Glossasry

Glossary

A

Abatementperiod The amount of time that the

employer has to correct the problems.

AbuseofdiscretionA standard used to determine

if plan administrators abused their discretion by

making decisions in an arbitrary and capricious

manner.

ADAAmendmentsAct(ADAA) A law amending

the definition of disability under the ADA.

Administrativeemployee An employee whose work

is not directly related to production.

Adverseaction The requirement that employers

obtain the consent of employees or applicants before

seeking to obtain credit reports and provisions for prior

and concurrent notice when denying an employment

opportunity.

Adverseemploymentaction Harassment that does

not directly alter a person employment status, but

makes it more difficult to perform well and stay on

the job.

Adverseimpact The disproportionate limitation or

denial of employment opportunity for some protected

class group that results from the use of a “neutral”

requirement or practice that cannot be adequately

justified.

Affectedemployees Employees who are reasonably

expected to suffer employment loss stemming from a

plant closing or mass layoff, including termination

(other than a quit, discharge for cause, or retirement), a

layoff lasting more than six months, or a greater than

50 percent reduction in work hours during each month

of any six-month period.

Affirmativeaction Those actions appropriate to

overcome the effects of past or present practices,

policies, or other barriers to equal employment

opportunity.

AffirmativedefenseA means by which employers

can avoid vicarious liability by establishing that they

exercised reasonable care to prevent and correct any

harassment or a plaintiff unreasonably failed to take

advantage of any preventive or corrective opportunities

provided by the employer or to avoid harm otherwise.

After-acquiredevidence Evidence showing that there

is another consequence to employee falsifications and

omissions during the hiring process.

Alternativedisputeresolution Alternatives to going

to court for resolving disputes.

AmericanswithDisabilitiesAct(ADA) A law that

protects “qualifiedindividuals”from discrimination

“on the basis of disability.

Appealscourt Circuit courts that accept the facts of

cases as given and focus on whether the lower courts

properly applied the law in deciding cases.

Appealsprocedures A procedure for appealing

adverse benefit determinations.

Applicantflowdata Compares the protected class

composition of an applicant pool to that of the group

of people who pass the test and are successful (or at

least till in the running) in obtaining an employment

opportunity.

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Glossary

Applicant Any person who indicates an interest in

being considered for an employment opportunity.

Apprenticeshipprograms Programs that typically

combine classroom instruction with work under the

guidance of experienced coworkers.

Appropriatebargainingunit The group of

employees for which representation is being sought.

Appropriationofanameorlikeness A type of

privacy tort. It occurs when an individual’s name or

likeness is used by others without consent and for their

own commercial or other ends.

Arbitration An alternative dispute resolution (ADR)

procedure in which a neutral third party (the arbitra-

tor) functions more like a private judge. Arbitrators

hear disputes and render decisions that are almost

always final and binding on the parties.

Arisingoutofemployment Refers to the underlying

causation of the injury or illness. These phrases are

deceptively simple.

Arrest The act of being “up by the police

and taken to the police station with the intent of being

charged with crimes.

Assumptionofrisk A traditional common law

defense to negligence claims.

Authenticity Also referred to as genuineness, it is one

of the three general grounds for establishing BFOQs.

Authorizationcards The evidence that an election is

warranted. They serve as the decisive indicators of

employee preference.

B

Backgroundcheck Checks used to verify information

provided by candidates and to determine whether any

disqualifying factors exist.

Banding A process where test scores are treated as

estimates of tested-for characteristics (e.g., verbal abil-

ity, intelligence).

Baseperiod Period considered for establishing eligi-

bility for unemployment insurance. This is done by

examining the claimant’s work history over a specified

period of time prior to the job loss (usually the first

four out of the five quarters preceding the claim for

benefits).

“Becauseofsex” Harassment where the victim is

harassed in sex-specific and derogatory terms clearly

motivated by general hostility to the presence of people

of the same sex in the workplace; or in a mixed-sex or,

in a mixed-sex workplace, disparate treatment of

people based on their sex.

Bindingpastpractice Exists when a practice is clear,

it has been consistently engaged in over a substantial

period of time, and the practice existed with the

knowledge and at least tacit consent of both the union

and the employer.

Bonafideoccupationalqualification(BFOQ)

Breachofcontract A failure to live up to binding

promises, regardless of intent.

BurdenofproofThe plaintiff’s obligation to show,

generally by a “preponderance (the majority) of the

evidence,” that his rights were violated.

C

Card-checkprocedure Entails obtaining the

employer’ agreement to recognize the union if a

majority of employees sign authorization cards.

Cash-balanceplansDefined benefit pension plans

that also include some features of defined contribution

plans.

Certificateofcreditablecoverage Documentation of

prior coverage under a group health plan.

Chainofcustody The parties who handle the sam-

ples for drug testing.

Circumstantialevidence Evidence that hints at the

possibility of discrimination, but by itself is not suffi-

cient to compel that conclusion.

Citations Indicate the nature of the violations, the

OSHA standard(s) violated, the monetary penalties

associated with the violations, and the amount of time

that the employer has to correct the problems (the

abatement period).

