A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

A

Act - The documented result of a formal process by congress or state legislatures, designed to establish a new statute or change (amend) an old one. Each of the Federal discrimination acts is an example. See also  Bill.

Ad hoc - A Latin phrase meaning "for this," as in for this special purpose. An ad hoc committee, for instance, is not a permanent or standing committee, but exists only as long as the committee's special job remains to be done.

Adjudication - Giving or pronouncing a judgment or decree. Also the judgment given.

Administrative Law Judge - An official who presides over administrative-law proceedings with the authority to make decisions that are legally binding, similar to a civil court judge. (Administrative law regulates government agencies.) Called an administrative judge or ALJ for short.

Administrator - As defined by the changes to the FLSA in August 2004, an administrator is one who "exercise discretion and judgment on matters of significance", but not necessarily those workers in "a position of responsibility."

Admissible Evidence - Evidence that can be legally and properly introduced in a civil or criminal trial.

Admission - A statement tending to establish the guilt or liability of the person making the statement.

Adversary System - The system of trial practice in the United States and some other countries in which each of the opposing, or adversary, parties has the opportunity to present and establish opposing contentions before the court.

Affiant - The person who makes and subscribes an affidavit.

Affidavit - A voluntary, written, or printed declaration of facts, confirmed by oath of the party making it before a person with authority to administer the oath.

Affirmative Defense - A defense raised in a responsive pleading (answer) relating a new matter as a defense to the complaint; affirmative defenses might include contributory negligence or estopped in civil actions; in criminal cases insanity, duress, or self-defense might be used.

Affirmed - In the practice of appellate courts, the word means that the decision of the trial court is correct.

Alien - A foreign-born person who has not qualified as a citizen of the country.

Allegation - A statement of the issues in a written document (a pleading) which a person is prepared to prove in court.

Alter Ego - A Latin phrase meaning another self. An alter ego company may result when the same owner and manager of one company shuts down operations and reopens with a new name, when it is actually the same business.

Amicus curiae - A Latin phrase meaning a friend of the court. A person who has no right to appear in a suit but is allowed to introduce argument or evidence, usually in the form of a brief, to protect his interests.

Animus, Anti-Union - Animus is a Latin term meaning mind, attitude, intention or disposition. Anti-union animus is the official term for anti-union sentiments that may affect various management actions and result in union organizers, members or representatives being harassed.

Appeal - A proceeding brought to a higher court to review a lower court decision.

Appearance - The act of coming into court as a party to a suit either in person or through an attorney.

Appellate Court - A court having jurisdiction to hear appeals and review a trial court's procedure.

Arbitrary - A phrase describing an action or decision which is made without cause or without consideration of an objective standard, and is fundamentally random in nature.

Arbitration - A method of settling a labor-management dispute by having an impartial third party hold a formal hearing, take testimony and render a final and binding decision. See also "interest arbitration" and "rights arbitration"

Arbitrator - A neutral third party who helps to resolve disputes between employers and employees during arbitration, and whose final decisions are legally binding. Compare to Mediator.

Attorney of Record - The principal attorney in a lawsuit, who signs all formal documents relating to the suit.

Attorneys' Fees - Successful FLSA Plaintiffs are entitled to an additional award for "reasonable attorneys' fees" (plus reimbursement for many out-of-pocket expenses incurred in litigating the lawsuit). Employees are not responsible for paying an employer's attorneys' fees unless their lawsuit is frivolous.

At-Will - Under common-law, this phrase describes the relationship between employer and employee that exists without a written contract or other agreement guaranteeing job security. An at-will employee may be terminated at the will of the employer without reason or cause.

B

Bargaining Unit - A group of employees who share a unionized workplace, perform like job duties, and likely share similar interests when it comes to pay, hours and other working conditions. A bargaining unit typically works under a collective bargaining agreement. A bargaining unit might include nonunion employees who are entitled to many of the same union rights as union employees under the agreement, such as taking work breaks.

Bench - The seat occupied by the judge. More broadly, the court itself.

Bench Trial - (Also known as court trial.) Trial without a jury in which a judge decides the facts.

Beyond a Reasonable Doubt - The standard in a criminal case requiring that the jury be satisfied to a moral certainty that every element of a crime has been proven by the prosecution. This standard of proof does not require that the state establish absolute certainty by eliminating all doubt, but it does require that the evidence be so conclusive that all reasonable doubts are removed from the mind of the ordinary person.

Bill - A written proposal or draft submitted to a legislative (e.g., U.S. Senate or House of Representatives) for consideration as a new or amended Act.

Bona Fide - Sincerely offered in good faith, absent of fraud or deceit.

Breach - Violation of a law, principle, standard or obligation. For example, ignoring a contractual obligation might be breach of contract. See also Collective Bargaining Agreement, Explicit Contract and Implied Contract.

Brief - A written argument by counsel arguing a case, which contains a summary of the facts of the case, pertinent laws, and an argument of how the law applies to the fact situation. Also called a memorandum of law.

Burden of Proof - In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a lawsuit. The responsibility of proving a point (the burden of proof). It deals with which side must establish a point or points. (See standard of proof.)

C

Capricious - A phrase describing an action or decision which is made without cause or without consideration of an objective standard, and is totally subject to the whim or pleasure of the person or party in power.

