BLW UNIT 2 EXAM
In some situations, employers have attempted to avoid liability for employment discrimination on the basis of
"after-acquired evidence" of an employee's misconduct.
Section 1 (1) of the Restatement (Third) Of Agency
"the fiduciary relation [that] results from the manifestation of consent by one person to another that the other shall act in his [or her] behalf and subject to his [or her] control, and consent by the other so to act."•Agent will act on behalf and instead o fthe principal in negotiating and transacting business with third parties.
Failure to comply can result in civil penalties of up to
$100 per person per violation (with a cap of $25,000 per year).
Individual countries and regions have different ethical expectations and priorities.
- Some of these differences are based on religious values, whereas others are cultural in nature. • Such differences can make it even more difficult to determine what is ethical in a particular situation.
limitations on class actions
-The United States Supreme Court issued an important decision that limited the rights of employees to bring discrimination claims against their employer as a group, or class. -The Court held that to bring a class action, employees must prove a company-wide policy of discrimination that had a common effect on all the plaintiffs covered by the action.
safe working conditions
-The common law requires the principal to provide safe working premises, equipment, and conditions for all agents and employees. •The principal has a duty to inspect working areas and to warn agents and employees about any unsafe conditions.
Step 1: Inquiry
-The decision makers must identify the ethical problem and all the parties involved—the stakeholders. It is important that the decision makers not frame the issue in a way that gives them the answer they might prefer.
The Use of Social Media to Discuss Work-Related Issues
-Until recently, companies were free to discipline or even fire employees for their behavior on social media sites. -The National Labor Relations Board (NLRB) ruled that an employer cannot broadly prohibit its employees from criticizing the company or co-workers, supervisors, or managers via social media.
The ADA defines a disability as including any of the following:
1. A physical or mental impairment that substantially limits one or more of the major life activities of the affected individual 2. A record of having such an impairment 3. Being regarded as having such an impairment
Exceptions to Equal Dignity Rule
1. An executive officer of a corporation normally can conduct ordinary business transactions without obtaining written authority from the corporation. 2. When the agent acts in the presence of the principal, the rule does not apply. 3. When the agent's act of signing is merely a formality, then the agent does not need written authority to sign
To prevail on a claim under the ADA, a plaintiff must show that they:
1. Have a disability 2. Is otherwise qualified for the employment in question 3. Was excluded from the employment solely because of the disability
The requirements for ratification can be summarized as follows:
1. The agent must have acted on behalf of an identified principal who subsequently ratifies the action. 2. The principal must know of all the material facts involved in the transaction. • If a principal ratifies a contract without knowing all of the facts, the principal can rescind (cancel) the contract. 3. The principal must affirm the agent's act in its entirety. 4. The principal must have the legal capacity to authorize the transaction at the time the agent engages in the act and at the time the principal ratifies. • The third party must also have the legal capacity to engage in the transaction. 5. The principal's affirmation (ratification) must occur before the third party withdraws from the transaction. 6. The principal must observe the same formalities when ratifying the act as would have been required to authorize it initially.
Conversely, the undisclosed principal can require the third party to fulfill the contract, unless one of the following is true:
1. The undisclosed principal was expressly excluded as a party in the written contract. 2. The contract is a negotiable instrument signed by the agent with no indication of signing in a representative capacity. 3. The performance of the agent is personal to the contract, thus allowing the third party to refuse the principal's performance.
When this occurs, a decision maker should:
1. Try to identify what the ethical dilemma is 2. Try to identify why he or she is feeling uneasy 3. Take the time to think through the decision completely 4. Consider various options
Factors is determining whether a particular act occurred within the course and scope of employment:
1. Whether the employee's act was authorized by the employer 2. The time, place, and purpose of the act 3. Whether the act was one commonly performed by employees on behalf of their employers 4. The extent to which the employer's interest was advanced by the act 5. The extent to which the private interests of the employee were involved 6. Whether the employer furnished the means or instrumentality (such as a truck or a machine) by which an injury was afflicted 7. Whether the employer had reason to know that the employee would perform the act in question and whether the employee had done it before 8. Whether the act involved the commission of a serious crime
Principals are classified as:
1. disclosed principal 2. partially discoled 3. undisclosed
sexual harassment can take 2 forms
1. quid pro quo 2. hostile environment
Under the FLSA, any employee who works more than forty hours per week must be paid no less than
1.5 times her or his regular pay for all hours worked over forty. The FLSA overtime provisions apply only after an employee has worked more than forty hours per week. Therefore, employees who work ten hours a day, four days per week, are not entitled to overtime pay.
An agency relationship can arise in four ways:
1.By agreement of the parties 2.By ratification 3.By estoppel 4.By operation of law
The principal has certain duties to the agent relating to:
1.Compensation 2.Reimbursement and indemnification 3.Cooperation 4.Safe working conditions
Remedies under FMLA
1.Damages to compensate the employee for lost wages and benefits, denied compensation, and actual monetary losses (such as the cost of providing care for a family member)•Compensatory damages are available up to an amount equivalent to the employee's wages for twelve weeks. 2.Job reinstatement 3.Promotion, if a promotion has been denied •A successful plaintiff is also entitled to court costs and attorneys' fees. •If the plaintiff shows that the employer acted in bad faith, the plaintiff can receive two times the amount of damages awarded by a judge or jury. •Supervisors can also be held personally liable, as employers, for violations of the act.
Criteria Used by the Courts- Employee or an independent contractor, courts often consider the following questions:
1.How much control does the employer exercise over the details of the work?•If the employer exercises considerable control over the details of the work and the day-to-day activities of the worker, this indicates employee status. 2.Is the worker engaged in an occupation or business distinct from that of the employer? •If so, this points to independent-contractor, not employee, status. 3.Is the work usually done under the employer's direction or by a specialist without supervision?•If the work is usually done under the employer's direction, this indicates employee status. 4.Does the employer supply the tools at the place of work?•If so, this indicates employee status. 5.For how long is the person employed?•If the person is employed for a long period of time, this indicates employee status. 6.What is the method of payment—by time period or at the completion of the job?•Payment by time period, such as once every two weeks or once a month, indicates employee status. 7.What degree of skill is required of the worker?•If a great deal of skill is required, this may indicate that the person is an independent contractor hired for a specialized job and not an employee.
The NLRA defined a number of employer practices as unfair to labor:
1.Interference with the efforts of employees to form, join, or assist labor organizations or to engage in concerted activities for their mutual aid or protection 2.An employer's domination of a labor organization or contribution of financial or other support to it 3.Discrimination in the hiring of or the awarding of tenure to employees for reason of union affiliation 4.Discrimination against employees for filing charges under the act or giving testimony under the act 5.Refusal to bargain collectively with the duly designed representative of the employees
Generally, the agent owes the principal five duties:
1.Performance 2.Notification 3.Loyalty 4.Obedience 5.Accounting
The most difficult aspect of ethics that businesses face is in decision making. • Businesspersons must learn to:
1.Recognize ethical issues 2.Get the pertinent facts 3.Evaluate the alternatives 4.Make a decision 5.Test and reflect on the outcome of their decision
In the 1930s, Congress enacted several laws to regulate the wages and working hours of employees, including the following:
1.The Davis-Bacon Act requires contractors and subcontractors working on federal government construction projects to pay "prevailing wages" to their employees. 2.The Walsh-Healey Act requires that a minimum wage, as well as overtime pay at 1.5 times regular pay rates, be paid to employees of manufacturers or suppliers entering into contracts with agencies of the federal government. 3.The Fair Labor Standards Act (FLSA) extended wage-hour requirements to cover all employers engaged in interstate commerce or in producing goods for interstate commerce.
Four major federal statutes regulating union-employer relations include:
1.The Norris-LaGuardia Act 2.The National Labor Relations Act (NLRA) 3.The Labor-Management Relations Act (LMRA) 4.The Labor-Management Reporting and Disclosure Act (LMRDA)
Requirements for Receiving Workers' Compensation
1.The existence of an employment relationship 2.An accidental injury that occurred on the job or in the course of employment, regardless of fault. •An injury that occurs while an employee is commuting to or from work is usually not covered.
the plaintiff must show all of the following
1.The plaintiff is a member of a protected class. 2.The plaintiff applied and was qualified for the job in question. 3.The plaintiff was rejected by the employer. 4.The employer continued to seek applicants for the position or filled the position with a person not in a protected class.
COBRA prohibits an employer from eliminating a worker's medical, vision, or dental insurance when:
1.The worker's employment is terminated. •Termination of employment may be voluntary or involuntary. •Only workers fired for gross misconduct are excluded from protection. 2.A reduction in the worker's hours would affect coverage.
An eligible employee may take up to twelve weeks of leave within a twelve-month period for any of the following reasons:
1.To care for a newborn baby within one year of birth 2.To care for an adopted or foster child within one year of the time the child is placed with the employee 3.To care for the employee's spouse, child, or parent who has a serious health condition 4.If the employee suffers from a serious health condition and is unable to perform the essential functions of her or his job 5.For any qualifying exigency (nonmedical emergency) arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty
An employer that does not comply with COBRA risks substantial penalties, including a tax of up to
10 percent of the annual cost of the group plan or $500,000, whichever is less.
An employer who fails to provide health benefits as required under the statute can be fined up to (ACA)
2,000 for each employee after the first thirty people. •This is known as the 50/30 rule—employers with fifty employees must provide insurance, and those failing to do so will be fined for each employee after the first thirty. An employer who offers a plan that costs an employee more than 9.5 percent of the employee's income may be assessed a penalty.
the FMLA requires employers that have
50 or more employees to provide unpaid leave for specified reasons, the FMLA covers private and public (government) employees who have worked for their employers for at least a year
A worker has ____ days from the date on which the group coverage would stop to decide whether to continue with the employer's group insurance plan.
60 If the worker chooses to continue coverage, the employer is obligated to keep the policy active for up to eighteen months (twenty-nine months if the worker is disabled). •The coverage must be the same as that provided to the worker (and family members) prior to the termination or reduction of work.
A maximum of ______________ H-1B visas are set aside each year for new immigrants.
