Deck 12: The Employment Agreement

Question 1

For an H-1B visa to be issued to a non-U.S.citizen,the employer is generally required to show that it was unable to recruit qualified workers in the United States.

Answer 1

True

Question 2

Payment of workers' compensation is based on fault.

Answer 2

False

Question 3

In CASE 12.1 Edwards v.Arthur Andersen LLP (2008),the court ruled that Andersen wrongfully terminated the employee in violation of public policy after he refused to sign the invalid covenant not to compete.

Answer 3

True

Question 4

The WARN act requires employers to give written notice of the plant closing or layoff to each affected employee or representative of each affected employee.

Question 5

The Occupational Safety and Health Administration (OSHA)requires most employers to maintain records that list and summarize all work-related injuries and illnesses as well as post these lists annually at the job site.

Question 6

The federal Sarbanes-Oxley Act removed several federal whistleblower provisions applicable to nongovernment employees.

Question 7

Because federal law preempts the area,states have not enacted legislation regarding drug testing of private employees.

Question 8

The Patient Protection and Affordable Care Act prohibits insurers from denying health-care coverage or charging higher premiums due to preexisting conditions.

Question 9

In the United States v.Windsor case,the U.S.Supreme Court struck down the Defense of Marriage Act,holding that DOMA was an unconstitutional deprivation of liberty protected by the Fifth Amendment.

Question 10

About half of the states originally followed the employment-at-will rule.

Question 11

State and local governments are prohibited from complying with the overtime provisions of the Fair Labor Standards Act by giving employees compensatory time in lieu of overtime pay.

Question 12

In states that permit noncompete clauses,courts will enforce only reasonable restrictions on competition.

Question 13

Regarding drug testing,the Fifth Amendment's ban on unreasonable searches and seizures applies only to governmental activity.

Question 14

Section 7 of the NRLA gives union employees the right to engage in "concerted activities" for collective bargaining or other mutual aid or protection.​

Question 15

Even if an individual is an at-will employee,in most states the employer is prohibited from discharging the employee for a reason that violates public policy.

Question 16

The Fair Labor Standards act does not limit the number of hours that an employee may work in a workweek or workday,as long as the employee is paid appropriate overtime.

Question 17

Rights under the Employee Polygraph Protection Act can be waived in advance by the employee.

Question 18

Employers often require employees to sign confidentiality agreements to protect the employer's confidentiality obligations,which are generally enforceable as long as they are broadly tailored to cover all employer information an employee is exposed to.

Question 19

The National Labor Relations Act prohibits employers from discriminating against any employee to encourage or discourage membership in any labor organization.

Question 20

A private-sector employee can avoid at-will status by negotiating a contract that provides for a specific term of employment and defines how the contract can be terminated.

Question 21

Which of the following statements regarding private employer monitoring of employee e-mail on company-owned equipment is true?

A) Federal law prohibits private employers from monitoring employee e-mail on company-owned equipment.
B) Most states have state laws prohibiting private employers from monitoring employee e-mail on company-owned equipment.
C) Most states allow private employers to monitor employee e-mail on company-owned equipment,but employees must first be warned that the e-mail will be monitored.
D) Most courts have upheld a private employer's right to monitor employee e-mail on company-owned equipment.

Question 22

A covenant not to compete is a device,ancillary to another agreement (such as an employment contract),that is designed to protect a company's interests.Which of the following would NOT be within the scope of a noncompete clause?

A) Preventing an employee from revealing proprietary information about clients
B) Limiting a former employee's ability to use trade secrets when working for a competitor
C) Limiting the area in which a former employee can set up a competing business
D) Limiting a former employee's ability to hire away colleagues or take clients from the former employer

Question 23

The National Labor Relations Act prohibits employers from interrogating employees about union sentiment or activity.

Question 24

What type of statutes protects employees who report illegal activities going on within their company?

A) Reporting statutes
B) Revealing statutes
C) Discovery statutes
D) Whistleblower statutes

Question 25

The U.S.Supreme Court struck down Arizona's Legal Arizona Worker's Act of 2007 because it went beyond the Immigration Reform and Control Act's savings clause that preempts states from imposing civil or criminal sanctions on employers hiring aliens other than through licensing or similar laws.

