Business Law Exam 1 WS (Topics 2 thru 12)
Why don't employers incur vicarious liabilities when employees are injured in the course of business
C - We don't want the harmed employee to file suit against the employer (could damage their relationship)
What should you consider when hiring a lawyer
(1.) Area of legal practice needed handled (2.) Size of law firm (3.) Fee structure
What considerations are involved with attorney fees
(4) C - 1. What costs and other expenses are covered in the fee. 2. Does the fee include the lawyer's overhead and costs or are those charged separately? 3. How will the costs for staff, such as secretaries, messengers, or paralegals be charged? 4. Will contingent fees be calculated before or after expenses?
What fees are usually associated with Representation Agreements
(7) E- Usually an hourly fee E- Fees that need to be reimbursed to the lawyer are outlined in Representation Agreements (e.g. legal fees like: copies of documents, deposition (reporter transcription services), mileage, etc) E- Contingency fee —> Lawyer only gets to keep a % of whatever the attorney recovers for the client if they win the case. E - Consultation Fee --> The lawyer may charge a fixed or hourly fee for your first meeting E - Flat Fee --> Offered only if your case is relatively simple or routine E - Referral Fee --> A lawyer who refers you to another lawyer may ask for a portion of the total fee you pay for the case. E - Retainer Fee --> basiscally a down payment E - Statutory Fee --> statute or a court may set and approve a fee that you pay for probate, bankruptcy, or other proceedings. C - Hourly fees, contingency fees, consultation fee, flat fee, referral fee, retainer fees, statutory fee.
What attorneys are most commonly used in business law
(Describe each) E- Corporate lawyers - Cover the wide range of other legal issues that businesses deal with, including business organizations, mergers and acquisitions, leases, intellectual property, etc. C - Most common in business law: Business and Commercial
What is a contract
- E - Any engagement with a business involving a service/good is a contract - E - Enforceable through - E - Allow business' to: (1.) Rely upon the promises being made by others and (2.) Remedy any failure of the other party to perform the promise (called a Breach) through the court system. C - A legally enforceable agreement between two or more parties that creates an obligation to do or not do something.
How can a breach of fiduciary duty be remedied
C - if the breach can be proven to have been committed out of malice or fraud the plaintiff could receive reimbursement for damages and punitive damages
What do personal injury lawyers do
E- Classified as either plaintiff's attorneys or defendant's attorneys. C - They handle lawsuits involving injuries, such as those caused by defective products, medical negligence/malpractice, vehicle accidents, dangerous conditions on the property, etc.
What's the main difference between plaintiff and defense attorneys in the context of employee vs employer litigations?
E- Cover product liability lawsuits, E- Plaintiff files the claim to start litigation in personal injury cases. E- C - Defense attorney represents a business; Personal injury lawyers rep individual
What do Criminal Lawyers do
E- Criminal offenses are defined by federal, state, and local laws C - Criminal Law involves the prosecution and defense of individuals charged with committing acts against society.
What does it mean to have an attorney on retainer
E- "Paying Retainer" means paying upfront E - "Retainer agreement" is the actual contract being signed C - "Having on retainer" means fixed fee for access to services
What does a breach in Fiduciary duty depend on
C - 1. Whether a fiduciary relationship existed at the time of the dispute 2. The scope of the relationship and duties of the fiduciary 3. Whether any of these duties were breached within the scope of the relationship
What are the advantages of a nonprofit company
C - 1. Contributions are subject to tax 2. Contributions are tax deductible for the donor 3. Some benefits may be tax deductible for the employees
Common ways an attorney can help a small business
C - (1.) Creating legal agreements (2.) Submitting necessary tax forms (3.) Drafting contracts
What's the main trade-off between LLC and S corps
C - (1.) S Corp owners only pay self employment taxes on money received as compensation for their services, not on the profits that pass through the corporation. LLCs have to pay self-employment taxes on all business profits. (2.) They're easier to form (3.) Owners are personally liable for debts
What's a negotiable instrument
C - A document, such as a note or check, that contains an unconditional promise to pay a specified amount of money on demand or at a specified time
At what point does a partnership need to be reclassified as a corporation
C - A standard LLC has no upper limit when it comes to the number of members the business can have. The only exception is for those LLCs that choose to be taxed as S corporations. This designation carries a 100 member limit.