65,000
Notify within_______ hours if an employee dies and submit a report within________ hours for any inpatient hospitalization, amputation, or loss of an eye.
8, 24 failing to do so results in a fine, following the incident a complete inspection of the premises is mandatory
Typically, the first step in organizing a union at a particular firm is to have the workers sign Authorization card -
A card signed by an employee that gives a union permission to act on his or her behalf in negotiations with management. If a majority of the workers sign authorization cards, the union organizers (unionizers) present the cards to the employer and ask for formal recognition of the union. •The employer is not required to recognize the union at this point, but it may do so voluntarily on a showing of majority support.
CHAPTER 34 employment at will
A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise. •Some federal and state statutes governing employment relationships prevent the doctrine from being applied in a number of circumstances. •such as a law prohibiting employment discrimination.
I-551 Permanent Resident Card
A company seeking to hire a noncitizen worker may do so if the worker is self-authorized.
Corporate Watch Groups
A company's actions in other nations can be discovered and publicized by "corporate watch" groups.
Apparent Authority and Estoppel
A court can apply the doctrine of agency by estoppel when a principal has given a third party reason to believe that an agent has authority to act. • If the third party honestly relies on the principal's representations to his or her detriment, the principal may be estopped (prevented) from denying that the agent had authority.
business necessity
A defense to an allegation of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance.
Respondeat superior -
A doctrine under which a principal-employer is liable for any harm caused to a third party by an agent-employee in the course or scope of employment.
Preserved the legality Union shop -
A firm that requires all workers, once employed, to become union members within a specified period of time as a condition of their continued employment.
Outlawed the Closed shop -
A firm that requires union membership on the part of its workers as a condition of employment.
disparate-treatment discrimination
A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes. • Because intent may sometimes be difficult to prove, courts have established procedures for resolving disparate-treatment cases.
cooperation
A principal has a duty to cooperate with the agent and to assist the agent in performing his or her duties .•The principal must do nothing to prevent that performance. •Example:If a principal violates an exclusive agency, he or she is exposed to liability for the agent's lost profits.
Disclosed principal -
A principal whose identity is known to a third party at the time the agent makes a contract with the third party.
Partially disclosed principal -
A principal whose identity is unknown by a third party, but the third party knows that the agent is or may be acting for a principal at the time the agent and the third party form a contract.
Undisclosed principal -
A principal whose identity is unknown by a third party, and that party has no knowledge that the agent is acting for a principal at the time the agent and the third party form a contract.
notary public
A public official authorized to attest to the authenticity of signatures.
ethical reasoning
A reasoning process in which an individual links his or her moral convictions or ethical standards to the particular situation at hand. • Ethical reasoning applies to businesses as well.• As businesses make decisions, they must consider the ethical implications of each alternative.
agency
A relationship between two parties in which one party (the agent) agrees to represent or act for the other (the principal). The principal has the right to control the agent's conduct in matters entrusted to the agent. •By using agents, a principal can conduct multiple business operations at the same time in different locations. •The only way certain business entities can function is through their agents. •Example:A corporate officer—an agent who serves in a representative capacity for a corporation—has the authority to bind the corporation to a contract; thus, the only way the corporation can enter into contracts is through its officers.
association with disabled persons
A separate provision in the ADA prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people who have disabilities.
tangible employment action
A significant change in employment status or benefits, such as occurs when an employee is fired, refused a promotion, or reassigned to a lesser position. • A constructive discharge also qualifies as a tangible employment action.
Allowed individual states to pass Right-to-work law -
A state law providing that employees may not be required to join a union as a condition of retaining employment.
No-strike clause:
A strike may be illegal if it contravenes a no-strike clause that was in the previous collective bargaining agreement between the employer and the union.
Seniority system
A system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced.
Constructive Discharge
A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave. • When constructive discharge is claimed, the employee can pursue damages for loss of income, including back pay.
Secondary boycott -
A union's refusal to work for, purchase from, or handle the products of a secondary employer, with whom the union has no dispute, for the purpose of forcing that employer to stop doing business with the primary employer, with whom the union has a labor dispute.
Behavioral Control:
A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised.
disclosure of confidential medical information
ADA provisions require employers to keep their employees' medical information confidential. An employee who discovers that an employer has disclosed confidential medical information has a right to sue the employer— even if the employee was not technically disabled. • The prohibition against disclosure applies to other employees acting on behalf of the employer.
Step 4: Review
After the decision is implemented, the decision makers should review the effectiveness of the solution.
the equal dignity rule
Agent's authority must be in writing if the contract to be made on behalf of the principal must be in writing. • Statute of Frauds (MYLEGS) • Failure to comply with the equal dignity rule can make a contract voidable at the option of the principal.
Health conditions that have been considered disabilities under federal law include:
Alcoholism Acquired immune deficiency syndrome (AIDS) Blindness Cancer Cerebral palsy Diabetes Heart disease Human immunodeficiency virus(HIV) Morbid obesity Muscular dystrophy Paraplegia
wrongful termination
Although both parties have the power to terminate the agency, they may not always possess the right to do so. • Wrongful termination can subject the canceling party to a lawsuit for breach of contract.
Lockouts are the employer's counterpart to the workers' right to strike: lockout is
An action in which an employer shuts down to prevent employees from working, typically because it cannot reach a collective bargaining agreement with the employees' union.
strike
An action undertaken by unionized workers when collective bargaining fails. •The workers leave their jobs, refuse to work, and (typically) picket the employer's workplace .•Striking workers lose their rights to be paid. •Management loses production and may lose customers when orders cannot be filled.
exclusive agency
An agency in which a principal grants an agent an exclusive territory and does not allow another agent to compete in that territory.
Agency coupled with an interest
An agency, created for the benefit of the agent, in which the agent has some legal right (interest) in the property that is the subject of the agency. • This type of agency is not an agency in the usual sense because it is created for the agent's benefit instead of for the principal's benefit. • Because of the agent's interest in the subject matter, the agency is irrevocable.
demand for accounting
An agent can withhold further performance and demand that the principal give an accounting.
Utilitarianism
An approach to ethical reasoning in which ethically correct behavior is related to an evaluation of the consequences of a given action on those who will be affected by it. • In utilitarianism, a "good" decision is one that results in the greatest good for the greatest number of people affected by the decision.
whistleblowing
An employee's disclosure to government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities.
Employers are also subject to criminal prosecution for certain types of HIPAA violations:
An employer can face up to $250,000 in criminal fines and imprisonment for up to ten years if convicted.
reasonable accommodation and undue hardship
An employer must "reasonably accommodate" the religious practices and sincerely held religious beliefs of its employees, unless to do so would cause undue hardship to the employer's business.
post pregnancy discrimination
An employer must continue to reasonably accommodate an employee's medical conditions related to pregnancy and childbirth, even after the pregnancy has ended.
penalties (IRCA)
An employer who violates the law by hiring an unauthorized worker is subject to substantial penalties. •The employer can be fined up to: •$2,000 for each unauthorized employee for a first offense •$5,000 per employee for a second offense •$11,000 for subsequent offenses •Employers who have engaged in a "pattern or practice of violations" are subject to criminal penalties, which include additional fines and imprisonment for up to ten years. •A company can also be barred from future government contracts.
wrongful discharge
An employer's termination of an employee's employment in violation of the law or an employment contract. •Can result in liability to the former employee
Duty-based ethics -
An ethical philosophy rooted in the idea that every person has certain duties to others, including both humans and the planet.
Outcome-based ethics -
An ethical philosophy that focuses on the impacts of a decision on society or on key stakeholders. Focuses on the consequences of an action rather than on the nature of the action itself or any set of preestablished moral values or religious beliefs• Looks at the impacts of a decision in an attempt to maximize benefits and minimize harms
Bona fide occupational qualification (BFOQ)
An identifiable characteristic reasonably necessary to the normal operation of a particular business. • Race, color, and national origin can never be BFOQs. • Courts have restricted the BFOQ defense to situations in which the employee's gender or religion is essential to the job.
Outlawed Hot-cargo agreement -
An illegal agreement in which employers voluntarily agree with unions not to handle, use, or deal in the non-union-produced good of other employers.
performance
An implied condition in every agency contract is the agent's agreement to use reasonable diligence and skill in performing the work. •When an agent fails to perform his or her duties, liability for breach of contract may result.
Benefits can include:•
An increase in goodwill from the local community • An increase in sales• Higher employee retention • At times, the benefit may not be immediate.
Employee Status and "Works for Hire"
Any copyrighted work created by an employee within the scope of her or his employment at the request of the employer is a "work for hire," and the employer owns the copyright to the work.
The Corporate Aspects of CSR
Arguably, any socially responsible activity will benefit a corporation.
Express Authority
Authority expressly given by one party to another. in agency law, an agent has express authority to act for a principal if both parties agree, orally or in writing, that an agency relationship exists in which the agent has the power (authority) to act in the place of, and on behalf of, the principal.
Implied authority -
Authority that is created not by an explicit oral or written agreement but by implication or inference.
Apparent authority -
Authority that is only apparent, not real. • An agent's apparent authority arises when the principal causes a third party to believe that the agent has authority, even though she or he does not.
power of attorney
Authorization to act as another's agent. • The power of attorney is a written document and is usually notarized.
constructive trust
Because anything that an agent obtains by virtue of the employment or agency relationship belongs to the principal, the agent holds such property in a constructive trust (an equitable trust imposed for reasons of fairness) for the principal.
The Social Aspects of CSR
Because business controls so much of the wealth and power in this country, business has a responsibility to use that wealth and power in socially beneficial ways.
employees are prohibited from: (gender)
Classifying or advertising jobs as male or female unless they can prove that the gender of the applicant is essential to the job Having separate male and female seniority lists Refusing to promote employees based on their gender
disparate-impact discrimination
Discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory impact. • Prima Facie must first show that the employer's practices, procedures, or tests are effectively discriminatory. • Burden shifts to the employer to show that the practices, procedures, or tests were justified.
Financial Control:
Does the business have a right to direct or control the financial and business aspects of the worker's job?