Civilservicelaws Laws which are intended to

ensure that merit, and not political patronage, guides

employment decisions. Besides specifying job classi-

fication, testing, hiring, and promotion procedures

for public employment, civil service laws usually

incorporate processes for review of disciplinary

decisions.

Glossary723

CivilServiceReformAct(CSRA) The act that

governs collective bargaining by federal government

employees.

Class-actionlawsuits Lawsuits where numerous

plaintiffs join forces in claiming that their rights were

violated in essentially the same manner by their

employer.

Collectivebargaining The institution which recog-

nizes the value of employees banding together to deal

with their employers and the fact that the desires of

employees and employers sometimes clash.

Commonlawtest A widely used method for deter-

mining employee status.

Commonlaw The law that claims to remedy harm to

people caused by other people or companies.

Comptime The practice of paying for overtime work

with compensatory time off rather than overtime pay.

Comparativeevidence Evidence hinting that the

employer is shown to have treated the plaintiff worse

than another employee under the same circumstances,

with the only difference being that the other employee

was of a different race or sex.

Comparator A person of the opposite sex who is in

the same workplace and receives a higher rate of pay

for performing the same type of work as the plaintiff.

Compellinggovernmentalinterest A very important

public purpose.

Compensablefactor The requirements of a job.

Compensabletime Time spent in the principal work

duties of an employee, during work hours or during

time off and not punctuated with breaks, periods of

waiting or downtime and other activities.

Compensatorydamages Remedies awarded for a

wide range of damages beyond loss of wages, including

pain and suffering.

Complaintprocedure A procedure identifying a set

of actors to whom harassment complaints can be made.

Concertedactivity Any effort by employees to join

together for “mutual aid or protection.

Conciliation A settlement agreement.

Conditionalofferofemployment An offer of

employment that is “conditional upon satisfactory

results from the medical exam.

Confirmatorytests More sophisticated tests used

when initial screening tests come back positive.

Consentdecree Affirmative action arising out of

legal proceedings, imposed as a part of a judicially

approved settlement between parties.

Consent Any request for a reference accompanied

by a written “release of information” form that is

signed by the former employee and that grants

permission to communicate information about the

employee.

ConsolidatedOmnibusBudgetReconciliationAct

(COBRA) An act that requires that employers who

have group health insurance plans and at least twenty

employees offer continuation coverage to employees

(and other beneficiaries if there is family coverage) who

experience qualifying events that would otherwise

cause the loss of their health insurance.

Constitution The most basic source of law addres-

sing the relationships between different levels of gov-

ernment (e.g., states and the federal government) and

between governments and their citizens.

Constructivedischarge A resignation that occurs

when an employee is presented with the stark option of

resigning or being immediately terminated.

Consumercreditreport Any written, oral, or other

communication of any information by a consumer

reporting agency bearing on a consumer credit wor-

thiness, credit standing, credit capacity, character,

general reputation, personal characteristics, or mode of

living which is expected to be used or collected in

whole or part for the purpose of serving as a factor in

establishing the consumer’ eligibility for employment

purposes.

Consumerreportingagency Any entity that regu-

larly gathers or evaluates information on consumers to

furnish reports to third parties.

Contentvalidation A primary strategy for validating

employment tests that require the performance of the

same behaviors and skills as the job in question.

Contingent(nonstandard)work A term used to

contrast full-time, year-round employment with a sin-

gle employer that is expected to continue indefinitely,

with looser (i.e., more flexible or less secure, depending

on where you sit) relationships that exist only as long

as some particular project or piece of work needs to

be done.

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Glossary

Continuousleave Leave taken all in one block with no

work occurring between the beginning and end of leave.

ContributorynegligenceA traditional common law

defense to negligence claims.

Controls Standards that will effectively make

particular operations safer for employees.

Convictions The stronger evidence of lack of fitness

following either a trial or a guilty plea.

Cost-benefitanalysis Analysis in which the costs to

employers of complying with a standard are compared

to the economic value of the expected improvement in

worker health.

Covenantofgoodfaithandfairdealing A type of

wrongful discharge claim. It pertains to terminations

that are undertaken in bad faith and that have the

effect of denying employees the benefits of their

contractual employment relationship.

Criterionvalidation A primary strategy for validat-

ing employment tests that refers to a measure of job

performance.

Cutoffscore A specified score below which scores

are deemed as “failing and disqualify candidates from

further consideration.

D

Davis-BaconAct An act for construction contracts.

Decertificationelections Provision given by NLRA,

in which employees decide whether they want to con-

tinue to have union representation.

DefamationFalse statements that reflect badly on a

person, communicated to others, which results in

damage to the person reputation.

Definedbenefitplans A plan that promises a specific

pension benefit upon retirement.

Definedcontributionplans Plans in which employ-

ers establish and define what their own contributions, if

any, will be but make no promises regarding the

eventual payout to employees.

DirectevidenceVerbal or written statements that

unequivocally express a discriminatory motive.

DirectthreatA current, specific risk to safety or

health of an employee, coworkers, and customers,

arising from the employee disability, judged on the

basis of objective medical evidence.

Disability A physical or mental impairment that

substantially limits the performance of one or more

major life activities.