What's a secured transaction
C - A transaction intended to create a security interest in personal property or fixtures of a property
What are some examples (4) of personal injury claims
C - Defective product, medical malpractice, car accidents, and slipping and falling on someone else's property.
What's guaranteed under the right to counsel
C - If the criminal offense carries a possible jail or prison sentence, the state is required to provide the defendant with an attorney if he or she can't afford one.
What does LLC stand for
C - Limited Liability company
How do you find who owns the DBA
C - Owners
How do LLCs avoid double taxation
C - Passed-through taxation
What's a contingency fee arrangement
C - The attorney will agree that payment for services will only be paid if the attorney is successful in the case, and then it is usually a percentage of the amount of money the attorney recover for the client
What entity governs stocks and investments, workplace safety and employment laws, and environmental protections
C - The federal government
What is tort law
C - Tort law is an area of common law that gives people the legal right to pursue a legal liability that doesnt relate to contract law
What are the different types of employee/employer relationship liabilities that an employer can incur
C - Vicarious Liability, Negligent Hiring or Retention, and Harassment
What type of services might the personal injury attorney offer the client
C - 1. Evaluate the extent of the damages, and determine whether the person or business is liable for the injuries. 2. Advise his or her client on whether it's better to settle or go to trial. 3. Recommend other helpful resources (social workers, financial advisors, or medical professionals)
What does the employer need to prove to avoid a liability from harassment without tangible employment action
C - 1. The employer exercised reasonable care to prevent and promptly correct any harassment; and 2. The employee suffering the harassment unreasonably failed to complain to management or to avoid harm otherwise.
What are Representation Agreements
E- AKA Engagement letter E- Describes relationship (pay, lawyers years of experience, reimbursements of costs the lawyer incurs) C - Include the promises that each party is making to the other, such as: 1) exactly what the lawyer is agreeing to do for the client (including any limitations), 2) how the lawyer will communicate with the client, and 3) how the client will pay the lawyer.
Which companies have the LLC classification
E - "Combination of the best attributes of general partnerships and business corporations" • Limited Liability for owners but still have decentralized structure o Less risk of piecing the corporate veil E - business' taxes are "passed-through" to the owners of the LLC, meaning the LLC is not a tax entity in itself and does not pay taxes on its income. • Owners aren't personally liable fo business' obligations • Management can be flexibly structured • Owners/investors get hands-on management rights • Can choose to be taxed like a general partnership (no double-taxation) or Corporation (C -Corp or S-Corp) C - Most small businesses
How are C Corps different from S Corps
E - All regular for-profit business corporations are subject to double taxation • C -Corp Classification by default E - Smaller Corporations can elect to avoid double taxation if they qualify --> S-Corp classification • must have ≥ 100 shareholders C - S-Corps aren't subject to double taxation
What are the disadvantages to the Corporation Structure
E - Articles of Incorporation E - Business corps require attention to other business organizations... E - Double Taxation - Income is taxed to the business when it is earned and through shareholder dividends when received E - ^^ arises if the business owns property that appreciates in value and the business is formed as a corporation. C - (1.) Need to file Articles of Incorporation, (2.) Need to understand other business organizations, (3.) Subject to double taxation
When can directors and officers of a corporation be held liable personally for liabilities?
E - Because directors and officers are charged with the responsibility to manage the business of a corporation, they have a risk of liability that goes beyond piercing the corporate veil. E - Officers and directors can be held liable for financial harm caused to the owner/investors, especially if that harm results from a violation of the officer or director's fiduciary duties to the owner/investors E - Fiduciary duty - Must act in a way that will benefit someone else, usually financially C - When they violate their fiduciary duties through: (1.) Injurious Actions (actions that cause injury to the plaintiff) (2.) Not separatating accounts Personal and (3.) Business Interests are too close (4.) Not following Corporate Norms
How is an LLC different from a Corporation
E - Corporations are often able to provide benefits to those that are both employees and investors in the business. (e.g. health insurance) E - Bendefits aren't taxed as income for employee because they're deducted from the business' profits E - LLC can only deduct a portion of the cost of the health insurance (and other benefits) premiums paid for the employees. E - a corporation has a great incentive system built directly into the structure of the business (e.g. stock options) that can help small business retain great employees. C - Corps get non-taxible employee benefits but LLCs can be taxed like partnerships
What are the different attributes specific to Limited Liability Partnerships?
