Employment Law Update
December 17, 2014
Thank you to everyone who participated in this year’s Employment and Labor Law Final Exam. We hope the exam was challenging and informative. Congratulations to Margi Fleming and Danisha Sheppard. Both Margi and Danisha will receive an awesome prize for their perfect scores.
Now for the answers:
- A South Carolina employer may garnish an employee’s wages in the following situations:
Answer: “C” is correct. South Carolina generally prohibits garnishment of wages, with three notable exceptions. First, a South Carolina employer may garnish an employee’s wages when the employee owes wages to the federal government or a state government. Second, a South Carolina employer may garnish wages pursuant to a Qualified Domestic Relations Order. Third, an employer may garnish an employee’s wages when a garnishment order has been entered in another state while the employee was a resident there and later moves to South Carolina.
- When considering whether to recognize as a bargaining unit a smaller group (or micro-unit) of employees that functions within a larger group of employees, the only two factors the National Labor Relations Board considers are 1) whether the employees work within the same department; and 2) whether the employees share the same supervisor.
Answer: “False” is correct. When faced with a union organizing effort, identification of the correct bargaining unit is a critical issue that can ultimately determine if an employer wins or loses an election. When analyzing whether a proposed group of employees that functions within a larger group of employees is in fact an appropriate bargaining unit (i.e., a micro-unit), the National Labor Relations Board will consider these factors: 1) whether the micro-unit employees all work within the same department, or even their own separate department; 2) whether the micro-unit employees have distinct skills and training; 3) whether the micro-unit employees have distinct job functions and perform distinct work; 4) whether the micro-unit employees are functionally integrated with other employees; 5) whether the micro-unit employees have frequent contact with employees not in the proposed micro-unit; 6) whether the employees have temporary or permanent interchange with other employees, (e.g., temporary or permanent transfers); 7) whether the micro-unit employees have distinct terms and conditions of employment; and 8) whether micro-unit employees share common supervision.
- The Family and Medical Leave Act applies to employers with 50 or more employees within a 75-mile radius. When determining whether an employer with multiple facilities meets the 50-employee threshold, what is the appropriate method to measure whether those facilities are within a 75-mile radius of one another?
Answer: “B” is correct. The FMLA is by design an employee-friendly statute. However, when determining whether 50 or more employees are employed within a 75-mile radius, distance between facilities is measured by surface road miles, which may not result in the most favorable result for employees.
- An individual sues her former employee for gender and religious discrimination under Title VII of the Civil Rights Act of 1964 and its 1991 amendments. The employer has about 150 workers. The employee is now with a different employer. At trial, the jury rules in the employee’s favor and determines she is entitled to an award of compensatory damages for back pay and punitive damages. How much may the jury award for punitive damages?
Answer: “D” is correct. The 1991 amendments to Title VII incorporated a damages cap for certain compensatory damages and punitive damages based upon the size of the liable employer. Back pay is not included in this calculation. For employers with 15 to 100 employees, the cap is $50,000; with 101 to 200 employees, $100,000; with 201 to 500 employees, $200,000; and with more than 500 employees, $300,000. So in this case, the maximum award of punitive damages would be $100,000.
- In a recent decision, the U.S. District Court for the District of South Carolina pointed out that the Equal Employment Opportunity Commission (EEOC) requires criminal background checks for all applicants. According to the EEOC’s own guidance, such a policy violates Title VII of the Civil Rights Act of 1964 if it excludes applicants from employment based on any criminal record.
Answer: “True” is correct. In 2012, the EEOC updated its guidance for employers who use criminal background checks as part of the applicant evaluation process. (The guidance can be found at http://www.eeoc.gov/laws/guidance.) In summary, the commission takes the position that an employer’s use of an individual’s criminal history may, in some instances, violate Title VII. The EEOC recommends that employers eliminate blanket policies that exclude applicants from employment based on any criminal record. It also takes the position that employers should limit inquiries about a prior criminal record to those records for which exclusion from employment would be related to the position in question and consistent with business necessity. Employers should also consider the type of crime and when the conviction occurred.
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We hope you have enjoyed this year’s exam. To stay current on employment and labor law developments in 2015 and beyond, be sure to read our monthly legal updates and attend our quarterly breakfast briefings in your area.