The Use of Social Media to Make Hiring Decisions
Employers are likely to use social media to evaluate job candidates. • Many people feel that judging a job candidate on what she or he does outside the work environment is unethical.
job applications and physical exams
Employers must modify their job-application and selection process so that those with disabilities can compete for jobs with those who do not have disabilities. • Example: A job announcement might be modified to allow applicants to respond by e-mail as well as by telephone, so that it does not discriminate against potential applicants with hearing impairments. Employers are restricted in the kinds of questions they may ask on job-application forms and during preemployment interviews. Employers cannot require persons with disabilities to submit to preemployment physicals unless such exams are required of all other applicants. • An employer can disqualify the applicant only if the medical problems discovered during a preemployment physical would make it impossible for the applicant to perform the job.
The Labor-Management Reporting and Disclosure Act (LMRDA):
Established an employee bill of rights and reporting requirements for union activities
business ethics
Ethics in a business context; a consensus of what constitutes right or wrong behavior in the world of business and the application of moral principles to situations that arise in a business setting.
harassment by supervisors
For an employer to be held liable for a supervisor's sexual harassment, the supervisor normally must have taken a tangible employment action against the employee.
World Religions, Cultural Norms, and Ethics
Global businesses need to be conscious of the impact of different religious principles and cultural norms on ethics.
stakeholders
Groups, other than the company's shareholders, that are affected by corporate decisions. • Stakeholders include: • Employees • Customers• Suppliers• The community in which the corporation operates The rationale for this view is that, in some circumstances, one or more of these groups may have a greater stake in company decisions that the shareholders do.
H-2 Visas
H-2 visas provide for workers performing agricultural labor of a seasonal nature.
Companies may be judged on:
How much they donate to social causes How they conduct their operations with respect to employment discrimination, human rights, environmental concerns, and similar issues
Agency by Ratification•
If a person who is in fact not an agent (or who is an agent acting outside the scope of her or his authority) makes a contract on behalf of another (a principal), and the principal approves or affirms that contract by word or by action, an agency relationship is created by ratification .•Ratification involves a question of intent. •Intent can be expressed by either words or conduct.
emergency situations
If an agent cannot contact the principal and failure to act would cause the principal substantial loss, the agent may take steps beyond the scope of her or his authority. •Example: A railroad engineer may contract on behalf of his or her employer for medical care for an injured motorist hit by the train.
union elections
If the employer does not voluntarily recognize the union—or if less than a majority of the workers sign authorization cards—the union organizer can petition for an election. •The organizers present the authorization cards to the NLRB with a petition to hold an election on unionization. •For an election to be held, they must demonstrate that at least 30 percent of the workers to be represented support a union or an election. •The proposed union must represent an appropriate bargaining unit.•mutuality of interest among all the workers to be represented by the union.
Implied Warranty
If the principal is disclosed or partially disclosed, and the agent contracts with a third party without authorization, the agent is liable to the third party. • The agent's liability is based on his or her breach of the implied warranty of authority, not on the breach of the contract itself. • An agent impliedly warrants that he or she has the authority to enter into a contract on behalf of the principal.
Massed picketing:
If the strikers form a barrier and deny management or any other nonunion workers access to the plant, the strike is illegal.
Payments are permissible:
If they are lawful within the foreign country For small amounts to minor officials to facilitate or speed up the performance of administrative services To private foreign companies or other third parties
employee travel time
If travel is part of a person's position, as it is for a traveling salesperson, then travel time is normally considered within the scope of employment. • For such an employee, the entire business trip, including the return home, is within the scope of employment unless there is a significant departure from the employer's business.
categorical imperative
In deciding whether an action is right or wrong, or desirable or undesirable, a person should evaluate the action in terms of what would happen if everybody else in the same situation, or category, acted the same way.
triple bottom line
Investors and others should consider not only corporate profits, but also the corporation's impact on people and on the planet in assessing the firm. • The bottom line is: • People • Planet • Profits
affirmative action
Job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination.
L visas
L visas allow a company's foreign managers or executives to work inside the United States.
Bases for termination of an agency by acts of the parties include: •
Lapse of time • Achievement of purpose •Occurrence of a specific event • Mutual agreement • At the option of one party
Gray Areas in the Law
Laws cannot codify all ethical requirements. Laws may sometimes be difficult to interpret and apply due to a number of reasons, including: Broad language Application of a law to more than just the intended situation Unclear guidance on the purpose of a law Ambiguous or weak provisions
• One such framework is a modified version of
Leonard H. Bucklin's Business Process PragmatismTM procedure, called IDDR ("I Desire to Do Right").
The remedies arise out of contract and tort law and include:
Monetary damages •Termination of the agency relationship •An injunction •Required accountings
Equal Employment Opportunity Commission (EEOC)
Monitors compliance with Title VII
ethics
Moral principles and values applied to social behavior. • Ethics has to do with an action's: • Fairness• Justness• Rightness• Wrongness
Religious Ethical Principles
Nearly every religion has principles or beliefs about how one should treat others. Religious rules generally are absolute with respect to the behavior of their adherents. For businesses, religious principles can be a unifying force for employees or a rallying point to increase employee motivation. They can also present problems, however, because different owners, suppliers, employees, and customers may have different religious backgrounds.
industry ethical codes
Numerous industries have developed codes of ethics. Violation of a code may result in the discipline of an employee or sanctions against a company from the industry organization. Internal codes are not laws, so their effectiveness is determined by the commitment of the industry or company leadership enforcing them.
health, safety, and income security
Numerous state and federal statutes protect employees from the risk of accidental injury, death, or disease resulting from their employment.
O Visas
O visas provide entry for persons who have "extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim."
Step 2: Discussion
Once the ethical problem(s) have been clarified, a list of possible actions can be compiled.
uncertainty
One common denominator identified by businesspersons who have faced ethical problems is the feeling of uncertainty about what they did, what they should've done, or whether there was an ethical issue or ethical breach involved. • Such uncertainty is practically unavoidable, but it should be treated as an indicator of a potential ethical problem.
Attitude of Top Management
One of the most important ways to create and maintain an ethical workplace is for top management to demonstrate its commitment to ethical decision making. Top management's behavior sets the ethical tone of a firm.
Stakeholders and CSR
One view of CSR stresses that corporations have a duty to both shareholders and stakeholders.
Independent contractor
One who works for, and receives payment from, an employer but whose working conditions and methods are not controlled by the employer. •Example:A property owner who hires a contractor and subcontractors to complete a project does not control the details of the way they perform their work.
Businesspersons should exhibit integrity in their dealings with:
Other people in the company • Other businesses • Clients • The community
business as a corporate citizen
Over the years, many people became dissatisfied with the profit- maximization theory, and corporations came to be viewed as "citizens" that were expected to participate in bettering communities and society.
The NLRA created the National Labor Relations Board (NLRB) to:
Oversee union elections •Prevent employers from engaging in unfair and illegal union activities and unfair labor practices
To prove constructive discharge, an employee must:
Present objective proof of intolerable working conditions Show that the employer knew or had reason to know about these conditions yet failed to correct them within a reasonable time period Show causation—that the employer's unlawful discrimination caused the working conditions to be intolerable
The Age Discrimination in Employment Act (ADEA):
Prohibits employment discrimination on the basis of age against individuals forty years of age or older Prohibits mandatory retirement for non managerial workers Protects federal and private-sector employees from retaliation based on age-related complaints
Awareness
Regardless of the context in which a decision is called for, sometimes businesspersons are not even aware that the decision has ethical implications.
Duty-based ethics deals with standards for behavior that traditionally were derived from:
Religious authorities • Philosophical reasoning• These standards involve concepts of: • Right and wrong• Duties owed• Rights to be protected
tort and contract remedies
Remedies of the agent for breach of duty by the principal follow normal contract and tort remedies.
Rationalization
Sometimes, businesspersons rationalize ethically questionable decisions.
A power of attorney can be either:
Special (permitting the agent to perform specified acts only)• General (permitting the agent to transact all business for the principal) • Because a general power of attorney grants extensive authority to the agent, it should be used with great caution and usually only in exceptional circumstances.
Sit-down strikes:
Strikes in which employees simply stay in the plant without working are illegal.
National Labor Relations Act
The 1935 National Labor Relations Act (NLRA) established the rights of employees to engage in collective bargaining and to strike.
reasonable accommodation
The ADA does not require that employers accommodate the needs of job applicants or employees with disabilities who are not otherwise qualified for the work.
substance abusers
The ADA protects persons with former drug addictions—those who have completed or are now participating in a supervised drug-rehabilitation program.
COBRA
The Consolidated Omnibus Budget Reconciliation Act (COBRA) enables employees to continue, for a limited time, their health-care coverage after they are no longer eligible for group health-insurance plans. •The employee pay the premiums for the continued coverage.
Kantian Ethical Principles
The German philosopher Immanuel Kant (1724-1804) believed that human beings are: Qualitatively different from other physical objects Endowed with moral integrity and the capacity to reason and conduct their affairs rationally Based on this view, Kant said that when people are treated merely as a means to an end (such as when employees are treated as profit-making tools), they are being treated as the equivalent of objects and are being denied their basic humanity. A central postulate of Kantian ethics is the categorical imperative.
Criteria Used by the IRS
The Internal Revenue Service (IRS) has established its own criteria for determining whether a worker is an independent contractor or an employee.•The most important factor is the degree of control the business exercises over the worker.
ratification
The act of accepting and giving legal force to an obligation that previously was not enforceable. • Ratification can be either express or implied.
Corporate social responsibility (CSR)
The concept that corporations can and should act ethically and be accountable to society for their actions., not imposed on corporations by law However, it does involve a commitment to self-regulation in a way that attends to the text and intent of the law as well as to ethical norms and global standards. CSR is most successful when a company undertakes activities that are significant and related to its business operations. Some types of CSR activities that businesses are engaging in today include: • Environmental efforts • Ethical labor practices • Charitable donations • Volunteer work
Created by the Principal's Conduct
The deeds or statements of the principal, rather than the acts or declarations of a purported agent in and of themselves, create an agency by estoppel.
sexual harassment
The demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment.