E - Created by filing Registration of Limited Liability Partnership with the appropriate state agency (e.g. the Secretary of State) E - All partners assume liability for their own actions and the actions of those they supervise. E - Partners only have personal liability for the debts and obligations caused by other partners to the extent of the LLP's assets and/or their capital contributions (investments) to the LLP. C - (1.) More expensive & tedious to form than Partnerships and Sole Pro (2.) Partners pay their own shares of personal income tax on gains (3.) Partners are not liable for the torts of other partners (4.) Income and losses are distributed based on ownership stake (5.) Partners remain personally liable for obligations to business creditors, landlords and lenders (6.) Limited to certain professions in certain states
What are the elements of a Breach of Fiduciary Duty Claim
E - Duties depend on the case but could be: good faith and fair dealing, the duty of full disclosure, or the duty of loyalty E - Damages are an element if the duty caused the plaintiff to suffer damages C - Duty, Breach, and Damages
What is a Tort of Negligence
E - Employers are Vicariously Liable under the doctrine of Respondeat Superior for torts committed by an employee so long as the employee's tort was committed in the Course of Employment. E - Vicariously Liable - Refers to a situation where liability is imposed on an employer for the acts of an employee. E - Respondeat Superior - a doctrine in tort law that makes a master liable for the wrong of a servant C - Job related accidents that result of a tort committed by an employee, even if it's simply caused by the employee's carelessness
What are the two basic principles that underlie employer liability
E - Employers are seen as directing the behavior of their employees • must share in the good (profits) as well as the bad (legal liability) results of that behavior. E - When employees are injured the legal system is interested in making the victim whole, assigning liability to the employer C - Employers are responsibile for their employee's actions and liable for work-related-injuries
What are 5 different types of fiduciary relationships?
E - Fiduciary Relationship - When a party places confidence and trust in another party with that party's full knowledge. E - Agency relationships are fiduciary relationships even if the contract doesn't explicitly say so. C - 1. Duty to act in best interest of the principal 2. Duty to avoid conflicts of interest 3. Duty to keep information confidential 4. Duty to disclose information to the principal 5. Duty to account for anything that belongs to the principal
Which businesses have the Professional Corporation Classification
E - Formation requires the approval and regulation of the administrative government agencies that license and regulate their profession. Example: Attorneys, architects, engineers, public accountants, and physicians C - Given to corporations ran by professionals that want to operate their businesses in a corporation form of business entity
What are some of the important considerations for LLCs
E - Formed by filing Articles of Organization - E - Owners and investors are called members, either classified as: • Member-Managed - Members directly manage and have fiduciary duties to each-other. (Ran just like a partnership) • Manager-Managed - Members will elect managers with fiduciary duties to their members. E - LLC structure starts lacking when the number of investors/owners increases because owners will eventually want stocks (must reclassify as corporation) C - Either member managed or manager managed
What is a writ of certiorari?
E - If an appellate court decides to review a case, it grants cert E - denying certiorari is the appellate court's decision to not review a case C - Orders a lower court to deliver its record in a case so that the higher court may review it.
Who's liable when an employee is injured on the job?
E - If the person injured as a result of the tort is an employee, then the employer is generally not liable for the damages under tort law. E - Injured employees usually get medical bill and wage reimbursement C - Workers' Compensation systems administered by the state government will provide an insurance-like process for employees to be compensated for their injuries rather than having to sue their employers IF the employee was acting within the scope of his or her job when the accident occurred.
What is flow through taxation
E - Income is taxed regardless if its paid out as a dividend or not C - With flow-through entities, the income is taxed only at the owner's individual tax rate for ordinary income: The business itself pays no corporate tax.
What are the three basic forms of Discovery?
E - Interrogatories - questions requiring your version of the facts and of your claims. E- Form interrogatories are pre-printed E- Special interrogatories are case specific question E - Despositions - involves a living, breathing witness being asked questions about the case. C - written discovery (interrogatories), requests for document production and depositions
What is the UCC
E - Involves the sales of goods, leases of good, negotiable instruments, and secured transactions. E- You want to know the type of rules that govern the contracts you make with entities in your supply chain. E - Any state can modify C - UCC is a uniform law (most important) designed to make the sale of goods consistent from state to state.
What's in the registration report
E - LLC's don't have the follow the registration report but corporations do (one of their formalities) C - Organization has to identify all operators and directors (BoD)
What's the #1 driver for hiring a business and commercial lawyer
E - Many firms try to navigate these issues on their own --> leads to canceled contracts, lost profits, and even legal penalties if the other party decides to sue. C - Each industry faces its own unique business and commercial law issues.