CBA - Collective Bargaining Agreement; also known as "Labor Agreement" or "Union Contract".

Certiorari - A writ of review issued by a higher court to a lower court. A means of getting an appellate court to review a lower court's decision. If an appellate court grants a writ of certiorari, it agrees to take the appeal. (Sometimes referred to as "granting cert.")

Challenge - An objection, such as when an attorney objects at a hearing to the seating of a particular person on a civil or criminal jury.

Challenge for Cause - A request from a party to a judge that a certain prospective juror not be allowed to be a member of a jury because of specified causes or reasons.

Change of Venue - Moving a lawsuit or criminal trial to another place for trial.

Charge to the Jury - The judge's instructions to the jury concerning the law that applies to the facts of the case on trial.

Circumstantial Evidence - All evidence except eyewitness testimony. One example is physical evidence, such as fingerprints, from which an inference can be drawn.

Class Action - A lawsuit in which the plaintiffs proceed not only on their own behalf, but on behalf of all others similarly situated or affected. Class action status can only be accorded by a court after certain requirements have been met.

Clause - A distinct section, condition or requirement stipulated in a legal document, such as an employment agreement or contract.

Clerk of Court - Administrator or chief clerical officer of the court.

Closing Argument - The closing statement, by counsel, to the trier of facts after all parties have concluded their presentation of evidence.

Code - A collection of statutes or rules and regulations that enforce statutes, or all three combined.

Coerce - To force or compel to perform an act or make a choice by threat.

Coercion - Economic or other pressure exerted by an employer to prevent the free exercise by employees of their right to self-organization and collective bargaining; also, intimidation by a union or fellow workers to compel affiliation with the union.

Collective Bargaining Agreement - An explicit contract of employment negotiated by union representatives and employers who employ members of the same union. After negotiations, union members typically have the opportunity to accept or decline new collective bargaining agreements through a voting process. Collective bargaining agreements may expand the minimum provisions or make up for their absence in Federal and state, labor and employment laws. For example, if state employment laws do not require employers to give employee rest or meal breaks, a collective bargaining agreement may do so.

Color of Law - The appearance of semblance, without the substance, of legal right. Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state, is action taken under "color of state law."

Common Law - Also called case law or case law, it's a body of law based on the outcome of court cases. Consequently, alleged violations of common law typically must go through the courts for resolution.

Compensatory Time ("Comp. Time") - Employers sometimes allow their employees to take time off in lieu of overtime called compensatory time.  Comp time instead of cash for overtime is not generally permitted for non-government employers. Non-government employers who have such systems are almost always in violation of the law and owe employees for unpaid overtime.

Consent Agreement - In an organizing campaign, this is an agreement (NLRB Form 651) between the employer and the union that they will be bound by the decision of the NLRB's Regional Director and waive the right to appeal to the NLRB in Washington. See also Stipulation for Certification.

Consent Decree - An agreement worked out under the guidance and with the help of the NLRB which, therefore, has the effect of a court order on both labor and management parties.

Constitution - The fundamental law of a nation or state which establishes the character and basic principles of the government.

Constructive Discharge - In some cases, a resignation provoked by management harassment so unbearable that the resignation may be construed by the court or an arbitrator as a form of discharge, restoring the employee's right to grieve or hold the employer liable for violating the employee's due process rights.

Contingency Fee - An arrangement made with a lawyer who thereby agrees not to require any fees or retainer, but will take payment from the client only if and when a settlement or award is won. When attorneys take cases on contingency, they collect fees after they win the cases or settle them out of court. Typically, attorneys charge contingency fees at rates ranging from 33 to 40 percent of the awards they win for their clients. Attorneys who lose cases while working on contingency typically charge nothing or relatively small fees, such as only for expenses incurred.

Continuance - Postponement of a legal proceeding to a later date.

Contract-Bar Rules - Rules applied by the labor board which prevent or bar a union representation election for the period of time during which an existing contract between a union and the employer is in effect, or for one year after a valid election has taken place.

Corroborating Evidence - Supplementary evidence that tends to strengthen or confirm the initial evidence.

Covenant of Good Faith and Fair Dealing - An implied agreement that it's the duty of employers to treat employees honestly, fairly and ethically, especially dedicated, long-term employees. Examples of an employer's breach of this covenant include firing employees to avoid granting them earned rewards, fabricating reasons to fire or layoff employees, and coercing employees to quit. (See also Constructive Discharge.) Only a few states recognize breach of this covenant as an exception to the Doctrine of Employment at Will. Compare to Implied Contract.

Cross-Examination - The questioning of a witness produced by the other side.

D

Damages - Cash which may be recovered in the courts by any person who has suffered a loss or injury as a result of another's unlawful or negligent act or omission. see also Liquidated damages, Punitive damages, and Tort.

De Minimis - Short for the Latin phrase, de minimis non curat lex, which means the law does not concern itself about trifles. This phrase may be used to describe a violation of law which is so small that it is not worth litigating.

De Novo - Latin for anew or afresh. An appeal hearing is de novo when all evidence and proof considered at the prior hearing must be reintroduced and reconsidered.

Decertification - The withdrawal by the labor board of a union's designation as exclusive representative usually as a result of the loss of an election called for by employee petition.

