BLA Quiz 2 and Exam 2

routine maintenance vs. alterations

-paint / new roof are routine maintenance -changing the carpet is an alteration

Physical or mental impairment

-physical impairment -- cancer -mental impairment -- PTSD

Substantially limits one or more

1. (2008) Congress wants broad coverage - told courts they were making it too harsh --> MADE DIABETES A DISABILITY 2. If you have an employee that takes medication, consider whether they are substantially limited outside of taking that medication

define tenancy from year to year

1. Any tenancy when we know when it starts, we know how long the rolling periods are, we just don't know how many times it's going to roll onto the next one 2. Can be weekly or monthly basis also 3. Have to provide notice to terminate the lease because there is no defined end date

IRS Test - 20 Factor Test (original) - now divided into 3 key factors

1. Behavioral 2. Financial 3. Type of relationship

Officers in a corporation

1. CEO, VP, Secretary, Treasurer, etc. 2. Involved in the day-to-day operations of the company and making decisions 3. Tasked with acting in the best interest of the corporations

3 elements for Prima Facie Case of Discrimination Under the ADA (in order to file suit)

1. Claimant is disabled within the meaning of the ADA 2. Claimant is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and 3. Claimant has suffered an adverse employment decision as a result of discrimination

Business entities

1. Corporation 2. Sole proprietorship 3. General partnership 4. LLC (limited liability corporation) 5. Limited partnership 6. Limited liability partnership

Piercing Corporate Veil

1. Court disregards corporate entities and holds shareholders personally liable for the corporate debts and obligations --If you don't treat/respect your business as a corporation, the courts will not treat/respect the business as a corporation

Corporate Personnel

1. Directors 2. Officers 3. Shareholders

Two Theories of Discrimination

1. Disparate Treatment 2. Disparate Impact

Example: Judy is 4'11" and applies for a job as a flight attendant at USA airlines. USA airlines has a requirement that all flight attendants be at least 5' tall. Judy's application is rejected because she does not meet the height requirement. (Height requirement is not a business necessity). Judy believes that she is being discriminated against on the basis of her national origin. Which theory of discrimination should Judy pursue? 1. Disparate impact 2. Disparate treatment

1. Disparate impact --Seems fair from the outside - not discriminating against race, etc. but when put into effect it is discriminatory

Classifications of Corporations

1. Domestic Corporations 2. Foreign Corporations 3. Alien Corporations

Major life activities examples

1. Eating 2. Thinking 3. Sleeping 4. Seeing 5. Concentrating 6. Breathing 7. Walking 8. Major bodily systems function (ex: cardiovascular system, immune system, digestive system, etc.)

Adverse employment decision examples:

1. Employee gets fired under the basis of their disability 2. Employee not receiving the same opportunities as others (promotion, projects, etc.) 3. Employee is qualified for the job but does not get hired on the basis of their disability

example of employee vs. independent contractor

1. Example: have a truck, trailer, lawn mower and lawn equipment - go out in summer and cut grass and get paid - run own business and independent contractor 2. Example: people who come to UNCW to work, drive in UNCW trucks, UNCW provides lawn equipment - employee

general partner vs. limited partner

1. General partner: has unlimited personal liability - running the business, making day-to-day decisions, bank account, etc. 2. Limited partner: Not participating and cannot participate in day-to-day management of business -"silent investor": puts money in and steps away -Has limited personal liability - losses are capped Liability is limited to the amount of my investment

define landlords duty to protect the tenant from concealed defects of which landlord is aware

1. If there is a concealed defect and you know about it, you have the responsibility to protect the tenant in that instant and can be held liable --Ex: if railing is not secure and landlord knows about it - it is their job to fix it or it is their responsibility if someone gets injured

Shareholders in a corporation

1. If we purchase one share, we have become a small owner of the overall corporation → corporations are owned by their shareholders 2. Have limited liability - if invest $100 dollars, can only lose $100

3 questions to ask regarding the doctrine of respondeat superior

1. Is the employee required to be on premises at that time? 2. Is the employee furthering the employer's business? 3. Did the tort occur while performing his or her duties for the employer?