Under the doctrine of respondeat superior:
The employer can be liable for intentional torts that an employee commits within the course and scope of employment. An employer who knows or should know that an employee has a propensity for committing tortious acts is liable for the employee's acts even if they would not ordinarily be considered within the scope of employment. An employer is liable for permitting an employee to engage in reckless actions that can injure others.
notice of dangerous conditions
The employer is charged with knowledge of any dangerous conditions discovered by an employee and pertinent to the employment situation.
Determining the Scope of Employment
The key to determining whether a principal may be liable for the torts of an agent under the doctrine of respondeat superior is whether the torts are committed within the scope of the agency.
minimum wage
The lowest wage, either by government regulation or by union contract, that an employer may pay an hourly worker.
the moral minimum
The minimum degree of ethical behavior expected of a business firm, which is usually defined as compliance with the law. Businesspersons must remember that an action that is legal is not necessarily ethical.
the H-1B visa program
The potential employee must be qualified in a "specialty occupation," meaning that the individual: •Has highly specialized knowledge •Has attained a bachelor's degree or its equivalent
Outsourcing
The practice by which a company hires an outside firm or individual to perform work rather than hiring employees.
reimbursement
The principal has a duty to reimburse the agent: •Whenever an agent distributes funds at the request of the principal •For any necessary expenses incurred in the course of the reasonable performance of her or his agency duties
If the principal does not ratify the contract:
The principal is not bound.
Principle of rights -
The principle that human beings have certain fundamental rights (to life, freedom, and the pursuit of happiness, for example). A key factor in determining whether a business decision is ethical under this theory is how that decision affects the rights of others, such as employees, customers, suppliers, and the community. A potential dilemma for those who support rights theory is that they may disagree on which rights are most important. • In general, rights theorists believe that whichever right is stronger in a particular circumstance takes precedence.
Collective bargaining -
The process by which labor and management negotiate the terms and conditions of employment, including working hours and workplace conditions.
The Third Party's Reliance Must Be Reasonable
The third person must prove that they reasonably believed that an agency relationship existed. •Facts and circumstances must show that an ordinary, prudent person familiar with business practice and custom would have been justified in concluding that the agent had authority
relationship
The type of relationship depends upon how the worker and business perceive their interaction with one another.
violent strikes
The use of violence (including the threat of violence) against management employees or substitute workers is illegal.
An employer and a union must negotiate in good faith and make a reasonable effort to come to an agreement but,
They are not obligated to reach an agreement. •They must, however, approach the negotiations with the idea that an agreement is possible. •Both parties may engage in hard bargaining, but the bargaining process itself must be geared to reaching a compromise—not avoiding a compromise .•If an employer (or a union) refuses to bargain in good faith without justification, it has committed an unfair labor practice.
"Ellerth/Faragher affirmative defense."
This defense has two elements: 1. The employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior. 2. The plaintiff-employee must have unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm. • An employer that can prove both elements normally will not be liable for a supervisor's harassment.
Retaliation by Employers
Title VII prohibits retaliation by employers against employees who complain about sexual harassment or other Title VII violations. • Employees can sue their employers when it occurs. -To be protected under Title VII's retaliation provisions, the plaintiff must have opposed a practice prohibited by -Title VII and suffered an adverse employment action as a result of that opposition. Title VII's retaliation protection extends to employees who speak out about discrimination against other employees during an employer's internal investigation.
same gender harassment
Title VII protection extends to individuals who are sexually harassed by members of the same gender.
Innocent Misrepresentation
Tort liability based on fraud requires proof that a material misstatement was made knowingly and with the intent to deceive. An agent's innocent misstatements in a contract or warranty transaction can also provide grounds for the third party's rescission of the contract and the award of damages. When a principal knows that an agent is not accurately advised of facts but does not correct the agent's or the third party's impressions, the principal is responsible.
Employers cannot: (religion)
Treat their employees more or less favorably based on their religious beliefs or practices Require employees to participate in any religious activity or forbid them from participating in one
illegal strikes
Violent strikes. Massed picketing. Sit-down strikes. No-strike clause. Secondary boycotts. Wildcat strikes
Agency by Estoppel
When a principal causes a third person to believe that another person is the principal's agent, and the third person acts to his or her detriment in reasonable reliance on that belief, the principal is "estopped to deny" (prevented from denying) the agency relationship.•The principal's actions have created the appearance of an agency that does not in fact exist, creating an agency by estoppel.
Apparent Implied Authority
When a principal has placed an agent in a position of apparent authority—making it possible for the agent to defraud a third party—the principal may also be liable for the agent's fraudulent acts.
obedience
When acting on behalf of the principal, an agent has a duty to follow all lawful and clearly stated instructions of the principal. •Any deviation from such instructions is a violation of this duty (except during emergency situations when the principal cannot be consulted).
avoidance
When an agent breaches the agency agreement or agency duties under a contract, the principal has a right to avoid any contract entered into with the agent.
emergency powers
When an unforeseen emergency demands action by the agent to protect or preserve the property and rights of the principal, but the agent is unable to communicate with the principal, the agent has emergency power.
notice of termination
When the parties terminate an agency, it is the principal's duty to inform any third parties who know of the existence of the agency that it has been terminated. • No particular form is required for notice of termination to be effective. • The principal can personally notify the agent, or the agent can learn of the termination through some other means.
Step 3: Decision
With all the relevant facts collected and the alternatives thoroughly analyzed and discussed, the decision makers should craft a consensus decision or plan of action. Once the decision has been made, the decision makers should articulate the reasons they arrived at the decision so they can share with stakeholders why the course of action is an ethical solution to the problem.
A useful insight into the concept of "scope of employment" can be gained from Judge Baron Parke's classic distinction between
a "detour" and a "frolic" in the case of Joel v. Morison (1834).
The burden-shifting procedure under the ADEA differs from the procedure under Title VII. Under the ADEA,
a plaintiff must show that the unlawful discrimination was not just a reason but the reason for the adverse employment action. • In other words, the employee has the burden of establishing but for causation—that is, "but for" the employee's age, the action would not have been taken.
A person must have contractual capacity to be
a principal.
Wildcat strikes:
a small number of workers, perhaps dissatisfied with a union's representation, call their own strike.
employers generally are required to notify employees when an
absence will be counted against FMLA leave •If an employer fails to provide such notice, and that failure to notify causes harm to the employee, the employer can be sanctioned.
If the principal is partially disclosed, in most states the
agent is also treated as a party to the contract. • Thus, the third party can hold the agent liable for contractual performance.
Employees who deal with third parties are often deemed to be
agents, so agency law and employment law overlap considerably.
Once the hearing is held,
an election can be scheduled right away. •If an election is held, the NLRB supervises the election and ensures secret voting and voter eligibility. •If the proposed union receives majority support in a fair election, the NLRB certifies the union as the bargaining representative for the employees.
To be protected under the NLRA, an individual must be
an employee or a job applicant .•Individuals who are hired by a union to organize a company (union organizers) are to be considered employees of the company for NLRA purposes. •Even a temporary worker hired through an employment agency might qualify for protection under the NLRA.
The Electronic Communications Privacy Act prohibits employers from intercepting
an employee's personal electronic communications unless they are made on devices and systems furnished by the employer .•In addition, private employers generally are free to use filtering software to block access to certain websites, such as sites containing sexually explicit images. •The First Amendment's protection of free speech prevents only government employers from restraining speech by blocking websites.
An agency relationship can be created for
any legal purpose. •An agency relationship created for a purpose that is illegal or contrary to public policy is unenforceable.
WARN Act (Worker Adjustment and Retraining Notification)
applies to employers with at least one hundred full-time employees. •The act requires these employers to provide sixty days' notice before implementing •A mass layoff is a layoff of at least one-third of the full-time employees at a particular job site. •Or •closing a plant that employs more than fifty full-time workers. •Companies that anticipate filing for bankruptcy normally must also provide notice under the WARN Act.
The first line of defense for an employer charged with employment discrimination is to
assert that the plaintiff has failed to meet his or her initial burden of proving that discrimination occurred. Once a plaintiff succeeds in proving that discrimination occurred, the burden shifts to the employer to justify the discriminatory practice.
An employer may defend against a claim of disparate-impact (unintentional) discrimination by
asserting that a practice that has a discriminatory effect is a business necessity.
Under the USERRA, returning service members are to be reemployed in the jobs that they would have
attained had they not been absent for military service. • If a returning service member sues an employer for violations of the USERRA and is successful, she or he could receive not only damages and reinstatement but also a promotion.
Principal's liability to third parties with whom an agent contracts depends on whether the agent had the
authority to enter into legally binding contracts on the principal's behalf.
Public policy requires that an injured person
be afforded effective relief. A business enterprise is usually better able to provide that relief than is an individual employee.• Employers normally carry liability insurance to cover any damages awarded as a result of such lawsuits. • Employers are able to spread the cost of risk over the entire business enterprise.
Plaintiff must pursue the claim through the EEOC
before filing an action in court for a violation of the ADA. The EEOC may decide to investigate and perhaps sue the employer on behalf of the employee. • The EEOC can bring a suit even if the employee previously signed an agreement with the employer to submit job-related disputes to arbitration. • If the EEOC decides not to sue, then the employee may do so.
Some lockouts are illegal: An employer may not use a lockout as a tool to
break the union and pressure employees into decertification, which occurs when union members vote to dissociate from the union. •An employer must be able to show some economic justification for the lockout.
The Foreign Corrupt Practices Act prohibits U.S.
businesses from making payments to (bribing) foreign officials to secure beneficial contracts, with certain exceptions.
An employer can put a limit, or cap, on health-care payments under its group health policy,
but the cap must apply equally to all insured employees.
When violations are found, the NLRB may issue a
cease-and-desist order compelling the employer to stop engaging in the unfair practices. •After the NLRB rules on claims of unfair labor practices, its decision may be appealed to a federal court.
A key to avoiding unethical conduct is to recognize how
certain situations may lead individuals to act unethically.
The IRS tends to closely scrutinize a firm's classification of its workers because employers can avoid
certain tax liabilities by hiring independent contractors instead of employees.
the FLSA prohibits oppressive
child labor
Actual authority (express or implied) arises from what the principal makes
clear to the agent.