Decision - The opinion of the court in concluding a case at law.

Decree - An order issued by a government or court. Such an order typically has legal force.

Default Judgment - A judgment entered against a party who fails to appear in court or respond to the charges.

Defendant - The person defending or denying a suit.

Department of Labor - The cabinet of the executive branch of the government of the United States that regulates the interaction of employees and employers. The Department of Labor administers and enforces the FLSA.

Direct Evidence - Proof of facts by witnesses who saw acts done or heard words spoken.

Direct Examination - The first questioning of witnesses by the party on whose behalf they are called.

Discovery - The name given pretrial devices for obtaining facts and information about the case.

Dismissal - The termination of a lawsuit.

Dissent - To disagree. An appellate court opinion setting forth the minority view and outlining the disagreement of one or more judges with the decision of the majority.

Docket - An abstract or listing of all pleadings filed in a case; the book containing such entries; trial docket is a list of or calendar of cases to be tried in a certain term.

Doctrine - A legal principle or concept that is established through past decisions (e.g., court cases) and widely upheld.

Due Process of Law - The right of all persons to receive the guarantees and safeguards of the law and the judicial process. It includes such constitutional requirements as adequate notice, assistance of counsel, and the rights to remain silent, to a speedy and public trial, to an impartial jury, and to confront and secure witnesses.

E

En Banc - All the judges of a court sitting together. Appellate courts can consist of a dozen or more judges, but often they hear cases in panels of three judges. If a case is heard or reheard by the full court, it is heard en banc.

Equal Employment Opportunity - Often abbreviated as EEO, it means that job candidates and employees are to be treated equally in employment matters, regardless of age, creed, disability, national origin, race, religion or gender. Equal employment opportunity is enforced by discrimination laws. In turn, they are sometimes referred to as equal employment opportunity laws or EEO laws for short.

Equal Protection of the Law - The guarantee in the Fourteenth Amendment to the U.S. Constitution that all persons be treated equally by the law.

Evidence - Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.

Ex Parte - On behalf of only one party, without notice to any other party. For example, a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing.

Exclusion of Witnesses - An order of the court requiring all witnesses to remain outside the courtroom until each is called to testify, except the plaintiff or defendant. The witnesses are ordered not to discuss their testimony with each other and may be held in contempt if they violate the order.

Exclusionary Rule - The rule preventing illegally obtained evidence to be used in any trial.

Executive - As defined by the changes to the FLSA in August 2004 an executive is anyone has who have the power to hire, fire, and make employee status decisions for two or more employees.

Executive Order - An order issued by the U.S. President which has the force and effect of law.

Exempt Employee - An employee not covered by FLSA overtime rule protection, i.e., exempt employees are not entitled to be paid overtime. Generally, exepmt employees are bona fide executive, administrative, or professional employees. They must be paid on a salary (or fee) basis and must perform the duties of an exempt employee. If an employee is paid on an hourly basis (with very few exceptions) he is not an Exempt employee, but is a Nonexempt employee.

Exhibit - A document or other item introduced as evidence during a trial or hearing.

Expert Testimony - Testimony given in relation to some scientific, technical or professional matter by experts, i.e., person qualified to speak authoritatively by reason of their special training, skill or familiarity with the subject.

F

Fair Labor Standards Act (FLSA) - A group of laws first enacted in 1938 that established regular working hours, overtime pay at time and a half regular wages, and prohibited using minors in a number of occupations. It has been amended many times over the years, most importantly in August 2004. Also known as the "Garcia Act,” it is at 29 U.S.C. §§ 201 et seq.

False Claims Act (FCA) -  Although it's not a Federal labor law per se, its employment-related provisions entitle employees to take qui tam legal actions against their employers for defrauding the Federal Government, without fear of retaliation. Better yet, employees who sue under the Act on behalf of the Federal Government receive a share of monetary damages awarded. Some states have passed their own versions, to deter and punish for fraud against state governments.

Fiduciary Obligation - The obligation or trust imposed by law on officials of an organization making them liable for the proper use and disbursement of the organization's money, funds and property. As applied to a pension fund trustee or a union officer, the duty to act exclusively for the benefit of the plan participants, or union members, respectively.

Fifth Amendment - Among other rights, the Fifth Amendment to the U.S. Constitution guarantees that a person cannot be compelled to present self-incriminating testimony in a criminal proceeding.

Finding - Formal conclusion by a judge or regulatory agency on issues of fact. Also, a conclusion by a jury regarding a fact.

Fine - A sum of money paid as part of a penalty of conviction for a particular criminal offense.

First Amendment - Guarantees freedom of speech, freedom of religion, freedom of the press and freedom of assembly. However, to avoid consequences, exercising these rights typically may not significantly interfere with your employment relationship or job performance. The first 10 Amendments to the Constitution are collectively referred to as the Bill of Rights.

Fourteenth Amendment - Among other matters, the 14th Amendment to the U.S. Constitution prohibits states from depriving any person of life, liberty, or property without adequate due process.

Fourth Amendment - The 4th Amendment to the U.S. Constitution protects every person against unreasonable search and seizure by government officials.