Economic Dependence Test: 6 key questions

1. Is the work a key part of the employer's business? 2. Does the worker's managerial skill affect the worker's opportunity for profit and loss? 3. How does the worker's relative investment compare to the employer's investment? 4. Does the work performed require special skill? 5. Is the relationship between the worker and the employer permanent or indefinite? 6. What is the nature and degree of the employer's control?

define injunction

court order telling someone to stop it or not stop it (telling business to get a ramp)

Family and Medical Leave Act of 1993

-"Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave." -Employer must display a FMLA poster, determine employee eligibility, provide eligible rights and responsibilities notice, maintain health benefits, maintain records

Jeff is a runner for a law firm. At the courthouse, he stops to say hello to his friend in the register of deed's office before delivering a document to the clerk of court's office. While in the office, he accidentally hits a patron with the door. Is this a frolic? A detour? Is this within the scope of employment? Is the law firm liable?

-A detour - on your way to be where you were supposed to be -Law firm can be held liable - he was on employer business and simply was saying hello

Define Limited liability partnership

-All partners have limited liability (suit can only get assets of the company) -makes sense for certain licensed professionals

define alien corporation

-Corporation that is incorporated under the laws of another country, but operating in the United States -Ex: corporation that is created in Canada and following laws of Canada, but operating in NC

Worker Adjustment and Retraining Notification Act of 1989 ("WARN")

-Implemented to provide a sense of security to employees and their families. Required employees that have 100 or more full time employees provide 60 days notice if closing place. -Requires employers that have 100+ employees to give 60 days notice. If they don't give 60 days notice, employee can receive back pay and benefits for period of valuation

define foreign corporation

-Incorporates under the laws of one state but operating in another state -Ex: corporation created in NC but following corporate laws of Delaware

Advantages of corporations:

1. It's ability to raise capital 2. Limited liability --Difference between personal and business 3. Perpetual existence

Define LLC (Limited Liability Company)

1. Limited personal liability -- starting business but there is a separation between personal and business 2. More relaxed than a corporation 3. With taxes, have an option to file taxes separately from personal tax report 4. Protects general partner and limited partner the same - both have LIMITED personal liability

Directors in a corporation

1. Make overall, big business decisions for the corporations - have meetings, etc. 2. Can either be inside director or outside director 3. Supposed to act in the best interest of the company - very high level decisions

define Regarded as having such an impairment

If someone is discriminated against for an assumption or basis of possibly having an impairment - it is a violation of the ADA act

3 scenarios from EEOC:

1. No evidence of discrimination but sue if you want to 2. We do find evidence of discrimination - sue if you want to 3. We do find evidence of discrimination - sue if you want to and our attorneys will represent you

define outside director

Somebody who has business expertise and brings their expertise for overall big picture ideas for the company

define tenancy at sufferance

1. Occurs when there is a tenant with a legal right to be at a particular house and the legal right ends but the tenant is still there --We have a tenant with no legal right to be there but is still there 2. Short-lived - either get a lease signed or tenant is evicted

Age Discrimination in Employment Act of 1967

-Prohibits employment discrimination against persons 40 years of age or older. -Prohibits employers from discriminating against people 40 years of age or older in any aspect of employment -Law does not protect people under 40*

Fair Labor Standards Act of 1938

-Provide for the establishment of fair labor standards in employment such as: basic minimum wage, overtime pay, record keeping and regulating the employment of minors

Child Labor Laws of 1993 (NC)

-Restrict the occupations in which minors may be employed and the number of hours and times during which they may work. -Require employers to comply with these rules and regulations for minors so they have a safe and acceptable work environment

Equal Pay Act of 1963

-The Equal Pay Act makes it illegal to pay someone more based on sex. The job doesn't have to be the same but substantially equal. -Employer must set equal pay for equal work between sexes - may not be identical jobs, but must be deemed substantially equal through job content

Scope of Employment

-To be within the scope of employment, an employee, at the time of the incident, must be acting in furtherance of the principal's business and for the purpose of accomplishing the duties of his employment. Troxler v. Charter Mandala Center. -It is not enough that the employee was present on the employer's premises at the time of the incident.