Agency relationships normally are
consensual. •They come about by voluntary consent and agreement between the parties. •The agreement need not be in writing, and consideration is not required.
An agent's implied authority cannot
contradict his express authority. If a principal has limited an agent's express authority, then the fact that the agent customarily would have such authority is irrelevant.
An agency coupled with an interest should not be confused with a situation in which the agent merely
derives proceeds or profits from the sale of the subject matter. • Example: A real estate agent who merely receives a commission from the sale of real property does not have a beneficial interest in the property itself.
To succeed in a suit for gender discrimination, a plaintiff must demonstrate that gender was a
determining factor in the employer's decision to hire, fire, or promote him or her.
Whether the agent may also be held liable under the contract depends on the
disclosed, partially disclosed, or undisclosed status of the principal.
In attempting to maximize profits, corporate executives and employees have to
distinguish between short-run and long-run profit maximization. An overemphasis on short-run profit maximization is perhaps the most common reason that ethical problems occur in business.
Businesses should also ensure that the workplace respects
diversity and enforces equal opportunity employment and civil rights laws.
These laws __________ apply to independent contractors.
do not
The Fourth Amendment does not apply to
drug testing conducted by private employers. Privacy rights and drug testing of private-sector employees are governed by state law. •The permissibility of testing a private employee for drugs often hinges on whether the employer's testing was reasonable. •Random drug tests and even "zero-tolerance" policies (which deny a "second chance" to employees who test positive for drugs) have been held to be reasonable.
The study of ethics identifies two major categories:
duty and outcome based
Once the undisclosed principal's identity is revealed, the third party generally can elect to hold
either the principal or the agent liable on the contract.
The NLRA has the authority to investigate
employees' charges of unfair labor practices and to file complaints against employers in response to these charges.
Under the USERRA, military plaintiffs can sue not only the
employer but also individual employees who were acting in the official capacity for the employer. • There is no statute of limitations for bringing a lawsuit.
To establish a prima facie case of discrimination under the USERRA, the plaintiff must establish that the
employer took an adverse employment action based in part on the employee's connection with the military. • The connection to the military may be through the plaintiff's:• Membership, service, or application for service• Providing testimony or statements concerning the military service of another • If another similarly situated person who did not serve in the military or engage in a protected activity was treated more favorably than the plaintiff, the employer has violated the USERRA.
Employment laws (state and federal) apply only to the
employer-employee relationship
some states have enacted laws to prevent
employers from including tips in the minimum wage - in these states, tipped workers receive the regular minimum wage
Whenever a work-related fatality or serious injury requiring hospitalization occurs,
employers must report directly to OSHA.
Per Section 15 of the Uniform Electronic Transactions Act (UETA), e-agents can
enter into binding agreements on behalf of their principals in those states that have adopted the act.
Workers with disabilities must be given
equal access to any health insurance provided to other employees and cannot be excluded from coverage.
Family relationships
example: If a spouse purchases certain basic necessaries and charges them to the other spouse's account, the courts often rule that a spouse is liable for payment for the necessaries because of either a social policy or a legal duty to supply necessaries to family members.
If the NLRB certifies the union, the union becomes the
exclusive bargaining representative of the workers.
The degree of skill or care required of an agent is usually that
expected of a reasonable person under similar circumstances. •If an agent has represented herself or himself as possessing special skills, however, the agent is expected to exercise the degree of skill claimed.
The courts may find an agency relationship in the absence of a formal agreement.•This may occur in:
family relationships and emergency situations
The principal-agent relationship is
fiduciary—based on trust. •Each party owes the other the duty to act with the utmost good faith.
The Affordable Care Act requires most employers with
fifty or more full-time employees to offer health-insurance benefits. •Under the act, any business offering health benefits to its employees (even if not legally required to do so) may be eligible for tax credits of up to 5 percent to offset the costs.•
An employer that violates the WARN Act can be
fined up to $500 for each day of the violation employees can recover back pay for each day of the violation (up to 60 days) plus reasonable attorneys' fees
indemnification
for an equal amount of damages. •The same holds true if the agent violates the principal's instructions.
The USERRA specifies that veterans can be terminated from their employment only
for cause The employer is obligated to give employees a list of all the behaviors that would trigger a for-cause termination.
Under EEOC guidelines, a selection rate for a protected class that is less than
four-fifths, or 80 percent, of the rate for the group with the highest rate of hiring generally is regarded as evidence of disparate impact.
Undisclosed principal is bound to perform just as if the principal had been
fully disclosed at the time the contract was made.
Ethical problems involving outsourcing most often arise when
global companies outsource work to other countries in an attempt to save on labor costs.
Any person can be an agent, regardless of whether he or she
has the capacity to contract (including minors).
Children aged fourteen and fifteen are allowed to work, but not in
hazardous occupations, and they are also restricted on how many hours per day and per week they can work.
I-9 Verification
he process of verifying the employment eligibility and identity of a new immigrant worker. •completed within three days after the worker commences employment. •Check the form's accuracy •Review and verify documents establishing the prospective worker's identity and eligibility for employment in the United States
employer must continue the worker's
health care coverage on the sample terms as if the employee had continued to work employees must be restored to their original position or to a comparable position (with nearly = pay and benefits) -An important exception allows the employer to avoid reinstating a key employeedefinedas an employee whose pay falls within the top 10 percent of the firm's workforce.
The NLRB now requires that a company hold a pre-election
hearing within eight days after it receives a petition for an organizing election. •On the day before the hearing, the company must also submit a "statement of position" laying out every argument it intends to make against the union. •Any argument that the company does not include in its position paper can be excluded from evidence at the hearing.
If employees have been informed that their communications are being monitored,
hey cannot reasonably expect those interactions to be private.
An agent is liable for
his or her own torts.
employee's online activities can create a
hostile working environment in many ways Racial jokes, ethnic slurs, or other comments contained in e-mail, texts, blogs, or social media can lead to claims of hostile- environment harassment or other forms of discrimination. • Employers may be able to avoid liability for online harassment by taking prompt remedial action.
If an employer's standards or policies for selecting or promoting employees have a discriminatory effect on employees or job applicants in these protected classes, then a presumption of
illegal discrimination arises. • To avoid liability, the employer must show that its standards or policies have a substantial, demonstrable relationship to realistic qualifications for the job in question.
state legislation may include rules that
impact federal wage and overtime laws
Sometimes, major legislation is passed after well-publicized ethical transgressions by industries or companies result
in harm to the public
economic strike
initiated because the union wants a better contract
The LMRDA strictly regulates unions'
internal business procedures, including elections. •It requires unions to hold regularly scheduled elections of officers using secret ballots .•Ex-convicts are prohibited from holding union office. •Union officials are accountable for union property and funds.
Any person, including an agent,
is liable for his or her own torts and crimes Whether a principal can also be held liable for an agent's torts and crimes depends on several factors.
Although an agent's actual authority ends when the agency
is terminated, an agent's apparent authority continues until the third party receives notice (from any source) that such authority has been terminated. If the principal knows that a third party has dealt with the agent, the principal is expected to notify that person directly. For third parties who have heard about the agency but have not yet dealt with the agent, constructive notice is sufficient. If the agent's authority is written, normally it must be revoked in writing (unless the written document contain an expiration date).
An employer may campaign among its workers against the union, but the NLRB carefully monitors and regulates the tactics used by management: If the employer
issues threats ("If the union wins, you'll all be fired") or engages in other unfair labor practices, the NLRB may either: •Certify the union even though the union lost the election •Ask a court to order a new election
Once an affirmative action program has succeeded in the goal of remedying past discrimination,
it must be changed or eliminated.
When the harassment of co-workers creates a hostile working environment, an employer may be
liable if management knew or should have known about the harassment and failed to take immediate remedial action. A court may also hold an employer liable for harassment by non employees if the employer knew about the harassment and failed to take corrective action.
A disclosed or partially disclosed principal is
liable to a third party for a contract made by the agent.
good faith vs bad faith
look at chart
the lilly ledbetter fair pay act
made discriminatory wages actionable under federal law regardless of when the discrimination began. • Previously, plaintiffs had to file a complaint within a limited time period. • Today, if a plaintiff continues to work for the employer while receiving discriminatory wages, the time period for filing a complaint is practically unlimited.
The Immigration Reform and Control Act (IRCA) in 1986
makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in this country
business as a pure profit maximizer: Originally, the only perceived duty of a corporation was to
maximize profits and generate revenues for its owners. • Although people today may view this idea as greedy or ruthless, the rationale for the profit-maximization theory is still used.
An independent contractor is not an employee but
may be an agent. •Example: An insurance agent is both an independent contractor and an agent of the insurance company for which he sells policies.
A principal who acts through an agent
may be liable for harm resulting from the principal's own negligence or recklessness.
A principal who authorizes an agent to commit a tort
may be liable to persons or property injured thereby, because the act is considered to be the principal's. • An agent acting on the principal's direction can be liable, along with the principal, for committing the tortious act even if the agent was unaware that the act was wrong.
If an agent contracts outside the scope of his or her authority, the principal
may still become liable by ratifying the contract.
an employee alleging discrimination
must file a claim with the EEOC before a lawsuit can be brought against the employer
An employer is not liable for physical harm caused to a third person by the
negligent act of an independent contractor in the performance of the contract. • This is because the employer does not have the right to control the details of an independent contractor's performance.
If the principal is disclosed, the agent has
no contractual liability for the nonperformance of the principal or the third party.
When an agency terminates by operation of law, there is
no duty to notify third persons—unless the agent's authority is coupled with an interest.
Corruption is widespread in some nations, and it can be the
norm in dealing with both government and businesses in certain locations. • Thus, global companies must take special care when doing business in countries where corruption is common.
An employer that wishes to hire an immigrant can attempt to
obtain labor certification, or green cards, for them.
A court will typically hold that employees do not have reasonable expectation
of privacy when using a system (such as an e-mail system) provided by the employer.
The Immigration Act of 1990 placed caps on the number
of visas (entry permits) that can be issued to immigrants each year, including employment-based visas.