Fraud - Intentionally twisting the truth or knowingly concealing facts. Employers might be guilty of fraud, for example, if they lie about the advantages or disadvantages of the jobs they're offering or as guise to illegally discharge employees.

G

Garnishment - A legal proceeding in which a debtor's money, in the possession of another (called the garnishee) is applied to the debts of the debtor, such as when an employer garnishes a debtor's wages.

Good Cause - A specific, legally-justifiable or legitimate business reason. Also referred to as just cause, reasonable cause or simply cause. Laying off employees to relieve financial distress and firing employees for gross misconduct are each examples of good cause for employers to discharge employees, under the Doctrine of Employment at Will. Serious, job-related problems might be good cause for employees to quit, such as to still be eligible to collect state unemployment benefits, especially if the employees sincerely tried to resolve the problems before quitting.

Grand Jury - A jury of inquiry whose duty it is to receive complaints and accusations in criminal matters and if appropriate issue a formal indictment.

H

Harmless Error - An error committed during a trial that was corrected or was not serious enough to affect the outcome of a trial and therefore was not sufficiently harmful (prejudicial) to be reversed on appeal.

Hearing - A formal proceeding (generally less formal than a trial) with definite issues of law or of fact to be heard. Hearings are used extensively by legislative and administrative agencies.

Hearing de Novo - A full new hearing.

Hearsay - Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court.

Hostile Environment - Continuous, low level discriminatory remarks or behaviors that cumulatively 'poison' the workplace for the aggrieved victim enough to alter the terms, conditions or privileges of the workplace, and are commonly considered by the courts and the EEOC as equivalently unlawful to more overt forms of discrimination.

Hostile Witness - A witness whose testimony is not favorable to the party who calls him or her as a witness. A hostile witness may be asked leading questions and may be cross-examined by the party who calls him or her to the stand.

Hours Worked - FLSA wages are determined by the number of hours an employee actually works. Thus, "off the clock" work counts, but holidays, sick days, or other days off do not count as FLSA hours worked. Employees must be compensated for all hours worked whether they are counted or not by the employer. 

Hung Jury - A jury whose members cannot agree upon a verdict.

I

Immigrants - Persons who come into a foreign country or region to live.

Immigration - The entry of foreign persons into a country to live permanently.

Immunity - Grant by the court, which assures someone will not face prosecution in return for providing criminal evidence.

Impanel - To seat a jury. When voir dire is finished and both sides have exercised their challenges, the jury is impaneled. The jurors are sworn in and the trial is ready to proceed.

Impeachment of a Witness - An attack on the credibility (believability) of a witness, through evidence introduced for that purpose.

Implied Contract - Short for implied-in-fact contract, it's an agreement that is not explicitly in writing, but presumably intended by all parties involved. A manager's oral promise, a statement in an employee manual, a company policy, a chain of positive employee merit reviews, and a company's historical actions are each examples of what might constitute an implied contract between an employer and employee. Often, what constitutes an implied contract infers a "promise" of continued or permanent employment. Several states recognize breach of implied contract as an exception to the Doctrine of Employment at Will. However, employers might require new-hires to sign agreements, in which they acknowledge that documents, such as policy manuals, do not constitute contracts. If so, implied contracts based on documents might be null and void.

In Loco Parentis - "In the place of the parent"; refers to actions of a custodian, guardian or other person acting in the parent's place.

Inadmissible - That which, under the rules of evidence, cannot be admitted or received as evidence.

Incapacity - Lack of legal ability to act; disability, incompetence; lack of adequate power.

Independent Contractor - An independent contractor is a generally a person who works for more than one company and who controls his or her work in almost all respects. If a company exercises control over how a person performs their job (including setting prices and heavily restricting or eliminating decision-making authority, then the person is probably an "employee" who is likely entitled to overtime.

Injunction - A written court order (writ) requiring one or more individuals or organizations to engage in or cease engaging in the act specified.

Interlocutory - Temporary; provisional; interim; not final.

J

Joint Employment -- Dual Employment - "Joint employment" refers to employees working the same job for two "different" employers. All hours must generally be aggregated, and each joint employer is equally responsible for wages, unless they are truly "separate and independent." "Dual employment" refers to employees performing separate jobs for the same employer. All hours must generally be aggregated for purposes of FLSA overtime wage computations.

Judge - A presiding officer of the court.

Judgment - The official and authentic decision of a court of justice upon the rights and claims of parties to an action or suit submitted to the court for determination.

Judicial Review - The authority of a court to review the official actions of other branches of government. Also, the authority to declare unconstitutional the actions of other branches.

Jurisdiction - The power or authority of a court to hear and try a case; the geographic area in which a court has power or the types of cases it has power to hear.

Jury - A certain number of men and women selected according to law and sworn to try a question of fact or indict a person for public offense.

K

Knowingly - With knowledge, willfully or intentionally with respect to a material element of an offense.

L

Legislate - To make laws as does a legislative branch of government, also referred to as a legislature.

Liable - Legally responsible to another or the general public and enforceable through civil or criminal legal action (e.g., private lawsuit or criminal court case).

Liquidated Damages - Successful plaintiffs are usually entitled to recover double the amount of improperly unpaid back wages. This is called "liquidated damages" and is awarded in lieu of interest. Plaintiffs are entitled to this extra payment unless the employer can show they had a good faith belief that they were following the law and that they had reasonable grounds for believing they were complying with the law.

