Certified Public Labor Attorney Exam flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Section 7 rights

NLRA provision protecting employees' rights to self-organize, form or join unions, bargain collectively, and engage in other concerted activity for mutual aid or protection, including non-union concerted action.

McDonnell Douglas framework

Three-step burden-shifting analysis for circumstantial discrimination evidence: plaintiff establishes a prima facie case, employer articulates a legitimate reason, plaintiff shows pretext.

FLSA regular rate

The hourly rate used to compute overtime, calculated by dividing total straight-time remuneration in a workweek by hours worked, including nondiscretionary bonuses and shift differentials.

Weingarten rights

Right of a unionized employee to have a union representative present at an investigatory interview that the employee reasonably believes may result in discipline, established in NLRB v. J. Weingarten.

Exclusive remedy doctrine

Workers' compensation principle that statutory benefits are the employee's sole remedy against the employer for work-related injury, barring tort suits except for intentional misconduct.

OSHA general duty clause

Section 5(a)(1) requirement that employers provide a workplace free from recognized hazards likely to cause death or serious physical harm, applied when no specific standard governs.

ERISA preemption

Section 514(a) doctrine preempting state laws that relate to employee benefit plans, subject to the savings clause for insurance regulation and the deemer clause.

DTSA trade secret

Federal Defend Trade Secrets Act definition: information with independent economic value from not being generally known, subject to reasonable secrecy measures, misappropriated and used in interstate commerce.

Loper Bright overruling

2024 Supreme Court decision ending Chevron deference; courts now exercise independent judgment on statutory meaning and do not defer to agency interpretations of ambiguous statutes.

At-will employment

Default employment doctrine permitting either party to terminate the relationship at any time, for any lawful reason, subject to contract, public policy, and statutory exceptions.

Bostock v. Clayton County

2020 Supreme Court decision holding that Title VII's prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity.

White-collar exemptions

FLSA exemptions for executive, administrative, professional, computer, and outside sales employees who meet salary-basis and duties tests under 29 C.F.R. Part 541.

Mandatory bargaining subjects

Terms and conditions of employment such as wages, hours, and benefits that the NLRA requires employers and unions to negotiate in good faith.

AOE/COE test

Workers' compensation compensability standard requiring that an injury arise out of and occur in the course of employment, connecting the injury to work activity.

OSHA 300 log

Recordkeeping form on which covered employers must record work-related fatalities, injuries, and illnesses within seven days and retain the log for five years.

FMLA eligibility threshold

Employer coverage requires 50 or more employees within 75 miles; employee eligibility requires 12 months of service and 1,250 hours worked in the prior 12 months.

Inevitable disclosure doctrine

Theory allowing courts to enjoin an employee from working for a competitor when the new job would inevitably require use of the former employer's trade secrets.

Model Rule 4.2

Ethics rule prohibiting a lawyer from communicating about the subject of representation with a person the lawyer knows is represented by counsel, absent consent.

Garmon preemption

Doctrine barring state regulation of conduct arguably protected or prohibited by NLRA Sections 7 or 8, leaving primary jurisdiction to the NLRB.

Faragher/Ellerth defense

Affirmative defense to supervisor harassment liability when no tangible employment action occurred; employer must show reasonable care and employee's unreasonable failure to complain.

FLSA willful violation

Violation showing knowledge or reckless disregard of the FLSA requirement, extending the statute of limitations from two years to three and supporting liquidated damages.

Right-to-work laws

State laws authorized by NLRA Section 14(b) prohibiting union security agreements that require employees to pay dues or fees as a condition of employment.

Going and coming rule

Workers' compensation rule excluding ordinary commute injuries from compensability, subject to exceptions for special missions, travel, and employer-provided transportation.

Multi-employer worksite doctrine

OSHA enforcement theory allowing citations of creating, exposing, correcting, and controlling employers at a worksite, each according to its role and authority.

COBRA continuation period

Maximum period of group health coverage continuation: generally 18 months, 29 months for disability-qualified beneficiaries, and 36 months for certain dependent events.

Garden leave clause

Contract provision requiring an employee to remain on payroll but stay away from work for a notice period, often used as an alternative to a non-compete.

APA arbitrary and capricious review

Standard under 5 U.S.C. § 706(2)(A) requiring agency action to be rational, based on relevant factors, and supported by the administrative record.

OWBPA waiver requirements

Older Workers Benefit Protection Act rules for valid ADEA releases: written, knowing, specific rights waiver, 21 or 45 days to consider, and 7-day revocation period.

Tip credit

FLSA mechanism allowing employers to count a portion of employee tips toward the minimum wage, currently up to $5.12 per hour, if notice and retention conditions are met.

Section 8(a)(5) refusal to bargain

Unfair labor practice committed when an employer refuses to meet and bargain in good faith with the employees' exclusive representative over mandatory subjects of bargaining.

ERISA fiduciary duty

Standard requiring plan fiduciaries to act solely in the interest of participants and beneficiaries with the care, skill, and prudence of a knowledgeable person.

Upjohn privilege

1981 Supreme Court holding that attorney-client privilege extends to communications between corporate counsel and employees during internal investigations conducted for legal advice.