218 Ch. 16

drug testing with public employers

not allowed because the 4th amendment prohibits unreasonable searches and seizures. Drug testing is upheld in courts if use may threaten public safety or when there is reasonable basis to suspect an employee for using. Testing of public transportation workers is allowed by statute

employer-independent contractor relationships

o Independent contractor: One who works for, and receives payment from, an employer but whose working conditions and methods are not controlled by the employer. An independent contractor is not an employee but may be an agent.

liability in agency relationships

liability held in contracts, authorized acts, unauthorized acts, agent's intentional torts, independent contractor's torts, agent's crimes

right-to-work laws

make it illegal for union membership to be required for continued employment in any establishment.

accounting duty of agents

Unless an agent and a principal agree otherwise, the agent has the duty to keep and make available to the principal an account of all property and funds received and paid out on behalf of the principal. This includes gifts from third parties in connection with the agency.

undisclosed (liability for contracts in agency relationships)

- a principal whose identity is totally unknown by the third party, and the third party has no knowledge that the agent is acting in an agency capacity at the time the contract is made

drug testing with private employers

4th amendment does not apply, governed by state law. Permissibility of a private employee's drug test is based on whether the testing was reasonable - random drug tests and "zero-tolerance" policies have been held to be reasonable Background checks are required for all federal workers, including privately contracted employees

respondeat superior

A doctrine under which a principal or an employer is held liable for the wrongful acts committed (harm inflicted) by agents or employees while acting within the course and scope of their agency or employment. - Imposes vicarious (indirect) liability on the employer when the tort is committed under the employee's scope of employment

ratification

A party's act of accepting or giving legal force to a contract or other obligation entered into by another that previously was not enforceable. Involves a question of intent, and intent can be expressed by either words or conduct

2 requirements for workers compensation benefits

Existence of an employment relationship An accidental injury that occurred on the job or in the course of employment, regardless of fault

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. Usually comes into existence through a principal's pattern of conduct over time - If the principal's representations cause the third party to change their position, then the principal may be estopped (prevented) from denying that the agent had authority

employer-employee relationships

Employee: one whose physical conduct is controlled, or subject to control, by the employer. - Employment laws (state and federal) apply (unlike contractor relationships)

When determining whether a worker is an employee or an independent contractor, the court asks these questions:

How much control can the employer exercise over the details of the work? If an employer can exercise considerable control over the details of the work, this would indicate employee status - Strongest factor in court Is the worker engaged in an occupation or business distinct from that of the employer? If yes, this means independent contractor status - 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 means employee Does the employer supply the tools at the place of work? If yes, employee status For how long is person employed? If for a long time, then employee What is the method of payment - by time period or at the completion of the job? Payment by time period = employee What degree of skill is required of the worker? If little, then employee

workers' compensation laws

State statutes that establish an administrative process for compensating workers for injuries that arise in the course of their employment, regardless of fault. Most statutes are similar, no state covers all employees (typically, domestic workers, agricultural workers, temporary employees, and employees of common carriers (public transportation) are excluded - but minors are covered). An injured employee must notify the employer within 30 days, file within 70 days to 2 years, and cannot sue once accepting benefits (unless the injury was intentional by the employer)

FUTA eligibility

To be eligible ... must be willing and able to work, not have been fired for misconduct, not have voluntarily left their job, must be actively seeking employment to continue benefits - New temporary measure that allows some jobless persons to keep benefits while pursuing education

violations of electronic monitoring

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. If the mode of communication is provided by the employer, the court will say the employee did not have reasonable expectation of privacy. If employees are not informed that certain communications are being monitored, however, the employer may be held liable for invading their privacy.

formation of agency by ratification

a person who is in fact not an agent may make a contract on behalf of another (principal). If the principal affirms that contract by word or by action, the agency relationship is created by ratification

disclosed (liability for contracts in agency relationships)

a principal whose identity is known by the third party at the time the contract is made by the agent

partially disclosed (liability for contracts in agency relationships)

a principal whose identity is not known by the third party, but the third party knows that the agent is or may be acting for a principal at the time the contract is made.