What are other types of employer liabilities (Aside from Vicarious Liabilities)
E - Negligent Hiring or Retention - Carelessness by the employer in hiring or retaining an employee that the employer knew or should have known could cause harm to others. • Employer can be held liable for employee's criminal conduct E - Harassment - Employer's liability for persistently or wrongfully subjecting an employee to offensive or troublesome behavior or environment. • Must be sufficiently frequent or severe or lead to tangible employment action C - (1.) Negligent Hiring/Retention (2.) Harassment
Why is it hard to win Malpractice Lawsuits
E - One of the hardest factors the client will have to show is that a competent attorney would have prevailed in the underlying case. E - Better to just discuss problems as they arise / fire attorney C - client must establish several factors in order to prevail.
What's the difference between general and limited partners?
E - Partners in a Limited Partnerships can have one of two classifications: E - Mainly suited to limited investment group arrangements C - (1.) General Partners have most of the management rights for business decisions, but they have unlimited personal liability. (2.) Limited Partners have only limited rights to participate in management, but their liability for business debts and obligations is limited to their investment in the business. (silent partners)
When do Principles begin Piercing the Corporate Veil
E - People tend to pick the corporation as a legal structure specifically to be able to protect themselves from liability for the business's actions and debts. E - Piercing the Corporate Veil - Principles (owners) in a corporation risk becoming liable for the debts and obligations of a corporation in certain circumstances Example: (1.) Commingling funds between personal and corporate accounts (2.) Conducting business in individual names rather than in the corporation's name E - principles include: officers, directors, and, sometimes shareholders E - E - Sometimes, courts will allow plaintiffs to receive compensation from corporate officers or directors for damages rather than limiting recovery to corporate resources. C - 1. Conducting business in a way that is not separate from the actions and assets of the principals (e.g. signing business contracts in her own name.) 2. Forming the corporation for a fraudulent purpose 3. Failing to follow corporate formalities
How do owners avoid personal liabilities
E - Personal Liability - Owners of the company can be sued in their personal names any time the business has a liability, and their personal assets can be used to pay that liability. E - C - They choose a business structure other than Sole-Proprietorship or Partnership.
What role does state law play in business law regulation
E - Power to modify the UCC C - Pass their own laws in other areas, such as imposing licensing requirements for certain professions and establishing rules for forming and running a legal business.
What does it mean if a company is registered as domestic/foreign
E - Registered Agent = a person or organization that has been appointed to receive legal notices, tax documents, and other government notices on behalf of a business. E - States generally require that corporations, limited liability companies (LLCs), and certain other business entities name a registered agent with a physical address in their formation documents. C - Foreign means the business was formed in a state outside the of the Business Corporation's (registered agent's) state
What are the attributes of Regular Business Corporations
E - Regular (For Profit) Business Corporations provide their owners/investors (called Shareholders or Stockholders) protection from personal liability for the debts and obligations of the business. • often identified by the words Inc. or Corp. at the end of the business organization name. E - Shareholders only have limited rights to participate in management decisions E - Board of directs are responsible for managing the corporation's business activities (hire supervising officers) C - Protect shareholders from personal liability by hiring directors to represent their interests.
What filing is required for Partnerships?
E - Requires appropriate form to create C - Created by filing Certificate of Limited Partnership with the appropriate state agency
What is a vicarious Liability
E - Respondeat Superior - a doctrine in tort law that makes a master liable for the wrong of a servant E - Anytime the employee does something that violates a tort when working for the employer C - When the employer incurs a liability from an employee's action that results in a torts.
What's the difference between detour and frolic
E - Respondent Superior - a doctrine in tort law that makes a master liable for the wrong of a servant E - A detour is a deviation from explicit instructions, but so related to the original instructions that the employer will still be held liable. E - A frolic is when the employee acts in his or her own capacity rather than at the instruction of an employer. C - An employee that causes a job-related accident vs an employee who causes an accident while on the job that is unrelated to his or her employment.