Question 26

In certain states,a binding contractual obligation can be created by policy stated in a personnel manual that employees will be terminated only for good cause,along with oral assurances of the same as long as the employee does his or her job properly.

Question 27

Which of the following statements is typically true of a state workers' compensation statute?

A) The system is no-fault.
B) The system is based on the principle that the risks of injury in the workplace should be borne by the state.
C) An employee is entitled to benefits that correspond to the level of safety in the work environment.
D) An employee is entitled to benefits to the degree to which the employee's carelessness contributed to the incident.

Question 28

__________ purport to give an employer the right to recoup some or all of an employee's stock option gain if he or she goes to work for a competitor within a certain period of time following exercise of the option.

A) Climb back provisions
B) Incline clauses
C) Let loose clauses
D) Clawback provisions

Question 29

Which of the following provides whistleblower protection for employees who provide information of illegality to the SEC?

A) The Employee Retirement and Protection Income Security Act
B) The Dodd-Frank Wall Street Reform and Consumer Protection Act
C) The Wagner Act
D) The SEC Accountability and Reform Act to Protect Consumer Investors

Question 30

If an employee works more than 40 hours in a workweek,what are an employer's requirements concerning compensation for that employee?

A) The employee is paid one and one-half times the regular rate of pay for the number of hours worked over 40.
B) The employee is paid the regular rate of pay for all hours worked and given compensatory time off for the number of hours worked beyond 40 hours.
C) The employee receives two times the regular rate of pay for the number of hours worked over 40.
D) The employee is paid 1.2 times the regular rate of pay for all hours worked during that week.

Question 31

Which of the following statements best describes a 401(k)plan?

A) It is an employee stock purchase plan that can provide numerous tax and other benefits for employees.
B) It is a defined contribution pension plan funded with contributions by the participants or a combination of participant and employer contributions.
C) It requires an employer to provide timely notice to its employees of a proposal to close a plant or to reduce its workforce permanently.
D) It gives the administrator discretionary authority to determine eligibility for benefits or to interpret the plan.

Question 32

In 2015,President Obama increased the minimum wage for employees of federal contractors to:

A) $10.10 per hour.
B) $8.88 per hour.
C) $6.75 per hour.
D) $15.00 per hour.

Question 33

Which of the following best describes OSHA's requirements regarding posting of information?

A) OSHA requires that notices of any potentially dangerous conditions be posted.
B) OSHA requires that any citations for violations be posted.
C) OSHA requires that notices of any potentially dangerous conditions be posted and also that citations for penalties be posted.
D) OSHA does not have any posting requirements.

Question 34

The Nat'l Treasury Emps.Union v.Von Raab case involved the testing of U.S.Customs Service employees in line for transfer or promotion to certain sensitive positions involving drug interdiction or the handling of firearms.How did the U.S.Supreme Court rule?

A) The drug testing would be allowed only if the government could establish evidence of a drug problem among that group of customs employees.
B) The drug testing was illegal and unconstitutional.
C) The drug testing was justified by the need for national security and by the extraordinary safety hazards attendant to the positions involved.
D) The drug testing would be allowed because the customs employees,as public employees,had no greater rights than private employees.

Question 35

According to the Fair Labor Standards Act,when an employee is asked to be on standby-that is,available to return to work while off duty,which of the following statements about compensation is true?

A) If an employee is asked to be on standby,the hours spent on standby will not be counted as hours worked if the employee is generally free to use the time for his or her own purposes.
B) If an employee is asked to be on standby,the hours spent on standby will be counted as hours worked for which the employee is entitled to compensation even if the employee is generally free to use the time for his or her own purposes.
C) If an employee is asked to be on standby,the hours spent on standby will be counted as hours worked; but the employee is only entitled to one-half of the employee's regular pay for those hours.
D) If an employee is asked to be on standby,the hours spent on standby will be counted as hours worked; but the employee is only entitled to three-fourths of the employee's regular pay for those hours.

Question 36

In 1938,the FLSA set the first minimum wage at:

A) $1.00 per hour.
B) $2.50 per hour.
C) 50 cents per hour.
D) 25 cents per hour.