M

Magistrate - Judicial officer exercising some of the functions of a judge. It also refers in a general way to a judge.

Malicious - Intent to cause harm without justification and regard for legal rights.

Marshal - The executive officer of the federal court.

Material Evidence - Evidence which is relevant to the issues in a case.

Meal Periods - The FLSA does not require that employer provide meal periods or lunch breaks. However, if the employer provides a meal period, the meal period must be counted as compensable hours worked unless the employees in actually relieved from job duties and the employees spends the meal period predominantly for his or her own benefit.

Mediation - The attempt by an impartial third party, called a mediator, to bring the parties in a dispute together and assist them in reaching settlement. The mediator, however, has no power to force or award a settlement but works instead to persuade the parties to reach agreement.

Mediator - A neutral third party who helps to resolve disputes between employers and employees during mediation. A mediator typically does not issue a final decision, but rather facilitates negotiations among the opposing parties. Agreements reached among the parties are typically not legally binding, but rather depend on honesty and integrity to uphold them. Compare to Arbitrator.

Minor - A person under the age of legal competence.

Minute Book - A book maintained by the courtroom deputy (bailiff), which contains minute entries of all hearings and trial conducted by the judge.

Mistrial - An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again from the selection of the jury.

Moot - A moot case or a moot point is one not subject to a judicial determination because it involves an abstract question or a pretended controversy that has not yet actually arisen or has already passed. Mootness usually refers to a court's refusal to consider a case because the issue involved has been resolved prior to the court's decision, leaving nothing that would be affected by the court's decision.

Motion - An application made to a court or judge which requests a ruling or order in favor of the applicant.

Motion in Limine - A motion made by counsel requesting that information which might be prejudicial not be allowed to be heard in a case.

N

Naturalization - Process by which a person acquires nationality after birth and becomes entitled to privileges of citizenship.

Nepotism - Favoring friends or relatives when making employment decisions, with little to no regard for anything but the relationships. Nepotism is not specifically outlawed under Federal employment discrimination laws, but still might constitute discrimination.

Non Campos mentis - Not of sound mind; insane.

Nonexempt Employee - An employee covered by FLSA overtime rule protection. See exempt employee.

Nonjury Trial - Trial before the court but without a jury.

Null and Void - Not legally binding or enforceable. For example, a court might declare an explicit contract null and void despite that all signing parties initially agreed to it, explicit contract if any of its clauses weren't legally-valid in the first place or it was signed under duress.

O

Oath - A solemn pledge made under a sense of responsibility in attestation of the truth of a statement or in verification of a statement made.

Objection - The process by which one party takes exception to some statement or procedure. An objection is either sustained (allowed) or overruled by the judge.

Off-the-Clock Work - Work performed outside the constraints of a normal work period. Homework, maintenance, repair, and staying late can constitute off the clock work. Employers must quantify the amount of work their employees perform off the clock and compensate them accordingly. Many FLSA cases involve employers not capturing and compensating off-the-clock work by employees.

Opening Statement - The initial statement made by attorneys for each side, outlining the facts each intends to establish during the trial.

Opinion - A judge's written explanation of a decision of the court or of a majority of judges. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the decision of the court but offers further comment. (A per curiam opinion is an unsigned opinion "of the court.")

Oral Argument - Presentation of a case before a court by spoken argument; usually with respect to a presentation of a case to an appellate court where a time limit might be set for oral argument.

Order - A mandate, command, or direction authoritatively given. A written command or instruction issued by a judge, court or administrative governmental agency, that has legal force. Such an order issued by the President of the United States is referred to as an executive order or presidential executive order. Orders often amend or become regulations.

Ordinance - A law, regulation or decree, especially at the municipal (town, city or county) level.

Overrule - A judge's decision not to allow an objection. Also, a decision by a higher court finding that a lower court decision was in error.

Overtime - The FLSA determines overtime is any time a worker works more that 40 hours in a week. Individual state laws can have their own overtime laws, but all must accommodate workers who work more than 40 hours a week.

P

Pay in Lieu of Notice - Also called in-lieu-of-notice pay, it means pay instead of notice. Employers might be required by employment or labor laws, explicit contracts, collective bargaining agreements, or their own policies or plans, to give advance notice of employment terminations such as layoffs. If employers fail to give such notice, they might be required to compensate affected employees in the form of back pay or pay in lieu of notice. For example, the Worker Adjustment and Retraining Notification Act (WARN) is a Federal law that requires certain employers to give advanced notice of layoffs to affected employees. However, WARN does not recognize the concept of pay in lieu of notice, because it offers employers an alternative to giving the required notice. Still, an employer who issues adequate pay in lieu of notice will avoid the penalty under WARN for failing to give the required notice. It's a loophole to the advantage of employers.

Peremptory Challenge - Request by a party that a judge not allow a certain prospective juror as a member of the jury. No reason or cause need be stated.

Perjury - The criminal offense of making a false statement under oath.

Petit Jury - The ordinary jury of twelve (or fewer) persons for the trial of a civil or criminal case. So called to distinguish it from the grand jury.

Petitioner - The person filing an action in a court of original jurisdiction. Also, the person who appeals the judgment of a lower court.