If an agent acts within the scope of her or his authority, normally the principal is obligated to
perform the contract regardless of whether the principal was disclosed, partially disclosed, or undisclosed.
E visas
permit the entry of certain foreign investors or entrepreneurs.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination against
persons who have served in the military. • The USERRA makes military service and status a protected class and gives members of this class a right to sue an employer for violations. The USERRA covers all employers, public and private, large and small. • Even an employer with only one employee is subject to its provisions.• The act also applies to United States employers operating in foreign countries.
If the plaintiff can show a connection between the practice and the disparity, they made out a
prima facie case and need not provide evidence of discriminatory intent.
Most agency relationships are based on an agreement that the agent will act for the
principal and that the principal agrees to have the agent so act.
prima facie case
produce sufficient evidence of their claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it.
The Americans with Disabilities Act (ADA)
prohibits disability- based discrimination in all workplaces with fifteen or more workers. • An exception is state government employers, who are generally immune under the Eleventh Amendment. The ADA requires that employers "reasonably accommodate" the needs of persons with disabilities unless to do so would cause the employer to suffer an "undue hardship."
People suffering from alcoholism are also
protected by the ADA. • Employers cannot legally discriminate against employees simply because they suffer from alcoholism
Title VII prohibits employers from discriminating against employees or job applicants on the basis of
race, color, national origin • Race is interpreted broadly to apply to the ancestry or ethnic characteristics of a group of persons. • National origin refers to discrimination based on a person's birth in another country or their ancestry or culture.
Even in an agency at will—in which either party may terminate at any time—the principal who wishes to terminate must give the agent
reasonable notice. • The notice must be at least sufficient to allow the agent to recoup his or her expenses and, in some situations, to make a normal profit.
wage discrimination: the equal pay act
requires equal pay for male and female employees working at the same establishment doing similar work. • To determine whether the Equal Pay Act has been violated, a court looks to the primary duties of the two jobs—the job content rather than the job description controls. • If a court finds that the wage differential is due to "any factor other than gender," such as seniority or merit system, then it does not violate the Equal Pay Act.
A principal may also be liable for harm an agent causes to a third party under the doctrine of
respondeat superior.
Norris-LaGuardia Act of 1932
restricted the power of federal courts to issue injunctions against unions engaged in peaceful strikes.
The Health Insurance Portability and Accountability Act (HIPAA)
restricts the manner in which employers collect, use, and disclose the health information of employees and their families.
An "e-agent" is a
semiautonomous computer program capable of executing specific tasks on behalf of a principal.
Any federal, state, or local government affirmative action program that uses racial or ethnic classifications as the basis for making decisions is subject to
strict scrutiny by the courts—the highest standard to meet.
The Family and Medical Leave Act (FMLA) allows employees to
take time off work for family or medical reasons or in certain situations that arise from military service. •A majority of the states have similar legislation. •The FMLA does not supersede any state or local law that provides more generous protection.
Agency law is similar to contract law in that both an agency and a contract may be
terminated by an act of the parties or by operation of law. • Once the relationship between the principal and the agent has ended, the agent no longer has the right (actual authority) to bind the principal. • For an agent's apparent authority to be terminated, third persons may need to be notified that the agency has been terminated.
Once the principal-agent relationship has been created, both parties have duties
that govern their conduct
After-acquired evidence refers to evidence
that the employer discovers after a lawsuit has been filed. After-acquired evidence of wrongdoing cannot shield an employer entirely from liability for employment discrimination, but it may be used to limit the amount of damages for which the employer is liable.
if the EEOC investigates the dispute
the EEOC will attempt to obtain the parties voluntary consent to an out of court settlement -If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf.
If the EEOC decides not to investigate a claim,
the EEOC will issue a "right to sue" that allows the employee to bring his or her own lawsuit against the employer.
Government (public) employers are constrained in drug testing by .
the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures Drug testing of public employees is allowed by statute for transportation workers, however. Courts normally uphold drug testing of certain employees when drug use in a particular job may threaten public safety. When there is a reasonable basis for suspecting public employees of drug use, courts often find that drug testing does not violate the Fourth Amendment.
When a principal's identity is undisclosed and the agent is forced to pay the third party,
the agent is entitled to be indemnified (compensated) by the principal. The principal had a duty to perform, even though his or her identity was undisclosed, and failure to do so will make the principal ultimately liable.
Vesting -
the creation of an absolute or unconditional right or power. •Vesting gives an employee a legal right to receive pension benefits when they stop working. •Under ERISA, generally all employee contributions to pension plans vest immediately. •Employee rights to employer contributions vest after five years of employment.
A principal or employer normally is not liable for an agent's crime even if
the crime was committed within the scope of authority or employment. An exception to this rule is made when the principal or employer participated in the crime by conspiracy or other action.
When determining whether an employer should be held liable for violating an employee's privacy rights, the courts generally weigh
the employer's interests against the employee's reasonable expectation of privacy.
Once the prima facie case is established, the burden shifts to
the employer-defendant, who must articulate a legal reason for not hiring the plaintiff. • If the employer did not have a legal reason for taking the adverse employment action, the plaintiff wins. • If the employer can articulate a legitimate reason for the action, the burden shifts back to the plaintiff. • To prevail, the plaintiff must then show that the employer's reason is a pretext (not the true reason) and that the employer's decision was actually motivated by discriminatory intent.
Because of their inherently discriminatory nature, affirmative action programs may violate
the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
NLRB rules that took effect in 2015 significantly reduced the time between
the filing of a petition and the ensuing election. •The time before an election is held has changed from an average of thirty-eight days to as little as ten days after the filing.
Ordinarily, a power of attorney terminates on
the incapacity or death of the person giving the power.
n contrast, when an employer hires an independent contractor—such as a freelance artist, writer, or computer programmer—
the independent contractor normally owns the copyright.
When one party to the agency relationship violates his or her duty to the other party,
the non breaching party is entitled to a remedy.
The UETA also stipulates that if an e-agent does not provide an opportunity to prevent errors at the time of the transaction,
the other party to the transaction can avoid the transaction.
If an agent has no authority but nevertheless contracts with a third party,
the principal cannot be held liable on the contract. • It does not matter whether the principal was disclosed, partially disclosed, or undisclosed.
To counteract rationalization, businesspersons should first decide
the right thing to do on an ethical level before making a business decision, then figure out how to mitigate the costs of doing the right thing
Working times and hours are not restricted for persons between the ages of sixteen and eighteen, but
they cannot be employed in hazardous jobs.
The Labor-Management Relations Act (LMRA or Taft-Hartley Act) was passed in 1947
to prohibit certain unfair union practices.
An employee may take up to ________ of military caregiver leave within a _________ to care for a family member with a ___________ as a result of military duty.
twenty-six weeks, twelve-month period, serious injury or illness incurred
The third party's agreement with the agent is viewed as merely an
unaccepted offer. • The third party can revoke it at any time, without liability, before the principal ratifies the contract. • The agent, however, may be liable to the third party for misrepresenting her or his authority.
The premier philosophical theory for outcome-based decision making is
utilitarianism
In some jurisdictions, a principal may be liable under specific statutes if an agent, in the course and scope of employment,
violates certain regulations.
Any group health-care plan that makes a disability-based distinction in its benefits
violates the ADA (unless the employer can justify its actions under the business necessity defense).
An employer can voluntarily pay overtime to ineligible employees but cannot
waive or reduce the overtime requirement of the FLSA.
A principal is exposed to tort liability
whenever a third person sustains a loss due to the agent's misrepresentation.
Outsourcing covers a
wide spectrum of ethical gray areas and is not always clearly unethical.
a 4 part analysis
will assist the firm in making decisions that not only maximize profits but also reflect good corporate citizenship. 1. The legal implications of each decision 2. The public relations impact 3. The safety risks for consumers and employees 4. The financial implications
unintentional discrimination 1. by comparing the employer's workforce to the pool of qualified individuals available in the local labor market the plaintiff must show that
• (1) as a result of educational or other job requirements or hiring procedures, • (2) the percentage of nonwhites, women, or members of other protected classes in the employer's workforce • (3) does not reflect the percentage of that group in the pool of qualified applicants.
Possible justifications include that the discrimination resulted from:
• A business necessity• A bona fide occupational qualification • A seniority system
An agent's authority can be either:
• Actual (express or implied) • Apparent
2. Changed circumstances
• An agency terminates when an event occurs that has such an unusual effect on the subject matter of the agency that the agent can reasonably infer that the principal will not want the agency to continue.
for the act to apply (ADEA- age)
• An employer must have twenty or more employees .• The employer's business activities must affect interstate commerce.
A Pattern of Conduct
• Apparent authority usually comes into existence through a principal's pattern of conduct over time.
Cost-Benefit Analysis
• Applying the utilitarian theory requires the following steps: A determination of which individuals will be affected by the action in question A cost-benefit analysis - A decision-making technique that involves weighing the costs of a given action against the benefits of the action. A choice among alternative actions that will produce maximum societal utility (the greatest positive net benefits for the greatest number of individuals)
The act does not protect individuals who:
• Are actually using illegal drugs • Have used drugs casually in the past • They are not considered addicts and therefore do not have a disability (addiction).
Today, an affirmative action program normally is constitutional only if it:
• Attempts to remedy past discrimination • Does not make use of quotas or preferences
Courts make an exception to this rule when the contract involves unusually hazardous activities, such as:
• Blasting operations• The transportation of highly volatile chemicals • The use of poisonous gases • In those situations, strict liability is imposed, and an employer cannot be shielded from liability merely by using an independent contractor.
Fostering of Unethical Conduct
• Business owners and managers sometimes take more active roles in fostering unethical and illegal conduct, with negative consequences for their businesses.
private company codes of ethics
• Company codes are not laws.• Instead, they are rules that the company sets forth and that it can enforce. • Codes of conduct typically outline the company's policies on particular issues and indicate how employees are expected to act.