What might you and your lawyer discuss in fee arrangements
E - Sets out the fees, as well as the terms of the lawyer-client relationship. The agreement should clearly explain how the lawyer's fees will be paid, who will work on the matter, and if you are involved in a lawsuit, how the court costs will be paid C - (1.) Type of Fee Arrangement (2.) Type of Permissible Costs (3.) Estimated Fees and Costs (4.) Frequency and Detail (5.) Basic Charges (6.) Control
How do lawyers differ with firm structure
E - Small (boutique) firms employ between two and 10 lawyers. E - Multinational firms employ thousands E - The type of firm you choose will depend on the needs of your case. C - # of lawyers on staff increases with the firm's size. Small firms usually differ in specialization, larger firms cover more specialties.
What does an enforced policy need to contain to protect the employer from harassment liability
E - Small businesses can avoid the liability less formally E - C - 1. a written procedure for making complaints. 2. Business must also conduct prompt, thorough, and impartial investigations into any complaint that arises, and undertake swift action to "effectively prevent and correct harassment."
How is business law different from commercial law
E - So many overlapping issues that most attorneys who practice one will also have expertise in the other. E- Business law is primarily governed by state and federal law E - Commercial lawyers use the UCC C - 1. Commercial lawyers - focus on the sale and distribution of goods (financing of certain transactions.) 2. Business lawyers focus on forming of a company, mergers and acquisitions, shareholder rights, and property issues such as leasing office or warehouse space.
What are the different types of business entities
E - Sole Proprietorship - an individual decides to conduct business simply by doing business as a private person E - General Partnership - more than one person or other business entity joins together to conduct business (with the goal of making profits) but without formally creating another type of business entity E - Most businesses are LPs, LLPs, LLCs, and corporations E - Most businesses are conducted under Doing Business As ("D/B/A") or under a Fictitious Name • Example - Enterprise Holdings Inc operates under a fictious name Rent-a-car operating company C - Sole Pro, partnerships, LPs, LLPs, LLCs, and corporations
What's the commerce clause
E - The "Dormant" Commerce Clause ultimately means that because Congress has been given power over interstate commerce, states cannot discriminate against interstate commerce nor can they unduly burden interstate commerce, even in the absence of federal legislation regulating the activity. • E - Most federal laws only govern larger employers, but states typically have laws that similarly regulate even smaller businesses. C - a clause in Article I, Section 8 of the U.S. Constitution that empowers Congress to regulate interstate commerce and commerce with foreign countries and that forms the constitutional basis for much federal regulation
If your business plans to raise money from the public, which form of business organization would be best
E - The LLC structure starts lacking when the number of investors and owners increases. E - At some point, the investors will want to have some sort of tangible ownership right in the business, which is where stock certificates come in. E - You can only issue stocks if you have organized your business as a corporation C - Corporation
Who does the personal injury lawyer usually represent
E - The plaintiff side brings lawsuits against businesses and individuals on behalf of the injured party. C - The plaintiff (defendant)
Which organizations get Tax-Exempt Status
E - They avoid federal income tax and can accept charitable donations C - Classification is given by IRS
What is a Breach in Fiduciary Duty
E - Tort - a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability or duty to pay damages. E - Business Tort - is when a tort occurs within a business relationship. E - Breach - simply a failure to perform an obligation created by a promise, duty, ,or law without excuse or justification C - When an agent (fiduciary) fails to fulfill their duties to the principal, they have committed a Business Tort
Which profit-earning companies receive the nonprofit classification
E - all other features of decentralized ownerships like corporations (BoD) E - Nonprofits don't have shareholders and cannot issue stock. E - Not necessarily tax-exempt C - Permitted to earn profits but can't distribute them the shareholders; Profits are reinvested in the business or related activities
How is the employee the agent in an employee/employer relationship?
E - employer also assumes responsibilities for many of the employee's actions • Being bound to contracts that the agent enters into on behalf of the employer (so long as the contract was within the agent's power, which is called Authority) • Being liable to third parties who are harmed by the agent's torts. E - Employee has fiduciary duties to the employer C - In the employer-employee relationship, the employer is the person or company that hires others to work in return for salary, wages, or other forms of compensation and has control over the employee's physical conduct. (a form of agent-principle relationship)
Which businesses are easiest to form
E - its hard to figure out what type of a business a business is classified as because many do business under a fictious name different from what theyre registered as E - LLCs, LLPs, LPs. and Corps require forms/certifications to create C -Easiest to form are the ones that are formed by simply doing business (Sole Pro and partnership)
What's the best feature of an LLC
E - operate with limited liability for their owners without having to have totally decentralized management like corporations. E- You can run them a lot more like a partnership without having to have sort of this formality in the way you operate. ^^^ Formality --> Managers have a fiduciary duty to the members? C - No formalities + partnership management = Less risk of piercing the corporate veil.