Respondeat Superior

-Trying to make the employer answer for the acts of the employee -- holds employer liable if inside scope of employment -Superior meaning the distinction between employer and employee

Massive disadvantage of sole proprietorship

-UNLIMITED PERSONAL LIABILITY -No distinction between business and individual - all taxes are reported on personal income tax returns

disadvantage of general partnership

-UNLIMITED PERSONAL LIABILITY -You are responsible for your own torts and losses AND also responsible for what your partner does -Taxes are reported on each partner's personal income tax return - "partnership" doesn't report taxes

Occupational Safety and Health Act of 1970 (OSHA)

-Under the Occupational Safety and Health Act, employers have a responsibility to provide a safe workplace for employees and each employer must comply with occupational safety and health standards promoted under this Act.

Jeff is a pizza delivery driver for Beach Pizza. As he is leaving the parking lot of Beach pizza to deliver pizzas, Jeff causes a car crash. Is this a frolic? Is this a detour? Is this within the scope of his employment? Is Beach Pizza liable?

-Yes, Beach Pizza is liable -Yes, within the scope of his employment - not a frolic or detour

Alterations

-aka remodeling -The part you're remodeling needs to be in compliance with ADA

Workers' Compensation Act of 1929 (NC)

-not on a federal level, only north carolina -Requires employers to have workers compensation insurance -No-fault system: doesn't matter whose fault it is -- Exceptions: impairment like drinking, drugs, etc. -Requires that all businesses that employ three or more employees carry workers' compensation insurance

categories regarding public accommodation

1. Place of lodging: e.g., hotel, inn, motel; 2. Place serving food or drink: e.g., restaurant, or bar; 3. Place of exhibition or entertainment: e.g., movie theater, concert hall, stadium; 4. Place of public gathering: e.g., auditorium, convention center, lecture hall; 5. Sales establishment: e.g., bakery, grocery store, clothing store, shopping center; 6. Service establishment: e.g., bank, gas station, barber shop, hospital; 7. Public transportation: e.g., terminal, depot, station; 8. Place of public display: e.g., museum, library; 9. Place of education: e.g., private school, private college, nursery school; 10. Place of recreation: e.g., park, zoo, theme park; 11. Social service establishment: e.g., day care center, homeless shelter, food bank; 12. Place of exercise or recreation: e.g., gym, golf course, bowling alley.

To establish a prima facie case of Title III discrimination, plaintiff must show that:

1. Plaintiff has a disability 2. Defendant owns, leases, or operates a place of public accommodation; and 3. Defendant discriminated against plaintiff on the basis of plaintiff's disability in the full and equal enjoyment of that place of public accommodation.

Define disparate impact

1. Some kind of test, policy or procedure in the workplace has a discriminatory effect when put into action but seems fair from the outside --Can be intentional or unintentional

define tenancy for years

1. Tenancy for any fixed period of time 2. How to distinguish - you know when it starts and when it ends (fixed start and end date) 3. **You don't have to give any notice to terminate the contract because it has a defined end date

Types (Classifications) of Tenancies

1. Tenancy for years 2. Tenancy from year to year (periodic tenancy) 3. Tenancy at will 4. Tenancy at sufferance

Amos is renting a condo in Atlantic Beach, NC during the off-season. The lease term begins on November 1, 2022 and ends on April 30, 2023. This is a ______. 1. Tenancy for years 2. Tenancy from year to year (periodic tenancy) 3. Tenancy at will 4. Tenancy at sufferance

1. Tenancy for years --because it has a defined start and end date

Remedies for a plaintiff - generally

1. The court may grant injunctive relief 2. Court may award reasonable attorney's fees to the prevailing (winning) party 3. See state law for other possible remedies --You may be entitled to other recoverable damages (financial) based on state laws

define landlords duty to mitigate damages upon abandonment by the tenant

1. The law is going to help you because you had a valid contract in place - but if someone else comes wanting to move in, cut your losses 2. Need to take the opportunity to help yourself - look for replacement tenant

Tenant's Duties

1. To pay rent 2. To protect and preserve the premises

Factors for piercing the corporate veil (court is going to look at these factors to see if piercing the corporate veil is appropriate)