Question 37

The federal agency responsible for enforcing the provisions of the Occupational Safety and Health Act is the:

A) Occupational Safety and Health Administration.
B) Safe Workplace Administration.
C) Health in the Workplace Administration.
D) Federal Employment Oversight Administration.

Question 38

Which of the following statements regarding genetic discrimination by employers is NOT true?

A) States may enact laws prohibiting discrimination in employment based on genetic characteristics.
B) States may enact laws prohibiting employers from requiring applicants or employees to undergo genetic testing.
C) States may enact laws banning discrimination based on genetic test results or the refusal to take a genetic test.
D) States cannot limit genetic testing of employees who are exposed to dangerous chemicals.

Question 39

Which of the following are generally NOT subject to the employment-at-will rule?

A) Public employees
B) Employees who have express employment contracts for a fixed term and public employees
C) Public employees and union employees
D) Public employees,employees who have express employment contracts for a fixed term,and union employees

Question 40

Under federal law,it is illegal to employ anyone under the age of __________,except in specified agricultural occupations.

A) 14
B) 15
C) 16
D) 17

Question 41

In a(n)__________,the employer guarantees that the participant will receive an annual benefit for life following retirement,or the actuarial equivalent of such a benefit,based on a formula in the plan regardless of contributions made or the plan's investment performance.

A) defined contribution pension plan
B) 401(k)plan
C) employee stock ownership plan
D) defined benefit pension plan

Question 42

Employees who must be paid both minimum wage and overtime as required by the Fair Labor Standards Act are referred to as __________ employees.

A) exempt
B) nonexempt
C) covered
D) accommodated

Question 43

In CASE 12.2,Edwards v.Arthur Andersen LLP (2008),plaintiff Edwards was a tax manager at an Arthur Andersen office in Los Angeles.Arthur Andersen was later indicted for its role in the Enron debacle,but the AA subsidiary HSBC offered to hire Edwards on the condition that he sign a "termination of non-compete" agreement (TONC).Edwards signed the employment offer but not the TONC.The offer was rescinded and Edwards was terminated.Edwards sued.The main issue dealt with California's statutory ban on most:

A) employee surveillance tactics.
B) clawback agreements.
C) confidentiality agreements.
D) noncompete agreements.

Question 44

The __________ prohibits employers from using genetic information to make decisions about hiring,firing,or compensation.

A) Family Medical History Act
B) Genetic Prohibition and Protection Act
C) Privacy in Testing Act
D) Genetic Information Nondiscrimination Act

Question 45

Which of the following federal laws governs most employer-sponsored retirement plans as well as many other types of employer-sponsored employee benefit plans?

A) The Consolidated Omnibus Budget Reconciliation Act
B) The Employee Retirement Security Act
C) The National Labor Relations Act
D) The Fair Labor Standards Act

Question 46

Employers must complete a(n)_____ form showing verification of identity and employment eligibility of all persons hired.

A) A-12
B) I-9
C) Imm.1
D) A1

Question 47

Which of the following statements regarding drug testing of public and private employees by employers is true?

A) There are greater limits on drug testing in relation to public employees as compared to private employees because public employees have rights under the U.S.Constitution.
B) There are greater limits on drug testing in relation to private employees as compared to public employees because private employees have rights under the U.S.Constitution.
C) The limits on drug testing are the same in relation to public and private employees because both categories of employees have rights under the U.S.Constitution.
D) There are no U.S.Constitutional limits on drug testing in relation to either public or private employees because neither category has rights under the U.S.Constitution.

Question 48

Programs in effect in some states requiring employers to pay employees wages approximating the real cost of living in the locality are called __________ ordinances.

A) real cost
B) estimated expense
C) living wage
D) accurate wage

Question 49

The "Inside Story" focuses on Employers' Policies Regarding Employees' Use of Social Media.The NLRB issued guidelines to protect employees' use of social media,especially concerning:

A) concerted activity under Section 7 of the NLRA,including communication to each other about wages,hours,and working conditions.
B) concerted activity under Section 12 of the NRLA,including communication to each other about wages,hours,and working conditions.
C) unfair labor practices under Section 1 of the NRLA,including retaliation emails.
D) a public sector employee's right to freedom of speech and collective bargaining information.

