire/fire or recommendations given particular weight); administrative (office work directly related to management or general business operations, exercises discretion on matters of significance).

The FLSA 'regular rate' and hours-worked rules: compensable time includes time the employer suffers or permits; on-call time is compensable when the employee is unable to use time effectively for personal purposes; meal breaks are compensable unless the employee is completely relieved of duty.

FLSA statute of limitations: two years for non-willful violations, three years for willful violations; liquidated damages equal to back wages are available unless the employer shows good faith and reasonable grounds.

State wage payment statutes (e.g., California Labor Code §§ 200, 201, 204, 226) require timely payment of wages, itemized wage statements, and waiting-time penalties; check state-specific rules.

Tip credit: FLSA permits employers to count tips toward the minimum wage up to $5.12 per hour (for a $2.13 cash wage) if the employer informs employees, the employee retains all tips, and the employer's tip pool is valid; the 2018 amendment allows tip pools including back-of-house workers if no tip credit is taken.

Child labor: FLSA restricts 14-15 year-olds to 3 hours on school days, 18 hours per school week; hazardous occupations orders bar minors under 18 from specified jobs (29 C.F.R. Part 570).

Section 8(a) employer ULPs: (1) interference/coercion; (2) domination of a labor organization; (3) discrimination based on union activity; (4) retaliation for filing charges or giving testimony; (5) refusal to bargain in good faith.

Section 8(b) union ULPs: (1) restraint or coercion of employees; (2) causing an employer to discriminate; (3) refusal to bargain; (4) secondary boycotts; (5) excessive or discriminatory hiring-hall fees; (6) featherbedding; (7) recognitional or organizational picketing of more than 30 days without a petition.

Election bar rules: certification bar (12 months after certification), contract bar (up to 3 years for a valid CBA), and election bar (12 months after a valid election).

Representation election procedure: petition (RD, RC, RM), showing of interest (30% for RC), Notice of Election, secret-ballot election, and objections within 5 business days; Board agents conduct the election.

Mandatory subjects of bargaining: wages, hours, and other terms and conditions of employment; permissive subjects (e.g., union security beyond lawful scope, retiree benefits in some contexts) cannot be bargained to impasse; unlawful subjects cannot be bargained at all.

Right to work: NLRA Section 14(b) allows states to prohibit union security agreements; in non-right-to-work states, union shop clauses may require dues/fees but not membership (Beck and Communications Workers v. Beck).

Weingarten rights: unionized employees may have a union representative present during investigatory interviews that the employee reasonably believes may lead to discipline.

LMRA Section 301 authorizes federal suits to enforce CBAs; arbitration awards are reviewed under the Federal Arbitration Act with extremely limited judicial review (manifest disregard, fraud, exceeding authority).

Exclusive remedy: workers' compensation benefits are generally the exclusive remedy for work-related injuries, barring tort suits against the employer except for intentional torts or gross misconduct; third-party tortfeasor suits remain available.

Benefit categories: medical care, temporary total disability (TTD), temporary partial disability (TPD), permanent partial disability (PPD), permanent total disability (PTD), death benefits, and vocational rehabilitation.

Compensability requires an injury arising out of and in the course of employment (AOE/COE); the 'going and coming' rule excludes ordinary commute injuries except for special-mission, travel, and employer-conveyance exceptions.

Average weekly wage (AWW) is typically computed from the prior 13 weeks or 52 weeks of earnings, depending on jurisdiction; state maximum and minimum compensation rates cap weekly benefits.

Permanent disability ratings use the AMA Guides (5th or 6th edition) in many states; California uses the AMA Guides plus the 2005 rating schedule (SB 899).

Exclusive remedy does not bar claims for intentional infliction of emotional distress in some states, nor does it bar claims for retaliatory discharge for filing a workers' compensation claim.

OSHA and workers' compensation interact: OSHA recordkeeping (300 log) is separate from WC reporting; OSHA's anti-retaliation provision (Section 11(c)) protects employees who report injuries.

Statutes of limitations for WC claims vary: e.g., California generally requires a claim form within 30 days and a claim within one year of injury or last payment of benefits (Labor Code §§ 5400-5401).

OSHA general duty clause (Section 5(a)(1)): employers must furnish a workplace free from recognized hazards likely to cause death or serious physical harm; the hazard must be recognized, likely to cause serious harm, and feasible to abate.

OSHA inspection priorities: imminent danger, fatality/catastrophe (within 8 hours), employee complaints, programmed inspections, and follow-ups; warrant requirement per Marshall v. Barlow's (1978).

Citation categories and penalties: other-than-serious, serious (up to $16,131 per violation as adjusted), willful/repeated (up to $161,323), failure-to-abate (up to $16,131 per day); state plans must be at least as effective as federal OSHA.

Employer recordkeeping: OSHA 300 log, 301 incident report, and 300A summary; record within 7 days; retain for 5 years; posting of 300A from February 1 to April 30.

Reporting: fatalities within 8 hours; in-patient hospitalization, amputation, or loss of an eye within 24 hours (29 C.F.R. § 1904.39).