Plaintiff - The person or party who initiates a lawsuit.  The moving party in a civil law suit who is bringing the complaint against a defendant.

Pleadings - The written statements of fact and law filed by the parties to a lawsuit.

Polling the Jury - The act, after a jury verdict has been announced, of asking jurors individually whether they agree with the verdict.

Post-Trial - Refers to items happening after the trial, i.e., post-trial motions or post-trial discovery.

Precedent - A benchmark, court-case or government-agency decision that provides the legal basis for deciding similar matters in the future.

Precedent - An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case arising later. A lower court is expected to follow the precedents set in the higher courts.

Preemption - The right of one law over another in circumstances where the rights or remedies of the one law conflict with the other. Generally, federal laws preempt state laws.

Preponderance - A greater weight of evidence, or evidence which is more believable and convincing in comparison to that which has been presented by the other party in a suit or grievance.

Presumption - An advantage of proof legally accorded to one side in a suit or trial that in the absence of any evidence or without convincing evidence to the contrary that party's argument or version of the facts shall be accepted as true, and the burden of proof rests with the opposite side.

Presumption of Law - A rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence.

Pretext  - A legal excuse to do something which otherwise would be illegal. In discrimination cases, for instance, it may be shown that the apparently innocent motive behind an action may conceal a discriminatory intention.

Pretrial Conference - Conference among the opposing attorneys and the judge called at the discretion of the court to narrow the issues to be tried and to make a final effort to settle the case without a trial.

Prima Facie Case - A case that is sufficient and has the minimum amount of evidence necessary to allow it to continue in the judicial process.

Prima facie case - A Latin expression meaning "at first appearance," it is the minimum threshold amount of evidence or proof sufficient for the accuser or plaintiff to win the case if there were no defenses or additional evidence presented by the accused/respondent.

Private Sector - A part of society, industry or the economy that is not under direct governmental control. For example, private-sector employers are businesses that are privately owned by individuals, partners or stock holders, while private-sector employees work for such businesses.

Privilege - A benefit or advantage to certain persons beyond the advantages of other persons, i.e., an exemption, immunity, power, etc.

Pro bono - A Latin phrase meaning "for the good," short form of "for the public good. An arrangement whereby a lawyer will accept a client for representation without charging the client any fees or retainer at all.

Pro se - For himself; in his own behalf. One who does not retain a lawyer and appears for himself in court.

Proceeding - Legal action, such as a court trial or hearing by a government agency.

Professional - As defined by the changes to the FLSA in August 2004, a professional occupation is one who is not exempted by military, technical or low-level training. The new rules dictate that people with equivalent knowledge and perform the same work are now exempted if they "obtain such knowledge through a combination of work experience and intellectual instruction."

Protected Class - Discrimination laws only regard unequal or unfair treatment as unlawful discrimination when the victim is a member of a defined group known as a protected class. The first civil rights laws protected only race and color. As the principle of discrimination evolved over the years more laws were passed and more groups were added. Federal protected classes now include race, color, national origin, religion, sex (or gender), age (over 40), and disability. State law (HEPA) further protects ancestry, marital status, sexual orientation, as well as arrest and court record (in most cases).

Public Policy - Principles, values and standards that courts and legislatures consider to be in the best interest of an individual, and the general public as well. May be expressed or implied and varies among jurisdictions. Several states recognize violation of public policy as an exception to the Doctrine of Employment at Will. Alleged violations of public policy typically must go through the courts for resolution.

Public Sector - A part of society, industry or the economy that is under direct Federal, state or local governmental control. For example, public-sector employers are government agencies and other organizations that represent the general public under governmental control, while public-sector employees work for such organizations.

Punitive damages - A Monetary award made by the court that goes beyond simple reimbursement for losses suffered (actual or compensatory damages) and, in the manner of a fine, assesses the defendant an amount of cash designed to punish the defendant for his evil behavior or to make an example of him/her.

Q

Quash - To vacate or void a summons, subpoena, etc.

Quasi-criminal action - A classification of actions such as violation of a city ordinance that is not also violation of a criminal statute, which are wrongs against the public punishable through fines but are not usually indictable offenses.

Qui Tam - Short for qui tam action, it means that U.S. citizens may take legal action on behalf of their government, such as filing lawsuits. For example, a whistleblower who works for a company that provides services to the Federal Government under contract, may sue the company in court under the False Claims Act for defrauding the Federal Government. Better yet, the whistleblower will receive a fair share of the monetary damages awarded to the Federal Government, while being protected from employer retaliation. Some states have passed False Claims Act equivalents, to deter and punish for fraud against state governments.

Quid pro quo - A Latin phrase meaning literally, "What for what." The phrase describes an implied or expressed expectation that one party will get something for something else given up. "Quid pro quo sexual harassment, for example, is the most overt form of harassment in which the harasser makes it clear that failure to submit to the sexual demands will result in loss of employment or some other right, opportunity or benefit.

R

Reasonable Doubt - An accused person is entitled to acquittal if, in the minds of the jury, his or her guilt has not been proved beyond a "reasonable doubt;" that state of minds of jurors in which they cannot say they feel an abiding conviction as to the truth of the charge.