Many laws are designed to prevent fraudulent (misleading, deceptive) conduct in various contexts, including:
• Contracts• Health care• Financial reporting • Mortgages• Sales
In agency law, implied authority of the agent can arise from:
• Custom • The position the agent occupies • Being reasonably necessary to carry out express authority
undue hardship
• Employers who do not accommodate the needs of persons with disabilities must demonstrate that the accommodations would cause undue hardship in terms of being significantly difficult or expensive for the employer. • Usually, the courts decide whether an accommodation constitutes an undue hardship on a case-by-case basis.
Title 7 applies to
• Employers with fifteen or more employees • Labor unions with fifteen or more members • Labor unions that operate hiring halls• Employment agencies • State and local governing units or agencies • Most federal government employment When Title VII applies to the employer, any employee—including an undocumented worker—can bring an action for employment discrimination.
During the 1960s, all of the following were required to implement affirmative action policies:
• Federal and state government agencies • Private companies that contracted to do business with the federal government • Institutions that received federal funding Title VII of the Civil Rights Act neither requires nor prohibits affirmative action.
• A principal may be liable in any of the following situations if it results in the agent's committing a tort:
• Giving improper instructions • Authorizing the use of improper materials or tools • Establishing improper rules
hostile environment
• Hostile-environment harassment occurs when a pattern of sexually offensive conduct runs through the workplace and the employer has not taken steps to prevent or discourage it. • Such harassment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult, and this harassment is so severe or pervasive that it alters the conditions of employment.
Liability for contracts formed by an agent depends on:
• How the principal is classified • Whether the actions of the agent were authorized or unauthorized
In this case, the English court held that:
• If a servant merely took a detour from his master's business, the master will be responsible. • If the servant was on a "frolic of his own" and not in any way "on his master's business," the master will not be liable.
4. Bankruptcy
• If either the principal or the agent petitions for bankruptcy, the agency usually is terminated.
pretext
• If the employer offers a legitimate reason for its action, then the plaintiff must show that the stated reason is only a pretext. • The plaintiff is required to prove that the plaintiff's age was the real reason for the employer's decision.
The agent is not liable:
• If the third party knows at the time the contract is made that the agent does not have authority • If the agent expresses to the third party uncertainty as to the extent of his or her authority
Problems with the Utilitarian Approach
• In some situations, an action that produces the greatest good for the most people may not seem to be the most ethical.
If a job applicant or an employee with a disability, with reasonable accommodation, can perform essential job functions, however, the employer must make the accommodation. • Required accommodations may include:
• Installing ramps for a wheelchair • Establishing flexible working hours -Creating or modifying job assignments -Designing or improving training materials and procedures
The IDDR approach:
• Involves organizing the issues and approaching them systematically • Can help eliminate various alternatives and identify the strengths and weaknesses of the remaining alternatives • Contains four steps
Unrealistic Goals for Employees
• Managers who set unrealistic production or sales goals increase the probability that employees will act unethically.
employees can
• Prohibit the use of alcohol in the workplace • Require that employees not be under the influence of alcohol while working • Fire or refuse to hire a person who is an alcoholic if: 1. The person poses a substantial risk of harm to himself or herself or to others. 2. The risk cannot be reduced by reasonable accommodation.
The social aspects of CSR require corporations to demonstrate that they are:
• Promoting goals that society deems worthwhile • Moving toward solutions to social problems
quid pro quo
• Quid pro quo harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits.
Prohibits job discrimination against employees, applicants, and union members on the basis of Protected Class:
• Race • Color • National origin • Religion • Gender
Plaintiffs can use constructive discharge to establish any type of discrimination claim under Title VII, including:
• Race • Color • National origin • Religion • Gender • Pregnancy It is most commonly asserted in cases involving sexual harassment. Constructive discharge may also be used in cases involving discrimination based on age or disability.
Plaintiffs in lawsuits brought under the ADA may seek many of the same remedies that are available under Title VII, including:
• Reinstatement • Back pay • A limited amount of compensatory and punitive damages (for intentional discrimination)
If the plaintiff successfully proves that unlawful discrimination occurred, they may be awarded:
• Reinstatement • Back pay • Retroactive promotions • Damages Compensatory damages are available only in cases of intentional discrimination. Punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifference to an individual's rights.
In discussing these alternatives, decision makers should:
• Take time to think through each alternative completely • Analyze each alternative's potential impact on stakeholders• Evaluate each option's: • Strengths• Weaknesses• Ethical consequences • Legal consequences
pregnancy discrimination
• The Pregnancy Discrimination Act expanded Title VII's definition of gender discrimination to include discrimination based on pregnancy. • Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work.
Businesses must comply with a host of federal and state laws and regulations, including those pertaining to:
• The environment• Financial reporting • Safety standards
The following events terminate agency authority automatically because their occurrence makes it impossible for the agent to perform or improbable that the principal would continue to want performance. 1. Death or insanity
• The general rule is that the death or insanity of either the principal or the agent automatically and immediately terminates an ordinary agency relationship. • Knowledge of the death or insanity is not required.
Bans discrimination at any stage of employment, including:
• The hiring process • Discipline procedures • Discharge • Promotion • Benefits
When ratification occurs:
• The principal is bound to the agent's act. • The act is treated as if it had been authorized by the principal from the outset.
prima facie age discrimination
• To establish a prima facie case of age discrimination, the plaintiff must show that she or he was: 1. A member of the protected age group 2. Qualified for the position from which she or he was discharged 3. Discharged because of age discrimination
replacing older workers with younger workers
• When an employer replaces an older, higher-salaried employee with a younger, lower-salaried worker, the plaintiff must prove that the discharge was motivated by age bias in order to establish a case of age discrimination. • The plaintiff need not prove that she or he was replaced by a person "outside the protected class" (under the age of forty). • The replacement worker need only be younger than the plaintiff. • The greater the age gap, the more likely the plaintiff will succeed in showing age discrimination.
5. War
• When the principal's country and the agent's country are at war with each other, the agency is terminated. • The agency is automatically suspended or terminated because there is no way to enforce the legal rights and obligations of the parties.
3. Impossibility
• When the specific subject matter of an agency is destroyed or lost, the agency terminates.• When it is impossible for the agent to perform the agency lawfully because of a change in the law, the agency terminates.
The principal's liability depends on:
• Whether the agent was actually or apparently authorized to make representations• Whether the representations were made within the scope of the agency • The principal is always directly responsible for an agent's misrepresentation made within the scope of the agent's authority.
Wages and Working Conditions U.S. businesses may hire contractors in developing nations that engage in
• unethical behavior at their worksites.
fiduciary
•A person having a duty created to act primarily for another's •a relationship founded on trust and confidence.
exceptions based on tort theory
•Abusive discharge procedures may result in a lawsuit for intentional infliction of emotional distress or defamation. •Some courts have permitted workers to sue their employers under the tort theory of fraud. •Fraud may be alleged when an employer makes false promises to a prospective employee.
notification
•An agent is required to notify the principal of all matters that come to her or his attention concerning the subject matter of the agency. •The law assumes that the principal is aware of any information acquired by the agent that is relevant to the agency—regardless of whether the agent actually passes on this information to the principal.
Members have the right to:
•Attend union meetings •Participate in union meetings •Nominate officers •Vote in most union proceedings
An exception is made if the parties agree in writing that the work is a "work for hire" and the work falls into one of nine specific categories, including:
•Audiovisual works •Collective works (such as magazines) •Motion pictures •Textbooks •Tests •Translations
exceptions based on public policy
•Basis that the employer's reason for firing the employee violates a fundamental public policy of the jurisdiction. •The courts require that the public policy involved be expressed clearly in the statutory law governing the jurisdiction.
To be self-authorized, a worker must either:
•Be a lawful permanent resident •I-551 Permanent Resident Card -A document, known as a "green card," that shows that a foreign-born individual can legally work in the United States. •A properly stamped foreign passport •Have a valid temporary Employment Authorization Document
The agent has the right to:
•Be compensated •Be reimbursed and indemnified •Have a safe working environment •Perform agency duties without interference by the principal
Any breach of a fiduciary duty by an agent may justify the principal's termination of the agency. •The main actions available to the principal are:
•Constructive trust •Avoidance •Indemnification
The courts have carved out various exceptions to the employment-at-will doctrine based on:
•Contract theory •Tort theory •Public policy
Children under fourteen years of age are restricted on how many hours per day and per week they can work, and they are allowed to do only the following types of work:
•Deliver newspapers •Work for their parents •Be employed in entertainment and •(with some exceptions) agriculture
No state covers all employees under its workers' compensation statute: Typically, the following workers and employees are excluded:
•Domestic workers •Agricultural workers •Temporary employees •Employees of common carriers (companies that provide transportation services to the public)
agency relationships exist between
•Employers and employees •Employers and independent contractors who are hired to perform special tasks and services
employees who are exempt from the FLSA's overtime provisions include
•Executive, •Administrative, and •Professional employees •Outside salespersons •Those who create computer code
tax contributions
•Federal Insurance Contributions Act (FICA), both employers and employees contribute to Social Security and Medicare, although the contributions are determined differently.•The employer withholds the employee's FICA contributions from the employee's wages and ordinarily matches the contributions.
Employers that are exempt from these prohibitions and may conduct polygraph tests include:
•Federal, state, and local government employers •Certain security service firms •Companies that manufacture and distribute controlled substances •Companies investigating losses attributable to theft, including embezzlement and the theft of trade secrets
Under the act, an employer cannot discharge an employee who:
•Files a complaint •In good faith, refuses to work in a high-risk area if bodily harm or death might result
indemnify (compensate)
•For liabilities incurred because of authorized and lawful acts and transactions •Example:If the agent, on the principal's behalf, forms a contract with a third party, and the principal fails to perform the contract, the principal is obligated to compensate the agent for any costs incurred by the agent as a result of the principal's failure to perform the contract. •For the value of benefits that the agent confers on the principal •This rule applies to gratuitous agents as well.