Do only attorney's under hourly contracts get reimbursements
E- Even if a lawyer takes your case on a contingency fee basis (like the personal injury example), you still have to pay litigation costs. Example - include such things as fees for filing papers in court, court reporters, expert witnesses, private investigators, process servers or stenographers, copying costs, travel expenses, and messenger fees. E - If you win your case, the judge will usually order your adversary to pay you back for these costs. C - A lawyer in a contingency fee case might agree to front costs and get reimbursed if the client wins. If you win the case, the lawyer's fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money, but you will not be required to pay your attorney for the work done on the case.
What is a lawyer
E- Lawyer and attorney are interchangeable E- Three years of schooling + bar exam C - Lawyers have completed legal training (usually through receiving a Juris Doctorate degree from a law school).
What is Lawyer Malpractice
E- Malpractice is a word used to generally describe the liability that a professional may have for failing to fulfill their responsibilities to a client. C - Negligence, breach of contract, and breach of fiduciary duty.
What are the common areas of practice
E- Most important for this class are: (1.) Business (Corporate) and Commercial (2.)Personal Injury (3.) Employment C - (1.) Criminal (2.) Personal Injury (3.) Tax (4.) Family and (5.) Employment
What do Employment Lawyers do
E- Seemingly basic employment issues require the assistance of attorneys who are well-versed in employment laws. C - Some corporate attorneys cover employment matters but areas are more complex, u want a lawyer specialized in employment.
What's the difference between Civil and Criminal Law
E- employment, corporate, and personal injury lawyers are civil E- Most of the topics we deal with in this class involve Civil Law Example of Criminal Law- Department of Justice investigating apple C - Civil law cases involve private companies and private dispute; Criminal cases involve white-collared crime.
What issues are covered under family law
E- lawyer's are especially important to consider for prenuptial agreements and divorces involving minor children C - Domestic issues including marriage, divorce, adoption, paternity, child custody and support, and reproductive rights.
What does a fiduciary relationship need to be enforceable
Example of statutes fiduciary relationship: The duty of board members to represent the interests of the shareholders. C - Must have been created either under the law (statutes, legal proceedings, or contracts) or through the factual circumstances of the relationship (often based on established case law).
How is the "course of employment" defined under business law
Example- Employer is liable if the employee hits a pedestrian when driving on a business call. C - Acts that qualify as "under the course of employment are": 1. Acts authorized by the employer (the employees tasks/responsibilities) 2. Acts that are so closely related to an authorized act that an employer should be held responsible.
What is an Agency Relationship
Example: Business organization relationships (directors, officers, managers or members, etc.) Example: Attorney (agent) / Client (principal); Insurance broker (agent) / Client (principal); sometimes Accountant (agent) / Client (principal) Example: Employee (agent) / Employer (principal) E - The agent and principle relationship is only enforceable if there's a written agreement (Engagement Letter) C - A relationship where an Agent acts on behalf of a Principal and is required to fulfill fiduciary duties to that principal.
How are LLPs different from Professional Corporations if both have licensed professional
Examples: Real estate realtors, sales people E - Still protects owners from personal liabilities like regular corporations E - Has to operate in licensed professional's name C - LLPs are taxed like partnerships and Professional Corporations are taxed like Corps only tax that income once it's considered income to the shareholders, whether regardless of whether it gets paid out as a dividend or not.
Would the SEC grant the approval to form a professional accounting corporation
Which agency would a tax corporation need approval from?
How do you determine worker classification
• E - C - Consider Behavioral Control, Financial Control and Relationship of the Parties.
What are the employee rights (5) under employment law
• E - C - Employee rights: 1. Right to privacy (may be limited where e-mail and Internet use is concerned) 2. Right to be free from discrimination and harassment of all types; 3. Right to a safe workplace free of dangerous conditions, toxic substances, and other potential safety hazards; 4. Right to be free from retaliation for filing a claim or complaint against an employer (these are sometimes called "whistleblower" rights); 5. Right to fair wages for work performed.