Rebut - Evidence disproving other evidence previously given or reestablishing the credibility of challenged evidence.

Recognizance - An obligation entered into before a court whereby the recognizor acknowledges that he will do a specific act required by law.

Record - All the documents and evidence plus transcripts of oral proceedings in a case.

Recuse - The process by which a judge is disqualified from hearing a case, on his or her own motion or upon the objection of either party.

Re-direct Examination - opportunity to present rebuttal evidence after one's evidence has been subjected to cross-examination.

Regular Rate of Pay - The normal amount of money a worker receives per hour.  FLSA overtime is calculated at time and one-half of an employee's "regular rate" of pay.  Subject to some special rules, the regular rate is the total non-overtime compensation received by an employee divided by the number of non-overtime hours these wages are intended to compensate.  Most wage "augments" must be included in the regular rate, such as productivity bonuses, longevity pay, or shift differentials.

Regulation - A rule or order that has legal force, issued by an administrative agency or government. Regulations are issued as the means to enforce specific laws. Compare to Code and Order.

Rehearing - Another hearing of a civil or criminal case by the same court in which the case was originally heard.

Remand - To send a dispute back to the court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court's ruling. 

Respondent - The person against whom an appeal is taken.

Restitution - Act of restoring anything to its rightful owner; the act of restoring someone to an economic position he enjoyed before he suffered a loss.

Retainer - Act of the client in employing the attorney or counsel, and also denotes the fee which the client pays when he or she retains the attorney to act for them.

Retaliation and Discrimination - The FLSA prohibits retaliation or discrimination in the terms and conditions of employment against employees for asserting rights under the FLSA. The anti-discrimination and anti-retaliation provisions have teeth, and are interpreted liberally in favor of employees.

Reverse - An action of a higher court in setting aside or revoking a lower court decision.

Reversible Error - A procedural error during a trial or hearing sufficiently harmful to justify reversing the judgment of a lower court.

Rules of Evidence - Standards governing whether evidence in a civil or criminal case is admissible.

S

Salary - An employee is paid on a salary basis if he or she has a "guaranteed minimum" amount of money he or she can count on receiving for any work period during which he or she performs "any" work. The "salary basis test" is one way the FLSA distinguishes exempt from nonexempt employees. No matter what an employee's job duties are, with only a few exceptions s/he is nonexempt unless he or she is also paid on a salary basis.

Salary Basis Test - The salary basis test dictates that regardless if a person is paid an hourly wage or a salary, if that person can count on a "guaranteed minimum" amount of money for any "work" that person is "salaried." If a person is paid a salary only with a few exceptions do they qualify for overtime exemption unless they also perform a high level of work.

Seal - To mark a document with a seal; to authenticate or make binding by affixing a seal. Court seal, corporate seal.

Self-Incrimination, Privilege Against - The constitutional right of people to refuse to give testimony against themselves that could subject them to criminal prosecution. The right is guaranteed in the Fifth Amendment to the United States Constitution . Asserting the right is often referred to as "taking the Fifth."

Sequester - To separate. Sometimes juries are separated from outside influences during their deliberations. For example, this may occur during a highly publicized trial.

Sequestration of Witnesses - Keeping all witnesses (except plaintiff and defendant) out of the courtroom except for their time on the stand, and cautioning them not to discuss their testimony with other witnesses. Also referred to as "separation of witnesses."

Settlements - The FLSA provides two and only two mechanisms for an employee and employer to enter into a "binding" settlement of FLSA claims. One is to settle a matter under the "supervision" of the U.S. Department of Labor. The other is to settle a matter in the course of litigation. A settlement made with DOL supervision, or in litigation, will be binding, and operates as a waiver of additional claims by the employee.

"7(K)" Exemption - Section 207(a) of the FLSA requires employers to pay their employees overtime compensation for all hours worked over 40 hours per week. Section 207(k) provides a potential limited exemption from the overtime provisions of the FLSA for public agency employees who are engaged in "fire protection activities" or "law enforcement activities." In essence, "alternative 7(k) work periods" change the normal seven day, forty hour work week to "work periods" of from seven to twenty eight days, with overtime owed for hours worked over a "threshold" per work period, which are larger than forty hours per week.

Sidebar - A conference between the judge and lawyers, usually in the courtroom, out of earshot of the jury and spectators.

Sovereign Immunity - The doctrine that the government, state or federal, is immune to lawsuit unless it give its consent.

Standard of Proof- Indicates the degree to which the point must be proven. In a civil case, the burden of proof rests with the plaintiff, who must establish his or her case by such standards of proof as a "preponderance of evidence" or "clear and convincing evidence."

Statute - A law enacted by a legislative branch of government, typically through a formal act. It may be a single act of a legislature or a body of acts which are collected and arranged for a session of a legislature. Overtime law enacted through the Fair Labor Standards Act is an example. Compare to Code.

Statute of Limitations - A statute which limits the right of a plaintiff to file an action unless it is done within a specified time period after the occurrence which gives rise to the right to sue. It could be a municipal, state or Federal law that imposes a time limit for suing in court, filing a charge with a government agency or taking other legal action, typically starting on the date an alleged wrongdoing first occurred. Among the intentions is to help ensure defendants' rights to speedy trials and other proceedings, while preserving the "freshness" of evidence. Time limits vary, depending under which law one takes legal action. But, they can be relatively short. For example, an employee typically has only 180 days to file a charge of employment discrimination with the EEOC under a Federal discrimination law, 300 days if the charge also falls under a state or local discrimination law.