1. Tricking someone into dealing with the corporation instead of the individual 2. Corporation is too thinly capitalized 3. Statutory corporate formalities not followed 4. Personal and corporate interests commingled such that corp has no separate identity

Define tenancy at will

1. Used to be a lot more common 2. Lasts as long as both parties agree for it to last 3. Both parties 'will' that tenancy to continue - once one party says it's time to go, it's time to go

define position statement

1. Want to address any allegation of discrimination brought upon employee or potential employee 2. Want / hope to be able to provide legitimate nondiscriminatory reason for what happened

common exceptions to the general rule of independent contractors

1. Work that is especially or inherently dangerous 2. Employer retained control over the work causing the injury

3 times where the question "employee vs. independent contractor" arises?

1. Worker who has injured someone 2. Employment laws like wages and overtime are only applied to employees, not independent contractors 3. IRS or state equivalent gets involved

advantage of general partnership

1. easy to form 2. working with different people -- different backgrounds, expertise, etc.

EEOC Process

1. must file claim with EEOC within 180 days 2. EEOC investigates the charge --1. EEOC may file suit on charging party's behalf --2. EEOC may issue a right to sue letter to charging party 3. Both lead to litigation

Barrier Removal - 3 scenarios

1. new construction 2. Alterations 3. Existing facilities - remove barriers as is readily achievable

Landlord's Duties

1. to pay taxes and assessments 2. To protect the tenant from concealed defects of which landlord is aware 3. To mitigate damages upon abandonment by the tenant

Priorities for Barrier Removal

1st: Accessible approach and entrance 2nd: Access to the area that includes goods and services 3rd: Restroom access 4th: Remove any remaining barriers

2 most important questions in economic dependence test

2. Does the worker's managerial skill affect the worker's opportunity for profit and loss? 6. What is the nature and degree of the employer's control?

Pierce wants to start a small coffee shop. To do this, Pierce will need some funds. Pierce's parents offered to contribute money to the new business; however, the parents do not want to help in the day-to-day operations of the business, and want to keep their personal assets safe. Of the following options, what form of business would you recommend to Pierce? 1. Partnership 2. Limited partnership 3. Sole proprietorship

2. Limited partnership

Which of the following entities have unlimited personal liability for the owners? 1. LLC 2. Partnership 3. Sole Proprietorship 4. Limited partnership

2. Partnership 3. Sole Proprietorship

Which of the following is the newest form of business: 1. Corporation 2. Partnership 3. LLC

3. LLC

Jeff is a runner for a law firm. On his way to deliver documents to the courthouse, he stops in a parking lot to make a few personal phone calls and to submit his law school application. While entering the parking lot, he hits a bicyclist. Is this a frolic? Is this a detour? Is this within his scope of employment? Is the law firm liable?

A frolic - Jeff is about his own business by submitting his law school application, pulling into a separate parking lot, etc. - law firm cannot be held responsible

Define Eviction

A landlord's act of depriving a tenant of possession of the leased premises

define "Disability"

A physical or mental impairment that substantially limits one or more major life activities - a record of such impairment - being regarded as having such an impairment

What is a public accommodation?

A place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories

define tenants duty to protect and preserve the premise

AKA don't destroy the place - once surpass normal wear and tear, the contract comes into place

example of Does the work performed require special skill?

All jobs require some sort of skill - here focused more on skilled labor / traits like drywall or tile work

What is an independent contractor?

An independent contractor is a person who contracts with another to do something for him/her but who is not controlled by the other nor subject to the other's right to control with respect to his/her physical conduct in the performance of the undertaking. - restatement

example of Does the worker's managerial skill affect the worker's opportunity for profit and loss?

Another way to say this - Are you running your own business and making business decisions?

type of relationship explained

Are there written contracts or employee type benefits (insurance, pension pay) - will the relationship continue and is work a key for the business

example of Is the relationship between the worker and the employer permanent or indefinite?

Are you going to work on behalf of this employer every time or are you working on your own behalf?

Define Limited partnership

At least two people - one is general partner and one is limited partner

example of is the work a key part of the employer's business?