Question 50

Maillol just got out of law school and went to work at Big Law Firm.As a first assignment,Maillol is helping a partner who was recently reassigned to the employment law section of the firm.The partner asks Maillol to provide information regarding the legality of drug testing.What four factors should Maillol tell the partner are considered in determining whether drug testing will be deemed permissible in a particular situation?

Question 51

In the Harris v.Quinn case,the State of Illinois attempted to compel __________ chosen by Medicaid to pay their __________ fees to the bargaining representative representing their union.

A) public sector employees; union
B) union workers; fair share
C) homecare personal assistants; fair share
D) employers; employees' fair share

Question 52

The implied covenant of good faith and fair dealing recognized a bad-faith exception to:

A) the at-will employment relationship.
B) a clawback provision.
C) defined benefit pension plan.
D) the secondary boycott.

Question 53

Joey is the owner of a manufacturing company called ProfitMax.Joey finds out that a union is attempting to organize the employees at ProfitMax.Joey indicates to company supervisors that they will never deal with a union and that ProfitMax has no plans to pay a higher wage if the union is elected.Joey plans to tell supervisors that they may not encourage union activity.Joey also has plans to do surveillance regarding which employees attend union meetings so that they can be fired.An announcement will be made to all employees that anyone voting against the union will get a raise.What will you tell Joey about obligations if the union gets elected and whether these other plans are legal? What can Joey expect from the supervisors,some of whom apparently support the union?

Question 54

Generally,employees who earn less than _____ per week are automatically considered eligible for minimum wage and overtime as required by the Fair Labor Standards Act.

A) $240
B) $300
C) $455
D) $550

Question 55

In the Garcetti v.Ceballos case,Ceballos,a deputy district attorney with Garcetti's Los Angeles District Attorney's office,wrote a memo to his supervisors recommending they dismiss a case based on factual inaccuracies in the affidavit that secured a search warrant.Thereafter,Ceballos claimed he suffered retaliation and denial of promotion,and filed suit against the DA's office claiming violations of his First,Fourth,and Fifth Amendment rights.The U.S.Supreme Court held:

A) against Ceballos,finding that his First Amendment right was not violated because he breached the attorney-client confidentiality agreement.
B) against Garcetti,finding that the DA's office had violated the federal whistleblower statute.
C) against Ceballos,finding that his First Amendment right was not violated because Ceballos spoke as an employee of the DA's office,not as a citizen.
D) against Garcetti,finding that Ceballos' First Amendment rights were violated because Ceballos spoke as an employee of the DA's office,protecting the public.

Question 56

List the factors set forth in the text that may give rise to an implied obligation to discharge the employee only for good cause in jurisdictions recognizing the contract-based implied contract judicial exception to the employment-at-will rule.

Question 57

Bennie works for Bad Taste,Inc.,and has been employed there for more than 12 years without a written employment contract.Last year Bennie was promoted to the position of executive assistant.The company policy manual issued six years ago promises that no employee may be terminated without two prior written warnings regarding poor job performance.Bennie has always received excellent job reviews.Recently the president resigned and was replaced by Finley,who promised to improve productivity by 20 percent.Finley is replacing Bennie with Skylar,who was Finley's former executive assistant.What claims may Bennie make against Bad Taste,Inc.,for wrongful discharge? Does the company have any defenses? Discuss fully.

Question 58

Which of the following statements regarding employment laws within the European Union is true?

A) The European Union has attempted to bring uniformity to the laws related to termination of employment.
B) No member states of the European Union recognize the U.S.concept of employment at will.
C) The European Union has attempted to bring uniformity to the laws related to termination of employment,but laws of the United Kingdom provide significantly more benefits and legal protection to employees than do the employment laws of France.
D) In order to facilitate trade,the European Union has mandated that all member states apply the same laws regarding employment.

Question 59

What standards are applied to judicial review of ERISA decisions by plan administrators?

Question 60

Explain the difference between exempt and nonexempt employees and how overtime hours are handled for each category.