agency

a relationship between two parties in which one (agent) agrees to represent or act for the other (principal) - Fiduciary relationship - involves trust and confidence - Principle can control the agents conduct - The agent will act on behalf and instead of the principal in negotiating and transacting business with third persons - Ex: between employers and employees

liability for agent's crimes (in agency relationships)

agent is liabile for his or her crimes. A principal/employer is not liable, even if the crime is within the scope of authority or employment

obedience duty of agents

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 (this can change during emergencies)

notification duty of agents

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; duty to inform

liability for independent contractor's torts (in agency relationships)

an employer is generally not liable for physical harm caused to a third person by the negligent act of an independent contractor in the performance of a contract because the employer does not have the right to control the details of an independent contractor's performance exceptions: when unusually hazardous activities are involved

agent's authority

can be actual (express or implied) or apparent. If an agent contracts outside the scope if his/her authority, the principal may still become liable by ratifying the contract

formation of agencies

can be created for any legal purpose (if illegal purpose == unenforceable), agency relationships are normally consensual, and do not need to be in writing and consideration is not required. A person must have contractual capacity to be a principal. Generally, an agency relationship can arise in four ways... by agreement of the parties, by ratification, by estoppel, or by operation of law

formation of agency by agreement of the parties

can take the form of an express written contract, be created by an oral agreement, or implied by conduct

Federal Unemployment Tax Act (FUTA)

created a state-administered system that provides unemployment compensation o eligible individuals who have lost their jobs; require employers that fall under the provisions of the act to pay unemployment taxes at regular intervals, the proceeds from these taxes are then paid out to qualified unemployed workers

National Labor Relations Board (NLRB)

created by the NLRA to oversee union elections and to prevent employers from engaging in unfair and illegal union activities and unfair labor practices. Has the authority to investigate employees' charges of unfair labor practices and to file complaints against employers in response to these charges, if violations are found the NLRB can issue a cease-and-desist order Good faith bargaining - Bargaining over certain subjects is mandatory, and a party's refusal to bargain over these subjects is an unfair labor practice that can be reported to the NLRB.

express authority

declared in clear, direct, and definite terms; can be given orally or in writing equal dignity rule

liability for contracts (in agency relationships)

depends on how the principal is classified (as disclosed, partially disclosed, or undisclosed) and on whether the actions of the agent were authorized or unauthorized.

union shop

does not require membership as a prerequisite for employment but can, and usually does, require that workers join the union after a specified amount of time on the job.

loyalty duty of agents

duty to act solely for the benefit of his or her principal and not in the interest of the agent or a third party. The agent's loyalty must be undivided, the agent's action must be strictly for the benefit of the principal and must not result in any secret profit for the agent - Any information or knowledge acquired throughout he agency relationship is considered confidential, it would be a breach of loyalty to disclose such information either during the agency relationship or after its termination

electronic monitoring

employers can review employees' email, blogs, messages, social media, smartphone, internet use; can record employees at work, record and listen to phone conversations, read texts and social media posts - Privacy protection under tort law, state and federal statutes may limit an employer's conduct in certain respects - Private employers can use filtering software to block access to certain web sites. Government employers cannot because of the 1st amendment's protection of free speech

hot-cargo agreements

employers voluntarily agree with unions not to handle, use, or deal in goods produced by nonunion employees working for other employers.

Labor-Management Reporting and Disclosure Act (LMRDA)

established an employee bill of rights and reporting requirements for union activities. It strictly regulates unions' internal business procedures (union elections), outlaws hot-cargo agreements, holds union officers to a high standard of responsibility and ethical conduct in administering the affairs of their union hot-cargo agreements

National Labor Relations Act (NLRA), 1935

established the rights of employees to engage in collective bargaining and to strike. Defined a number of unfair employer practices... - Interference with the efforts of employees to form, join, or assist labor organizations or to engage in concerted activities for mutual aid or protection. - An employer's domination of a labor organization or contribution of financial or other support to it. - Discrimination in the hiring or awarding of tenure to employees based on union affiliation. - Discrimination against employees for filing charges under the act or giving testimony under the act. - Refusal to bargain collectively with the duly designated representative of the employees.

