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.