WARN act is intended to
•Give workers advance notice so that they can start looking for new jobs while they are still employed •Alert state agencies so that they can provide training and other resources for displaced workers
Workers' Compensation versus Litigation
•If an employee accepts workers' compensation benefits, they may not sue for injuries caused by the employer's negligence •No fault •A worker may sue an employer who intentionally injures the worker, however.
exceptions based on contract theory
•Implied employment contract between the employer and the employee. •Whether an employment manual creates an implied contractual obligation is the employee's reasonable expectations. •An employer's oral promises to employees regarding discharge policy may also be considered part of an implied contract. •If the employer fires a worker in a manner contrary to what was promised, a court may hold that the employer has violated the implied contract and is liable for damages.
Occupational Safety and Health Act (OSHA)
•Imposes on employers a general duty to keep the workplace safe. •OSHA has establishes specific safety standards that employers must follow, depending on the industry.
after a strike ends
•In a typical strike, the employer has a right to hire permanent replacements during the strike. •The employer need not terminate the replacement workers when the economic strikers seek to return to work .•In other words, striking workers are not guaranteed the right to return to their jobs after the strike if satisfactory replacement workers have been found. •If the employer has not hired replacement workers to fill the strikers' positions, then the employer must rehire the economic strikers to fill any vacancies. •Employers may not discriminate against former economic strikers. •Those who are rehired retain their seniority rights.
Worker's Compensation Law
•Instead of suing the employer, an injured worker files a claim with the state agency or board that administers local workers' compensation claims.•All states require employers to provide workers' compensation insurance, but the specific rules vary by state.•Most states have a state fund that employers pay into for workers' compensation coverage.•Employers can purchase insurance from a private insurer as an alternative to paying into the state fund.•Most states also allow certain employers to be self-insured—that is, employers that show an ability to pay claims do not need to buy insurance.
An agent who acts gratuitously—that is, without payment:
•Is subject only to tort liability •He or she cannot be liable for breach of contract because there is no contract. •Must perform in an acceptable manner •Is subject to the same standards of care and duty to perform as other agents
medicare
•Medicare is a federal government health-insurance program administered by the Social Security Administration for: •People sixty-five years of age and older •Some under age sixty-five who are disabled
The principal has tort remedies if the agent engages in any of the following:
•Misrepresentation •Negligence •Deceit •Libel •Slander •Trespass
state minimum wages
•More than half of the states have set their minimum wages above the federal minimum wage. •When the state minimum wage is greater than the federal minimum wage, the employee is entitled to the higher wage.
To gain authorization for hiring a foreign worker, an employer must show that:
•No U.S. worker is qualified, willing, and able to take the job. •Any U.S. applicants who meet the stated job qualifications must be interviewed for the position. •The qualifications required for the job are a business necessity.
an injured employee must
•Notify her or his employer promptly (usually within thirty days of the accident) •File a workers' compensation claim within a certain period (sixty days to two years) from the time the injury is first noticed, rather than from the time of the accident
OSHA Inspections
•OSHA compliance officers may enter and inspect the facilities of any establishment covered by the Occupational Safety and Health Act. •Employees may also file complaints of violations.
Employment-based visas may be classified as either:
•Permanent (immigrant) •Temporary (nonimmigrant) •Employers who wish to hire workers with either type of visa must comply with detailed government regulations.
Employee Polygraph Protection Act:
•Prohibits employers from requiring, suggesting, or requesting employees or job applicants to take lie-detector tests •Restricts employers' ability to use or ask about the result of any lie-detector test •Restricts employers' ability to take any negative employment action based on the results of a lie-detector test
Prohibited unions from:
•Refusing to bargain with employers •Engaging in certain types of picketing •Featherbedding (causing employers to hire more employees than necessary)
Federal and state governments participate in insurance programs designed to protect employees and their families from the financial impact of:
•Retirement •Disability •Death •Hospitalization •Unemployment •The key federal law in this area is the Social Security Act.
More than half of employers engage in some form of electronic monitoring of their employees.•Many employers:
•Review their employees' e-mail, social media posts, and other Internet messages •Take video recordings of their employees at work •Record their employees' telephone conversations •Listen to their employees' voice mail
for financial control consider
•Significant investment in the equipment the worker uses in working for someone else. •Unreimbursed expenses, independent contractors are more likely to incur unreimbursed expenses than employees. •Opportunity for profit or loss is often an indicator of an independent contractor. •Services available to the market. Independent contractors are generally free to seek out business opportunities. •Method of payment.An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time even when supplemented by a commission. However, independent contractors are most often paid for the job by a flat fee.
In addition, the government protects employees' income through:
•Social Security •Medicare •Unemployment insurance •The regulation of pensions and health insurance plans
Statutes governing the following workplace issues apply only if an employer-employee relationship exists:
•Social Security• Withholding taxes •Workers' compensation •Unemployment compensation •Workplace safety •Employment discrimination
Individuals with H-1B visas can
•Stay in the United States for three to six years •Work only for the sponsoring employer •The recipients of H-1B visas include numerous high-tech workers.
an agency agreement can
•Take the form of an express written contract •Be created by an oral agreement •Be implied by conduct
Unemployment Insurance
•The Federal Unemployment Tax Act (FUTA) created a state-administered system that provides unemployment compensation to eligible individuals who have lost their jobs. •To be eligible for unemployment compensation, a worker must be willing and able to work. •Workers who have been fired for misconduct or who have voluntarily left their jobs are not eligible for benefits •Workers must be actively seeking employment to continue receiving benefits.
OSHA notices, records, and reports
•The Occupational Safety and Health Act requires that employers: •Post certain notices in the workplace •Maintain specific records (Employers with eleven or more employees are required to keep occupational injury and illness records for each employee, Each record must be made available for inspection when requested by an OSHA compliance officer) -Submit reports
Social security
•The Social Security Act (or OASDI) provides for old-age (retirement), survivors', and disability insurance. •Retired workers who are covered by Social Security receive monthly payments from the Social Security Administration, which administers the Social Security Act.
loyalty
•The agent has the duty to act solely for the benefit of his or her principal and not in the interest of the agent or a third party. •Any information or knowledge acquired through the agency relationship is confidential. •Examples: Trade secrets and customer lists compiled by the principal •It is breach of loyalty to disclose such information during the agency relationship or after its termination.
The employer has control over unionizing activities that take place on company property and during working hours: The employer may limit:
•The campaign activities of union supporters as long as it has a legitimate business reason for doing so •When and where union solicitation may occur in the workplace, provided that the employer is not discriminating against the union
FLSA gives employers a tip credit toward the minimum wage amount
•The employer is required to pay only $2.13 an hour in direct wages—if that amount, plus the tips received, equals at least the federal minimum wage. •If an employee's tips and direct wages do not equal the federal minimum wage, the employer must make up the difference.
Document requirements (IRCA)
•The employer must declare, under penalty of perjury, that an employee produced documents establishing his or her identity and legal employability. •Acceptable documentation includes: •A U.S. passport establishing the person's citizenship •A document authorizing a foreign citizen to work in the United States, such as a permanent resident card
compensation
•The principal has a duty to pay the agent for services rendered and to pay that compensation in a timely manner. •Unless the agency relationship is gratuitous and the agent does not act in exchange for payment, the principal must pay the agreed-on value for the agent's services. •If no amount has been expressly agreed on, then the principal owes the agent the customary compensation for such services.
the right to strike
•The right to strike is guaranteed by the NLRA, within limits. •Strike activities, such as picketing, are protected by the free speech guarantee of the First Amendment to the U.S. Constitution. •Persons who are not employees have a right to participate in picketing an employer. •The NLRA also gives workers the right to refuse to cross a picket line of fellow workers engaged in a lawful strike. •Employers are permitted to hire replacement workers to substitute for the striking workers.
I-9 Employment Verification
•To comply with IRCA requirements, an employer must perform I-9 verifications for new hires, including those hired as "contractors" or "day workers" if they work under the employer's direct supervision.
Behavioral control categories are:
•Type of instructions given, such as when and where to work, what tools to use or where to purchase supplies and services. Receiving the types of instructions in these examples may indicate a worker is an employee. •Degree of instruction, more detailed instructions may indicate that the worker is an employee.Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor. •Evaluation systems to measure the details of how the work is done points to an employee. Evaluation systems measuring just the end result point to either an independent contractor or an employee. •Training a worker on how to do the job --or periodic or on-going training about procedures and methods --is strong evidence that the worker is an employee. Independent contractors ordinarily use their own methods.
private retirement plans- •Employee Retirement Income Security Act (ERISA)
•U.S. Department of Labor to enforce its provisions governing employers that have private pension funds for their employees .•ERISA does not require an employer to establish a pension plan. •When a plan exists, however, ERISA provides standards for its management.
NLRA bargaining
•Under the NLRA, employers and unions have a duty to bargain in good faith. •Bargaining over certain subjects is mandatory. •A party's refusal to bargain over these subjects is an unfair labor practice that can be reported to the NLRB.
accounting
•Unless the agent and principal agree otherwise, the agent must keep and make available to the principal an account of all property and funds received and paid out on the principal's behalf. •The agent has a duty to maintain a separate account for the principal's funds and must not intermingle these funds with the agent's personal funds. •If a licensed professional (such as an attorney) violates this duty, he or she will not only be liable to his or her client (the principal) for failure to account, but may also be subject to disciplinary action by the licensing authority (such as the state bar association).
Lockouts usually are used either:
•When the employer believes that a strike is imminent •The parties have reached a stalemate in collective bargaining
no right to specific performance
•When the principal-agent relationship is not contractual, the agent has no right to specific performance. •An agent can recover for past services and future damages but cannot force the principal to allow him or her to continue acting as the principal's agent.
Subjects for negotiation may include:
•Workplace safety •Employee discounts •Health-care plans •Pension funds• Apprentice and scholarship programs
relationship guidelines include
•Written contracts which describe the relationship the parties intend to create. Although a contract stating the worker is an employee or an independent contractor is not sufficient to determine the worker's status. •Benefits. Businesses providing employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay have employees. Businesses generally do not grant these benefits to independent contractors. •The permanency of the relationship is important. An expectation that the relationship will continue indefinitely, rather than for a specific project or period, is generally seen as evidence that the intent was to create an employer-employee relationship. •Services provided which are a key activity of the business.The extent to which services performed by the worker are seen as a key aspect of the regular business of the company.