medicare

federal government health-insurance program that is administered by the Social Security Administration for people sixty-five years of age and older and for some under the age of sixty-five who are disabled - Hospital costs, nonhospital medical costs, additional coverage options, and a prescription drug plan - Both the empmloyer and employee contribute, no cap on the amount of wages subject to its tax (tax rate is 2.9%) - For medicare and Social security together, the employer and employee each pay 7.65% (6.2 for SS + 1.45 for medicare) up to the maximum wage base of $117,000. Any income earned above is taxed at 2.9% Self-employed people pay both the employer and employee halves high-income earners are subject to an additional Medicare tax of 0.9 percent (for a total rate of 3.8 percent).

duties of agents

fiduciary relationship - so each party owes the other the duty to act with the utmost good faith. When one party to the agency relationship violates his or her duty to the other party, the remedies (monetary damages, termination of the agency relationship, injunction) available to the nonbreaching party arise out of contract and tort law

Labor unions (federal labor laws)

govern union-employer relations Norris-LaGuardia Act National Labor Relations Act (NLRA), 1935 National Labor Relations Board (NLRB) Labor-Management Relations Act (LMRA), 1947 Labor-Management Reporting and Disclosure Act (LMRDA)

liability for unauthorized acts (in agency relationships)

if an agent has no authority and contracts with a third party, the principal cannot be held liable on the contract (the agent is liable). A principal may be liable for ... giving improper instructions, authorizing the use of improper materials or tools, or establishing improper rules that resulted in the agent's committing a tort; and for an agent's misrepresentation made within the scope of the agent's authority respondeat superior scope of employment

child labor

oppressive child labor is prohibited by FLSA. Children under 14 are allowed to do certain types of work, such as delivering newspapers or working for their parents, working in the entertainment industry and (with some exceptions) agriculture. Children who are 14 or 15 are allowed to work, but not in hazardous conditions, and the hours and number of days per week are restricted. Between 16 and 18: the working times and hours are not restricted, but they cannot be employed in hazardous jobs or in jobs that are bad for health and well-being. Over 18: no restrictions

Family Medical Leave Act (FMLA), 1993

passed by congress to allow employees to take time off from work for family or medical reasons - Coverage and applicability: requires employers who have 50+ employees to provide up to twelve weeks of unpaid family or medical leave during any twelve-month period; covers private nad public (gov't) employees who have worked for their employers for at least 1 year. - Family leave - to care for a newborn baby or child recently placed for adoption or foster care - Medical leave - when the employee or the spouse, child or parent has a "serious health condition" requiring care - Up to 26 weeks of military caregiver leave within twelve-month period, and up to 12 weeks of qualifying exigency (emergency) leave to handle specified nonmedical emergencies when a spouse, parent, or child is in/called to active military duty - Healthcare coverage and position must be restored or matched upon the employee's return - Exception: the employer can avoid reinstating a key employee (an employee whose pay is in the top 10 percent of the firm's workforce)

Occupational Safety and Health Act, 1970

primary legislation protecting employees' health and safety; it imposes on employer a general duty to keep workplaces safe and prohibits employers from firing or discriminating against any employee who refuses to work when he or she believes a workplace is unsafe. Administered by occupational safety and health administration (OSHA), which has established specific safety standards for various industries that employers must follow - The act also requires that employers post certain notices in the workplace, perform prescribed record keeping, and submit specific reports.

Norris-LaGuardia Act

protects peaceful strikes, picketing and boycotts; restricts the power of federal courts to issue injunctions against unions engaged in peaceful strikes and established a national policy permitting employees to organize

social security act

provides old-age (retirement), survivors', and disability insurance (OASDI). both employers and employees must contribute under the Federal Insurance and Contributions Act (FICA) to help pay for benefits that will partially make up for the employees' loss of income on retirement - The basis for the employee's and the employer's contributions is the employee's annual wage base—the maximum amount of the employee's wages that are subject to the tax. The employer withholds the employee's FICA contribution from the employee's wages and ordinarily matches this contribution. - Retired workers can receive monthly payments from the Social Security Administration, benefits are fixed by statute but increase automatically with increases in the cost of living

Violations of FMLA

remedies ... damages to compensate an employee for lost benefits, denied compensation, and actual monetary losses up to an amount equivalent to the employee's wages for twelve weeks; job reinstatement; promotion (if it has been denied)

equal dignity rule (express authority)

requires that if the contract being executed is or must be in writing, then the agent's authority must also be in writing. Failure to comply, then the contract is voidable at the option of the principal Ex: power of attorney - a written legal document that authorizes another to act as one's agent or attorney in specified situations.

closed shop

requires union membership by its workers as a condition of employment.

lie detector tests

the Employee Polygraph Protection Act generally prohibits employers from requiring employees or job applicants to take lie-detector tests or suggesting or requesting that they do so. The act also restricts employers' ability to use or ask about the results of any lie-detector test or to take any negative employment action based on the results. - Federal, state, and local government employers, and certain security service firms, are exempt - Other employers can use polygraph tests when investigating losses attributable to theft (embezzlement and theft of trade secrets)

performance duty of agents

the agent's agreement to use reasonable diligence and skill in performing the work, implied. Usually expected to be "ordinary care" or expected of a reasonable person - If an agent has claimed to possess special skill, however, failure to exercise that degree of skill constitutes a breach of the agent's duty.

formation of agency by operation of law

the courts may find an agency relationship in the absence of a formal agreement in situations. Ex: in families when one spouse charges something to another spouse's account, the other spouse can have a legal duty to supply OR emergency situations

liability for authorized acts (in agency relationships)

the principal is obligated to perform a contract as long as the agent acts within the scope of his or her authority. The status of the principal determines is the agent is held liable - Disclosed or partially disclosed principal - If the principal is disclosed, an agent has no contractual liability for the nonperformance of the principal or the third party. If the principal is partially disclosed, in most states the agent is also treated as a party to the contract, and the third party can hold the agent liable for contractual nonperformance. - Undisclosed principal - the principal is bound to perform and the agent is also liable as a party to the contract. 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. Once the principal's identity, the third party can choose who (agent or principal) to hold liable

implied authority

to do what is reasonably necessary to carry out his or her express authority and accomplish the objectives of the agency; implied by custom or inferred from the position the agent occupies

Labor-Management Relations Act (LMRA), 1947

to forbid unfair union practices, like the closed shop. Union shop is still legal. It prohibited unions from refusing to bargain with employers, engaging in certain types of picketing and featherbedding. It allowed individual states to pass their own right-to-work laws (union shops are technically illegal in the 23 states with these laws) closed shop, union shop, right-to-work laws

liability for agent's intentional torts (in agency relationships)

under the doctrine of respondeat superior, the employer can be liable for an employee's intentional torts that are committed within the course and scope of employment, just as the employer is liable for negligence. An employer who knows that an employee has a tendency to commit tortious acts is held liable

formation of agency by estoppel

♣ the principal's actions create the appearance of an agency that does not in fact exist ♣ the deeds or statements of the principal that create an agency by estoppel. When a principal causes a third person to believe that another person is his or her agent, and the third person deals with the supposed agent, the principal is "estopped to deny" the agency relationship.

scope of employment

♣ travel and meals are usually not included (unless the person is a travelling salesman, etc.). factors: - Whether the employee's act was authorized by the employer - The time, place, and purpose of the act - Whether the act was one commonly performed by employees on behalf of their employers - The extent to which the employer's interest was advanced by the act - The extent to which the private interests of the employee were involved - Whether the employer furnished the means or instrumentality (truck or machine) by which the injury was inflicted - Whether the employer had reason to know that the employee would do the act in question and whether the employee had ever done it before - Whether the act involved the commission of a serious crime