What are some other federal discrimination laws other than Title VII
• E - ADA Prohibits discrimination against a person with a qualified disability (or someone who is perceived as having a disability). o Provides that if an individual with a disability can perform essential functions with or without Reasonable Accommodation, that person cannot be discriminated against on the basis of their disability. • E - Age Discrimination in Employment Act - Prohibits discrimination in employment on the basis of age for those aged 40 and over. • E - Fair Labor and Standards Act - Provides regulation as to the duration of work days and breaks an employer must provide. o Governs applicable salary and overtime requirements set out by the federal government. • E - The government has become very aggressive at pursuing employers who attempt to improperly classify an employee as an Exempt Employee in order to simply avoid paying overtime. • E - Family and Medical Leave Act - Provides that employers must allow employees to take up to a 12-week leave of absence for qualified medical purposes. C - (1.) Americans with Disabilities Act, (2.) Age Discrimination in Employment Act, (3.) Fair Labor and Standards Act, (4.) Family and Medical Leave Act
What's the difference between an Employee and an Independent Contractor
• E - Another way that employers often try to minimize overtime obligations and other benefits that would ordinarily be payable to an employee is to engage a worker to provide services as an Independent Contractor rather than an employee. • E - In many instances, discrimination laws will not apply to workers hired as independent contractors. • E - Tax implications: Businesses normally do not have to withhold or pay any taxes on payments to independent contractors. • C - Businesses will generally not be vicariously liable for the torts of independent contractors. Also don't have to pay taxes for them since the independent contractor pays self employment taxes.
When can an Independent Contractor vs Employee Label qualify as a Improper Classification
• E - Employers don't simply get to label a worker as either an employee or an independent contractor. • Example: (Employer control over a relationship) instructing the worker on "how" to complete the work • Example: If the worker has to supply their own equipment and cover their own costs and expenses, they have control over the financial impact of relationship. • E - Written contracts which describe the relationship the parties intend to create. o Independent contractors usually don't receive benefits and don't work indefinitely C - The law requires the relationship between the employer and worker to be properly classified based upon certain characteristics of the relationship 1. how much control the employer has over the worker's behavior 2. If the worker primarily controls the financial impact of the relationship on the worker 3. The type of relationship between the employer and independent contractor Lab activity gets into Missouri specific governing bodies that forms need to be submitted to
How is sexual harassment treated under Title VII
• E - Gender is a protected trait under Title VII C - Unwelcome sexual conduct in the workplace is considered a violation of the Civil Rights Act if: 1. An employment decision is dependent on submission to conduct included within the definition ("quid pro quo" sexual harassment); or 2. The action has the purpose or effect of creating an intimidating, hostile/offensive work environment.
What financial incentives come from classification of Independent Contractor vs Employee
• E - The IRS loses out on the employer's contribution toward tax obligations - employers don't have to pay these for independent contractors. • E - State run unemployment tax programs lose out on the employer's payment of unemployment taxes - employers don't have to pay these for independent contractors. C - Classification of a worker as an independent contractor also generally saves a business money, but the worker loses several benefits and the government loses out on money that it is only able to collect on a business's employees
What's prohibited conduct under the Title VII
• E - The discrimination can be from (direct) Disparate Treatment or (indirect) Disparate Impact. C - Discrimination under Title VII (and other related discrimination laws) occurs when employment action (which includes hiring, firing, promotion, demotion, disciplinary action, work schedule, pay rate, job assignment, etc.) is affected by a protected trait.
What are the employer responsibilities under employment law
• E - The employer's legal obligations do not only pertain to hired employees, but extend to job applicants as well. • Example: a prospective employer cannot ask a job applicant certain family-related questions during the hiring process. C - Employers have an obligation to follow federal and state employment and labor laws. (including those pertaining to discrimination, fair pay, employee privacy, and safety in the workplace)
What's Disparate Impact
• E - a large number of today's employment discrimination cases are based upon the disparate impact. C - Disparate impact occurs when facially neutral policies have a disproportionate impact on those members of a protected category
What are the differences in how employment law is created and enforced under state and federal law
• E - employment law involves legal issues as diverse as discrimination, wrongful termination, wages and taxation, and workplace safety. • E - federal and state laws govern the rights and obligations of employers and their employees. • E - state contract law alone may dictate the rights and duties of both parties. C - 1. Federal law protects from discrimination 2.
What legislation prohibits employers from discriminating against employees on the basis of race, color, religion, gender/sex, or national origin
• Example: The U.S. Supreme Court (in June of 2020) interpreted the Civil Rights Act to provide protection for gay and transgender workers. • E - State laws under the act are typically called a Human Rights Laws. C - Title VII of the Civil Rights Act (a set of federal statutes)