Employee rights: right to refuse unsafe work when there is a reasonable belief of imminent danger and no time to eliminate it; Section 11(c) retaliation protection; walkaround rights during inspections.

Multi-employer worksite doctrine: creating, exposing, correcting, and controlling employers may each be cited; the controlling employer has general supervisory authority and must exercise reasonable care.

State-plan states (e.g., California Cal/OSHA, Washington L&I) enforce their own standards; federal OSHA retains jurisdiction over federal employees and certain maritime and construction sites.

ERISA preemption: ERISA Section 514(a) preempts state laws that 'relate to' employee benefit plans; savings clause preserves state insurance regulation; the deemer clause prevents states from deeming plans to be insurers.

Fiduciary duties under ERISA: loyalty and prudence (Section 404(a)(1)); prohibited transactions (Section 406); co-fiduciary liability (Section 405); bonding requirement for plan officials handling assets.

COBRA: continuation coverage for 18 months (qualifying event) or 29 months (disability), 36 months for dependents in certain events; employer must notify plan administrator within 30 days; administrator notifies qualified beneficiaries within 14 days.

FMLA: 12 workweeks of unpaid leave in a 12-month period for birth, adoption, serious health condition, or family military exigency; 26 weeks for military caregiver leave; employer coverage threshold is 50 employees within 75 miles; employee must have 12 months and 1,250 hours.

HIPAA: portability, privacy (PHI), security, and special enrollment rights; wellness programs must comply with ADA and GINA limits on incentives.

Retirement plan rules: 401(k) contribution limits (2024: $23,000 elective deferral, $7,500 catch-up at 50+); ADP/ACP nondiscrimination testing; top-heavy rules; required minimum distributions begin at age 73 under SECURE 2.0 (2023).

Pension plan funding and termination: PBGC guarantees certain benefits; single-employer plan termination triggers underfunding liability; multiemployer withdrawal liability under ERISA Section 4201.

Unemployment insurance: eligibility requires separation without fault (misconduct disqualifies), able and available to work, and active work search; states administer benefits with federal oversight (FUTA).

Non-compete enforceability varies by state: California bans most non-competes (Bus. & Prof. Code § 16600, with sale-of-business and partnership exceptions); Minnesota bans them as of July 1, 2023; other states require legitimate business interest, reasonable scope, and consideration.

FTC Non-Compete Rule (2024) was set aside nationwide by the Northern District of Texas in Ryan LLC v. FTC (August 2024); status is unsettled and state law controls.

Trade secret definition (DTSA, 18 U.S.C. § 1839): information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain secrecy.

DTSA: private civil action in federal court; ex parte seizure in extraordinary circumstances; whistleblower immunity notice requirement (18 U.S.C. § 1833(b)); 3-year statute of limitations.

Inevitable disclosure doctrine: some states (e.g., Delaware, Illinois under limited circumstances) enjoin an employee from working for a competitor where trade secrets would inevitably be used; California rejects the doctrine (Whyte v. Schlage Lock).

Garden leave and forfeiture-for-competition clauses are alternatives to non-competes; courts scrutinize them under reasonableness and consideration rules.

Employee duty of loyalty: employees may not compete during employment, solicit coworkers or customers for a competing business, or use confidential information; the duty ends at termination absent a valid restrictive covenant.

Choice-of-law and forum-selection clauses in restrictive covenants are enforced only if reasonable; California courts refuse to apply another state's law to evade § 16600 (Edwards v. Arthur Andersen).

NLRB procedure: charge filed within 6 months of the unfair labor practice (Section 10(b)); investigation by the Regional Director; complaint; hearing before an ALJ; appeal to the Board; review in the U.S. Court of Appeals.

EEOC procedure: charge, investigation, determination, conciliation, right-to-sue letter; EEOC may file suit; the Administrative Procedure Act governs agency rulemaking (notice-and-comment) and adjudication.

APA standards: arbitrary and capricious review under Section 706(2)(A); substantial evidence for formal adjudication; Chevron deference was overruled by Loper Bright Enterprises v. Raimondo (2024), so courts exercise independent judgment on statutory meaning.

Due process in administrative hearings: notice, opportunity to be heard, impartial decision-maker; the Board's standard for deferring to arbitrator awards is Spielberg/Olin (1974).

Attorney ethics: ABA Model Rules 1.1 (competence), 1.5 (fees), 1.6 (confidentiality), 1.7 (conflict of interest), 1.9 (former client), 3.3 (candor to tribunal), 4.2 (communication with represented persons), 4.3 (dealing with unrepresented persons).

Model Rule 4.2 prohibits communication about the subject of representation with a person the lawyer knows is represented by counsel, absent consent; this applies in employment investigations and settlement negotiations.

Model Rule 5.3 requires supervision of nonlawyer assistants; Rule 5.5 prohibits unauthorized practice of law; multijurisdictional practice rules (Rule 5.5(c)) permit temporary practice in some circumstances.

Attorney-client privilege and work-product protection in internal investigations: Upjohn Co. v. United States (1981) extends privilege to communications with corporate employees; work product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation.