LAW 3220 - Exam 4

Title IX

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Bringing a discrimination charge

- File with Equal Employment Opportunity Commission (EEOC) or similar state agency - Can be filed under federal or state law - Federal charges must be filed within 180 days of alleged event, encourages victims to come forward (state law often extends this to 300 days) - EEOC investigates - If EEOC finds merit, it can ask the parties to go to mediation - If the case doesn't settle, the EEOC issues an opinion, and the complaining party may then sue

Duties of agents

- Loyalty to principle (cannot have conflict of interest) - Obedience and performance - Reasonable care - Accounting - Notification

National Labor Relations Board (NLRB)

- Oversees the NLRA - Prosecutes unfair labor practice charges - Federal, state and municipal employees, and supervisors, managers, independent contractors and some agricultural workers are not covered

Students for Fair Admissions v. Harvard and UNC

- Overview: the Supreme Court revisited the constitutionality of affirmative action in higher education, particularly the question of whether institutions of higher education can still use race as a factor in admissions - Ruling: In June, the Court ruled that the use of affirmative action in admissions was unconstitutional, finding that the admissions programs could not be reconciled with the "guarantees of the Equal Protection Clause"

Employers must:

- Pay social security and workers' compensation taxes - Withhold federal and state income taxes - Pay sick and maternity/paternity leave, health insurance and other benefits - Pay minimum wage - Comply with OSHA safety regulations - Recognize and negotiate with unions

Substance abuse adversely affects:

- Safety - Productivity - Medical-insurance costs

Workers' compensation

- States have adopted workers' compensation laws - Employers must pay insurance premiums for injury and death benefits for employees - Workers' comp provides income and medical recovery regardless of the cause of the work-related injury (no-fault insurance) - Employers are immune from damage suits arising from on-the-job accidents (except where the employer intentionally created a dangerous condition)

Defenses to disparate treatment

- The employer has in place clear, effective policies and procedures that are consistently followed - The employer implemented good-faith efforts to prevent discrimination - The employer had legitimate, nondiscriminatory, clear and specific reasons for the action

Principles of legal conduct in business

- Treat people fairly and with respect - Have fair, consistently applied policies and procedures

Factors determining scope of employment:

- Whether the act was of the same general nature as those authorized by the principal or employer - Whether the agent or employee was authorized to be in the area at the time the act occurred - Whether the agent or employee was serving the principal's or employer's interest

California Prop 22

Allowed certain app-based, gig workers to be classified as independent contractors (passed November 2020) - In August 2021, a California judge ruled that the proposition was unconstitutional (i.e., still open question in California and other jurisdictions if Uber drivers are contractors or employees) - In October 2022 the Labor Department published a proposed rule raising the bar for classifying workers as contractors, and looking, as primary factors, to: • Whether the company considers the worker's work to be an integral part of the business • The degree of permanence of the relationship between the company and the worker • The amount of skill required for the job

Landrum-Griffin Act (1959)

Also known as the Labor Management Reporting and Disclosure Act, this law aimed at protecting union members from possible wrongdoing on the part of their unions - Increased regulation of internal union affairs

Pregnancy Discrimination Act (PDA) of 1978

An amendment to Title VII that prohibits discrimination based on "pregnancy, childbirth, or related medical conditions."

Age Discrimination in Employment Act (ADEA)

Protects workers 40 and over from employment and workplace discrimination in hiring, firing, promotion, layoff, compensation, benefits, job assignments and training

Family and Medical Leave Act (FMLA)

Provides employees up to 12 weeks of unpaid, job-protected leave per year: 1. After childbirth or adoption (for mothers and fathers) 2. To care for a seriously ill child, spouse or parent 3. For an employee's own serious illness - Applies to private employers with 50 or more employees and to all governmental employers - Liability for violations can be imposed on managers as well as on the company

The Equal Pay Act (1963)

Requires that men and women be paid the same amount for doing the same job

Exceptions to at-will employment

Situations where an employee cannot be fired for certain reasons, like: - Refusing to commit an illegal act - Performing a public duty (e.g., jury duty or military service) - Exercising a public right, such as filing for workers' compensation - Making a whistleblower complaint (for public good, not for private gain)

Principal

Someone who authorizes another to act on their behalf - Liable for the actions of the agent

Disparate treatment

When employers impose different standards on the basis of a protected class, a violation may have occurred: - In such cases, the employee must prove that the employer intentionally discriminated - Employer must then present legitimate, nondiscriminatory, clear and specific reasons for the action - Employee must in turn show that the rationale offered is a pretext (an excuse) - If employees are punished for bringing a claim, they have a separate basis for suit for retaliation

Does promoting DE&I enhance business performance?

Yes, studies carried out by researchers and corporations find that diversity in the workforce and inclusion of different viewpoints in the workplace both contribute to higher productivity and performance

Pregnant Workers Fairness Act (PWFA)

requires covered employers to provide reasonable accommodations to a worker's known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship

Worker Adjustment and Retraining Notification Act (WARN)

requires employers with 100 or more employees to give advance notice of a plant closing or mass layoff (50 or more employees) - Notice must be given 60 days in advance to employees and local governments

Subagent

someone authorized by the principal to work for an agent - Owe duties to both the agent and the principal

General agent

someone authorized to execute all transactions connected to a certain business (or portion of a business) - Ex: general manager of an establishment

Special agent

someone authorized to represent the principal only for specific transactions, usually for a limited time - Ex: real estate agent

Universal agent

someone designated to do all acts

Agency by estoppel

the actions of the principal lead one to believe that the presumed agent had authority to act for the principal

Actual authority

the express (written or spoken) and implied powers of an agent

Vicarious liability

the principal or employer is liable whether the conduct was authorized or not, and whether the conduct was intentional or negligent, as long as the conduct was within the scope of the agency or employment

Collective bargaining

the process by which the employer and the union (on behalf of all employees in the bargaining unit) negotiate a labor contract setting forth the terms and conditions of employment for a set time - Entails administration of the labor contract as part of a continuous relationship - Employers and unions must bargain in good faith - Mandatory subjects: those that directly impact wages, hours or working conditions - Concerted activity: union strike or employer lockout (replacement workers)

Agency by operation of law

when the law imposes on a principal the consequence of an agency that was not otherwise accepted, usually in an emergency or other unusual situation

FTC proposed rule banning Noncompete Clauses

In January 2023, the Federal Trade Commission (FTC) proposed a broad rule to ban non-compete clauses in employment agreements - FTC considers that the clauses inhibit people from changing jobs, suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses - FTC estimates that the rule could increase wages by nearly $300 billion per year - Opponents argue that noncompete clauses have encouraged companies to promote workers and invest in training, and that non-compete clauses are important to protect trade secrets

National Labor Relations Act (NLRA)

U.S. act that protected and encouraged the growth of the union movement; established workers' rights to organize and bargain collectively with employers; aka "Wagner Act"

Creating an agency

- Agreement of the parties (oral or written, power of attorney) - Implied agency by ratification of the agent's activities by the principal - Agency by estoppel - Agency by operation of law

Disparate impact

- An employer can be held liable if its rules and practices have a discriminatory effect on a protected class of employees, even if the employer did not intend to discriminate or if the rule or practice appears neutral on its face - These cases are proven with statistics - These cases can be costly to lose because they involve a class of employees

Remedies to disparate treatment

- Back pay - Reinstatement (if illegally fired) - Front pay (if illegally fired) - Compensatory damages: emotional distress, medical costs, job-hunting costs, loss of reputation - Punitive damages: if the employer acted with malice or reckless disregard for protected rights - Attorneys' fees - Affirmative action

Termination of agency

- By agreement - When the purpose of the agency is fulfilled - When the principal or agent expires (dies or is incapacitated), or the subject matter of the agency is destroyed

Duties of principals

- Cooperate - Compensation - Reimbursement - Indemnification

Drug testing

- Employers may prohibit the possession, use or being under the influence of alcohol or drugs in the workplace - Drug testing cannot be imposed on union workers unless approved by the union in collective bargaining

Occupational Safety and Health Act (OSHA)

- Employers must provide a workplace "free from recognized hazards that may cause death or serious physical harm" - OSHA Administration inspectors conducts inspections via simple administrative warrants (without probable cause) - Can issue citations and fines - Standards also cover toxic substances (asbestos, industrial carcinogens, chemicals)

Benefits of agents

- Expertise (e.g., negotiation of contracts, navigate particular areas) - Resources (e.g., network connections)

Factors regarding employment status

- Extent of control over details of work - Whether the hired person is in a distinct occupation - Whether the kind of work requires supervision - Whether the work involves significant skill - Whether the employer provided tools or supplies - How long the work lasts - Whether compensation is by the job or by the hour - Whether the hired person is integrated into the employer's regular business or workforce (including office space and support, such as computer or phone equipment)

Actions to promote justice and equity at work

1. Ensure that board and executive positions include diverse people 2. Create formal and dedicated leadership positions to manage diversity and inclusion 3. Publish diversity reports about representation across the company 4. Establish corporate DE&I goals and integrate into job performance 5. Provide trainings and workshops; arrange educational and engaging activities - events, speakers, movies, articles 6. Encourage regular discussions by managers 7. Reinforce ownership at all levels across the organization 8. Ensure that diverse slates of candidates are considered for all hirings and promotions 9. Thoroughly investigate and make public all incidents 10. Conduct pay-equity audits 11. Diversify the supply chain 12. Participate in and support outside groups that advance diverse interests 13. Engage in community service 14. Ensure good HR practices and procedures (e.g., in considering people for promotions) 15. Enhance the pipeline of diverse talent (e.g., by reaching out to schools and organizations)

Employee motivation

1. Purpose: our research is solving an important problem and/or is part of a compelling bigger picture 2. Mastery: the opportunity to get really good at something 3. Autonomy: the ability to direct our lives

Employment at-will can be overcome if:

1. There is a contractual right to continued employment or for termination only for certain reasons or by certain procedures (by express or implied contract, including company policies and practices - see company handbooks) 2. A dismissal would violate a public policy

Employment at-will can be overcome if:

1. There is a contractual right to continued employment or for termination only for certain reasons or by certain procedures (by express or implied contract, including company policies and practices - see company handbooks) 2. A dismissal would violate a public policy (often embodied in statutes)

Classifications of agents

1. Universal 2. General 3. Special 4. Subagent

Personal actions to promote equity

1. Work on your cultural competence 2. Exude respect for people, regardless of their position or background 3. Take seriously all issues and concerns raised 4. Associate and network with people who are different from you 5. Celebrate differences 6. Respect others' styles, food, holidays 7. Make DE&I a regular topic of discussion; provide safe forums for difficult conversations 8. Participate in and support employee resource groups 9. Educate yourself (e.g., see Harvard Business Review Diversity feature) 10. Don't play favorites 11. Be sure to share information (as appropriate) 12. Be effective in meetings - listen to everyone; encourage challenges; don't dominate or condescend; don't "mansplain"; don't take credit for others' ideas

Prima facie case

A case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it

Tort liability for principals and agents

Agents and employees can create tort liability for principals and employers, if the tort occurred within the scope of engagement or employment (if the conduct occurs outside the scope, the agent or employee alone is liable) - Entities are typically not liable for torts committed by their independent contractors

Liability for contracts

Agents may enter into contracts on behalf of principals (principal is liable for contract)

Child labor laws

FLSA prohibits the employment of minors in nonagricultural occupations under the age of 14, restricts the hours and types of work that can be performed by minors under 16, and prohibits the employment of minors under the age of 18 in any hazardous occupation

Taft-Hartley Labor Act (1947)

Designed to protect the employer and equalize balance between unions and management - Changed federal policy away from encouraging unions to a more balanced approach - Returned some rights to management

Duties of agency parties

Duties to each other to act in good faith and to share information

Tort of negligent hiring

Holds employer liable for harm caused by employee's conduct when employer exposed members of the public to a potentially dangerous employee - Includes torts by employees NOT acting within scope of employment - Ex: Hiring an employee with background check demonstrating a criminal history, failing to check references, etc.

Title VII of the 1964 Civil Rights Act

Makes it illegal: 1. To refuse to hire, or to discharge, a person or discriminate with respect to compensation, terms, conditions or privileges of employment, or 2. To segregate or classify employees in any way which deprives a person of employment opportunities because of the person's race, color, religion, sex, national origin

Americans with Disabilities Act (ADA)

protects people with disabilities from discrimination in employment, and ensures reasonable access to public venues - Employers must make reasonable accommodations (including incurring modest expenses) - Prohibits employers from asking disability-related questions or requiring medical exams before a job is offered

Employment at will

Under American common law, employees are presumed to work "at will," meaning that employers are free to discharge the employees for any reason at any time, and employees are free to quit their jobs for any reason at any time - Employees can be dismissed for good cause, for no cause, or even for a morally wrong cause - Employees can sue for wrongful discharge or retaliatory discharge (torts)

Sexual Harassment: Hostile Environment

Occurs when unwelcome sexual conduct "has the purpose or effect of unreasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment - Could be: dirty jokes, offensive pictures, swearing, personal ridicule/insult

Goldman Sachs discrimination lawsuit

Overview: Initially filed in September 2010, the settlement covers about 2,800 female associates and vice presidents in Goldman's investment banking, investment management, and securities divisions. The plaintiffs claimed the bank discriminated against women when it came to pay, performance evaluations and promotions. Ruling: Goldman Sachs was ordered to pay $215 million.

Owen Diaz v. Tesla

Overview: Owen Diaz, who worked as a contract elevator operator at Tesla's factory in Fremont, Calif., from 2015 to 2016, said in his lawsuit that he and others were called the N-word by Tesla employees, and that employees drew racist and derogatory pictures that were left around the factory. Diaz said that he complained about the discriminatory treatment to Tesla, but that nothing was ever done to stop it. Ruling: A federal jury in San Francisco ordered Tesla to pay Diaz $137 million as a result of the racial discrimination he suffered at work.

Drug-Free Workplace Act (1988)

requires companies doing more than $100,000 in business with the federal government to certify (testing not required)

Affirmative action

Preferential treatment to members of protected classes is improper - If minority groups or women are underrepresented in a job category, it is legal for an employer to seek to increase participation - California law requiring diverse board members, 11 other states have passed or are considering board diversity minimum representation or reporting requirements - Nasdaq adopted a rule requiring listed companies to disclose board diversity statistics and to have at least two diverse directors (one female and minority) (or explain why not) - SEC Chair signals consideration of rules requiring workforce-diversity disclosure - Companies are measuring employees, management and board composition and establishing goals

Hiring legally

a person must present documents to show identity and authorization to work (e.g., Passport, Driver's license, School ID, Social Security card, Birth certificate) - I-9 Form: documents an employee's eligibility to work in the United States - South Carolina requires all employers to use E-Verify to confirm eligibility of non-citizens to work - Hiring unauthorized aliens can result in fines; discriminating against authorized persons can also result in penalties

Apparent authority

The appearance or the assumption of authority based on the actions, words, or deeds of the principal or because of circumstances the principal created

Omnibus Transportation Employee Testing Act

The federal law that requires drug (and alcohol) testing of employees in transportation-related occupations, including airline, railroad, trucking, and public transport workers

Defenses to disparate impact

The rules and practices: - are justified by business necessity, or - relate to a valid job requirement For example: seniority, education, experience, performance (merit), ability (strength, agility)

Sexual Harassment: Quid Pro Quo

This for that: offering or withholding something until sexual favors are performed - Example: "You won't get this promotion if you don't do xyz"

Speak Out Act (2022)

This law prohibits the use of confidentiality agreements (NDAs and non-disparagement clauses) that block victims of sexual harassment from speaking publicly about misconduct in the workplace - Reflects the federal government's latest attempt to curb sexual misconduct in the workplace

Pay transparency

To address pay inequities, a number of states have passed pay-transparency laws that communicate pay information and the extent to which employees are permitted to discuss pay with each other

Social media in the workplace

To minimize liability (including for defamation or infringement), companies may restrict unofficial company social-media endeavors, limit who can post to social media and blogs, and limit what can be posted (including links to others' content)

Genetic Information Nondiscrimination Act (GINA)

U.S act that prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance

Agent

a person who acts or does business for another - Acts for the benefit of the principal and is subject to the principal's direction and control - May bind the principal to contracts with third parties as long as the agent acts within the scope of authority granted by the principal

Minimum wage

a minimum price that an employer can pay a worker for an hour of labor (initiated in 1938) - Last set at $7.25 in 2009 - 45 states have established a state minimum wage; 33 of those are above the federal minimum (SC follows the federal rate) - Cities and counties have adopted minimum wages

Non-Disclosure Agreements (NDA) and Non-Disparagement Clauses

a legally binding contract that establishes a confidential relationship; the party or parties signing the agreement agree that sensitive information they may obtain will not be made available to others - A number of states are banning them from employment contracts and settlements (want employees to be able to openly discuss hostile work environments)

Employee Retirement Income Security Act (ERISA)

act that established uniform minimum standards to ensure that employee benefit and pension plans are set up and maintained in a fair and financially sound manner; guarantees retirement-plan benefits - If a plan collapses when an employer goes bankrupt, the federally chartered Pension Benefit Guaranty Corporation steps in to provide pension benefits

Implied agency

an agency that occurs when a principal and an agent do not expressly create an agency, but it is inferred from the conduct of the parties

Authority

an agent's ability to transact business for a principal depends on the scope of authority granted

Employer-Employee relationship

an employee is under the direct control of the employer - Employers are liable for torts committed by employees within the scope of their employment

Exculpatory clauses

an employer insists that employees agree not to sue the employer for any tort action that occurs at the workplace

Employer-Independent Contractor relationship

an independent contractor contracts with another to do something but is not controlled by the other with respect to physical conduct in the performance of the undertaking - Employers are NOT liable for torts committed by contractors

Packers Sanitation Services (PSSI) lawsuit

paid a $1.5 million fine to the Labor Department for violating child labor laws; Department of Labor claims it had at least 102 kids, some as young as 13 years old, cleaning 13 meatpacking plants during overnight shifts

Indemnification

principal must compensate an agent for liability incurred in the performance of their duties

Uniformed Services Employment and Reemployment Rights Act (USERRA)

protects against discrimination based on military service

Tailboard briefing

communicate any existing or potential hazards to workers before a job begins or if hazards or potential hazards are discovered while working

Agency

created when a person or company - the agent - agrees to act for another person or company - the principal - who provides the agent with authority to act

Norris-LaGuardia Act (1932)

declared that every worker has full freedom of association, organization, and designation of representatives to negotiate terms and conditions of employment

Paid leave

employee is paid while he or she is not working; for example, vacation or sick days - Twelve states and the District of Columbia have enacted paid family leave (PFL) laws - Most of these state programs provide parental and family caregiving leave as well as temporary disability insurance to cover paid personal medical leave - Three states have enacted paid leave for any reason

Unionization

employees work together to make a difference in the workplace - Authorization cards signed by 30% or more of workers = triggers an election - Union certified to be the exclusive collective bargaining agent if it gets more than 50% of the vote - Workers who join the union must pay union dues - Workers who do not join the union pay agency fees (agency shop) - Even those workers who voted against the union are bound by the recognition of the union as the exclusive bargaining agent for all employees - States are permitted to pass Right-to-Work laws to prohibit agency shops

Noncompete Clauses

employers ask employees to agree not to leave and take a position with a competitor for a certain time (usually 1-3 years) - In many states, courts will uphold if reasonable in time and coverage; other states prohibit such clauses - Up to 60 million workers are subject to noncompete agreements

Anti-raiding covenants

employers require employees to agree that they will not recruit fellow employees for another company when they leave - Some courts hold them unenforceable as a restraint of trade; other courts enforce them if limited in time and coverage

Wagner Act (1935)

ensure workers the right to organize, form unions and bargain collectively; created the NLRB; aka "National Labor Relations Act (NLRA)"

Pay equity

equal pay for equal work and equal opportunity for promotions and to hold equivalent jobs - Today, women earn 82% of what men do, despite women now having higher educational attainment than men - Latina women and black women earn 57% and 67% of what men do, respectively

Federal Fair Labor Standards Act (FLSA)

hourly workers have the right to earn 1.5 times their regular wage when they work more than 40 hours in a week (agricultural workers are excluded)

Antitrust laws

laws that encourage competition in the marketplace

Anti-discrimination laws

make it illegal to discriminate (show prejudice) against individuals because of their gender, race (ethnicity), religion, disability, marital status or age - Many states and cities have their own laws, which may protect additional classes of employees and prohibit, for example, discrimination based on sexual orientation - These laws cover most of the employment process: hiring, promotion, transfers, discipline, pay, benefits, opportunities and termination

Occupational licensing

many occupations are subject to state and local licensing requirements; one third of all jobs in the U.S. require a license (e.g., CPA, nurses, vets, real estate agents, etc.) - Usually entails demonstrating competency (and sometimes safety) and payment of an entry fee and often ongoing fees - Purpose is to protect consumers and the public - Often promoted by those in the field to reduce supply, so higher wages can be commanded

Disclosed principals

one whose identity is known by the third party at the time the contract is entered into with the agent - Are liable to the third party

Undisclosed principals

one whose identity is unknown by the third party, and where the third party has no knowledge that the agent is acting for another - Are not liable to the third party - The agent is liable for the principal's nonperformance (unless the agent had authority to make the contract, in which case the agent must be indemnified by the principal)