Statutory - Relating to a statute; created or defined by a law.

Statutory Law - Laws promulgated by Congress and state legislatures. (See case law and common law.)

Stay - A court order halting a judicial proceeding.

Stipulation - An agreement between the parties involved in a suit regulating matters incidental to trial.

Stipulation - An agreement between the parties to mutually accept some facts or evidence as true and undisputed.

Straight Time - The FLSA has limited application to straight time wages, except for minimum wage laws. The only time the FLSA requires straight time pay at an employee's regular rate is when the employee has worked FLSA overtime.

Subpoena - A command to appear at a certain time and place to give testimony upon a certain matter.

Subpoena Duces Tecum - A court order commanding a witness to bring certain documents or records to court.

Substantial evidence - A considerable weight of relevant evidence that a reasonable mind would accept as adequate to support a conclusion.

Summons - Instrument used to commence a civil action or special proceeding; the means of acquiring jurisdiction over a party.

Suppress - To forbid the use of evidence at a trial because t is improper or was improperly obtained.

Supreme Court- The highest court in the land, established by U.S. Constitution.

Sustain - A court ruling upholding an objection or a motion.

T

Temporary Restraining Order (TRO) - An emergency remedy of brief duration issued by a court only in exceptional circumstances, usually when immediate or irreparable damages or loss might result before the opposition could take action.

Testimony - The evidence given by a witness under oath. It does not include evidence from documents and other physical evidence.

Training Time - Training time is generally compensable working time, with exceptions. Training time is not working time if it is specifically required by the law of a "higher jurisdiction" as a condition of employment. Training time is also not working time if it is (a) outside of the employee's regular working hours; and, (b) strictly voluntary; and, (c) not directly related to the employee's job; and (d) the employee must not perform any (other) productive work during the training.

Transcript - A written, word-for-word record of what was said. Usually refers to a record of a trial, hearing, or other proceeding which has been transcribed from a recording or from shorthand.

Trial - A judicial examination of issues between parties to an action.

Trial Brief - A written document prepared for and used by an attorney at trial. It contains the issues to be tried, synopsis of evidence to be presented and case and statutory authority to substantiate the attorney's position at trial.

U

U.S. Citizenship and Immigration Service - A federal agency which regulates immigration and naturalization of aliens.

United States Court of Appeals - Courts which hear appeals from federal district courts, bankruptcy courts, and tax courts.

United States Court of Claims - Court which hears actions against the U.S. Government.

United States District Courts - Courts which try both criminal and civil actions and admiralty cases.

United States Magistrate Judge - Courts given authority by 28 U.S.C. s 636. This court hears all preliminary criminal matters, but does not conduct felony trials, and any pretrial civil matters referred by the district court. If all parties consent, criminal misdemeanor and civil trials can be heard by this court.

United States Reports - Publication of court decisions of the United States Supreme Court.

United States Supreme Court- The highest court in the land, established by U.S. Constitution.

V

Vacate - To set aside.

Venire - A writ summoning persons to court to act as jurors.

Venue - Authority of a court to hear a matter based on geographical location.

Verbal - Communication using words. Its opposite, "non-verbal," refers to gestures and grunts. Verbal communication may be oral or written.

Verdict - A conclusion, as to fact or law, that forms the basis for the court's judgment.

Visa - An official endorsement on a document or passport denoting that the bearer may proceed.

Voir Dire - The preliminary examination made in court of a witness or juror to determine his competency or interest in a matter. Literally, to speak the truth.

W

Waiver - FLSA rights may not be waived, by collective bargaining agreements, employment contracts, or otherwise.

Waiver - Intentionally given-up right.

Waiver of Immunity - A means authorized by statute by which a witness, before testifying or producing evidence, may relinquish the right to refuse to testify against himself or herself, thereby making it possible for his or her testimony to be used against him or her in future proceedings. 

Whistleblower -  An employee or former employee who reports misconduct to government agencies or entities that have the authority to take corrective action.

With Prejudice - A declaration which dismisses all rights. A judgment barring the right to bring or maintain an action on the same claim or cause.

Without Prejudice - A declaration that no rights or privileges of the party concerned are waived or lost. In a dismissal these words maintain the right to bring a subsequent suit on the same claim.

Witness - One who personally sees or perceives a thing; one who testifies as to what he has seen, heard, or otherwise observed.

Work - Most "job-related" activities are considered work under the FLSA, and must be compensated accordingly. Work includes activities which "benefit the employer" and which the employer "knows or has reason to believe" the employee is performing.

Work Weeks - The FLSA requires that wages due be calculated on a work week by work week basis. A work week is seven consecutive days. Work schedules must be translated into work weeks to determine FLSA wages due. (Some employees may have work periods different from seven days.)

Writ - A judicial order directing a person to do something.

Writ of Certiorari - An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.

Wrongful Termination - A civil action or lawsuit brought by a discharged employee against the employer, alleging that the termination violated or breached a statutory right, express public policy, or an employment contract.

  Print This Page