Disclaimers Written statements incorporated into

employee handbooks, employment applications, or

other important documents that “disclaim or deny

that any statements in those documents create con-

tractual rights binding on the employer.

Discrimination The limitation or denial of employ-

ment opportunity based on or related to the protected

class characteristics of persons.

Discriminatoryeffects The focus in adverse impact

cases where plaintiffs must show, usually through sta-

tistics, that some employment requirement or practice

affects one protected class group more detrimentally

than others.

Discriminatoryintent The key element of disparate

treatment in which the decision maker based a deci-

sion, in whole or part, on a protected class character-

istic of the affected employee.

Disparatetreatment The unequal treatment based

on one or more protected class characteristics that

results in the limitation or denial of employment

opportunity.

Districtcourt A trial court whose role is to establish

the facts of the case and to reach a decision about the

merits of the employee’ claim.

Diversity A concept asserting that human and cul-

tural differences should be valued.

Dodd-FrankWallStreetReformandConsumer

ProtectionAct An act enacted in 2010 in response to

the banking crisis that led to the failure of numerous

banks and investment firms, consolidation of others,

and a controversial “bail-out of large financial insti-

tutions. It tries to strengthen oversight of the financial

industry and incorporates several different whistle-

blower provisions.

DomesticpartnerbenefitsBenefits made available to

employees domestic partners.

“Don ask,don’ttell”policy A policy stating that

gay and lesbian service members be discreet and not

talk about or openly engage in homosexual behavior

and the military refrain from engaging in fishing

expeditions to ferret out gays and lesbians in the

ranks.

Glossary725

DownsizingA euphemism used to describe the

involuntary termination of numerous employees who

have done nothing to deserve that fate.

Drugtesting Tests that require employees or job

candidates to provide urine, blood, saliva, or hair

samples that are sent to laboratories and tested for

substances indicating use of illegal drugs.

Drug-FreeWorkplaceAct(DFWA) A state law

which requires that covered employers develop and

communicate policies prohibiting drug use, possession,

sale, or distribution in the workplace; inform employ-

ees about the dangers of drug abuse and options

available for drug counseling and treatment; establish

penalties for drug abuse violations; and report to the

funding agency any convictions relating to drug use or

sale in the workplace.

EmployeeFreeChoiceAct(EFCA) A requirement

that employers recognize unions chosen through a

card-check procedure.

EmployeePolygraphProtectionAct(EPPA) A law

which states that private sector employers must not

request or require that applicants submit to polygraphs

or other mechanical or electrical truth-determining

devices (including voice stress analyzers).

EmployeeRetirementIncomeSecurityAct(ERISA)

The principal federal law regulating benefit plans.

Employee An individual employed by an employer.

Employer The party legally responsible for the

actions of its employees.

Employmentatwillwithexceptions A legal regime

under which employees bear the burden of showing

Dueprocess

See Just cause.

that their termination was for an “illegal cause” pro-

hibited by law. But if they fail to do so, the default rule

Dutiestest The examination of the nature of an

is employment at will; the termination is legal regard-

individual duties and responsibilities.

less of how dubious the reasons or circumstances.

E

Earlyretirementincentives Offer given by employ-

ers to entice workers to leave their jobs sooner than

they otherwise might have. The minimum age or ser-

vice requirements might exclude younger employees

from early retirement incentives.

Economicrealitiestest An approach used by courts

to distinguish between employees and independent

contractors, particularly in Fair Labor Standards Act

(wage and hour) cases.

Economicstrikes Strikes undertaken to place pres-

sure on an employer to offer more satisfactory terms

and conditions of employment Undertaken to pressure

employers to meet employee negotiation demands.

Effort The amount of physical and mental exertion

required by a job.

ElectronicCommunicationsPrivacyAct(ECPA)

The act that has been used to challenge employer

incursions on the privacy of electronic communica-

tions. Employers (and others) are prohibited from

intentionally intercepting (through the use of elec-

tronic, mechanical, or other devices) wire, oral, or

electronic communications and from disclosing such

information. The intentional, unauthorized accessing

and disclosure of stored electronic communications are

also prohibited.

Employmentatwill The doctrine which holds that

in the absence of a contract promising employment for

a specified duration, the employment relationship can

be severed at any time and for any reason not specifi-

cally prohibited by law.

Employmentloss An employment termination,

other than a discharge for cause, voluntary departure,

or retirement. It stems from a plant closing or mass

layoff, including termination (other than a quit, dis-

charge for cause, or retirement), a layoff lasting more

than six months, or a greater than 50 percent reduction

in work hours during each month of any six-month

period.

Enforcementprocedure A wide variety of proce-

dures that exist for bringing and resolving claims

related to violations of employment laws.

English-onlyrules A rule curtailing the use of other

languages in the workplace.

EqualPayAct(EPA) An act that is targeted specifi-

cally at pay discrimination based on sex.

EquitabletollingA doctrine stating that if employ-

ees are unaware of their rights because they were

activelymisledbytheiremployerortheemployer

failed to meet its legal obligation to post information

in the workplace, a court might excuse an untimely

filing.