Example: Accounting firm hires someone outside to help manage social media - not being a key part of your business

Title VII

Civil Rights Act

Existing facilities - remove barriers as is readily achievable

Continue to update as you can in compliance with ADA - easily achievable with low cost

define domestic corporation

Corporation that incorporates in NC and operates under the laws of NC

example of How does the worker's relative investment compare to the employer's investment?

Example: FedEx drivers were independent contractors and UPS were employees - FedEx could grow quickly because they misclassed their workers --> What tools do you need to have to do the job and who pays for those?

define general partnership

Defined as two or more people in business for profit -- you don't have to sign a contract or have a conversation to have a partnership, once you're working with someone for profit, it's a partnership

define frolic

Defined in the law as a MAJOR deviation from the course of your employment --If you're on a frolic, you are about your own business so employer cannot be held liable

behavioral explained

Does the company control or have the right to control the worker or what the worker does?

define A record of such impairment

Employee or job applicant who had a condition in the past that would qualify - cannot be discriminated against

EEOC

Equal Employment Opportunity Commission

define perpetual existence

If someone dies the corporation can continue on because ownership is easily transferable - can last forever

example of regarded as having such an impairment

Example: job giving you a pre-employment physical - during the physical, doctor discovers an anomaly - no disability but something could develop in the future - cannot be discriminated against on the basis of that

define disparate treatment

Filing suit because person was treated improperly and unfairly - simply being discriminated against

Liability for Torts

Generally, an employer is not liable for independent contractor's torts --Employers are generally not liable in tort for intentional torts committed by an employee. However, if an employer's type of business is one that lends itself to frequent conflicts or dangerous situations, such as repossession of cars, then the employer may be held liable for the intentional torts of employees.

general rule of independent contractors

Generally, the employer of an independent contractor is not liable for the independent contractor's acts.

define inside director

Have a role within the company

example of What is the nature and degree of the employer's control?

Is someone telling you what to do, what to where, how to do your job

why does landlord have to pay taxes and assessments?

Landlord owns the real property so have responsibility of property owner

why must the file be claimed within 180 days?

Must be filed within 180 days because want memory to be clear and want to know what actually happened accurately

what is the word for eviction in North Carolina?

NC: "Summary Ejectment"

ADA - Title III

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operate a place of public accommodation

what can a landlord not do in eviction?

No self-help

one exception to substantially limits one or more

One exception: in terms of vision being substantially limiting, we don't consider the difference between glasses and contacts

new construction

Public accommodations - if you're going to do it and build something, do it right and follow ADA rules

define reasonable accommodation

Reasonable accommodation - ex: change to the physical space like an adjustable desk or change to an employee's schedule to work around their medical schedule

Define Sole proprietorship

Simplest form of business - one person working by themselves trying to make money - you just start working and that's how you create sole proprietorship

More than ⅔ of U.S. businesses are _______.

Sole proprietorship because they are so easy to start but may not be the smartest way to go long-term

define self-help in eviction from landlord

There is an orderly process involving eviction and you must go through it - cannot evict someone yourself (like changing the locks)

When determining whether a worker is an employee or an independent contractor, a key factor is ________.

control

Title VII of the Civil Rights Act

Unlawful to fail to hire, discharge, or discriminate in any way against another with respect to the terms, conditions, or privileges, of employment because of the person's race, color, religion, gender, or national origin. (protected classes)

financial explained

Who provides equipment, etc.

Jalen works as a security guard. When Jalen was hired, he attended a three-hour training session. Then, he worked alongside an experienced security guard for two weeks. They provided Jalen with a uniform and created a work schedule for him. Is the company required to withhold employment taxes from Jalen's paycheck?

Yes, the company is required to withhold employment taxes from his paycheck (the company files taxes on the employee behalf)

define detour

a MINOR deviation --Getting water, talking to your co-worker, etc. but still about the employer's business so employer can be held liable

who elects the officers of a corporation?

board of directors

Inside scope of employment

business/manager can be held liable for events taking place

Outside scope of employment

business/manager can not be held liable for events taking place

what is filing a complaint with the EEOC called?

charge of discrimination

advantage of sole proprietorship

easy to start

Employee - Within scope of Employment --> is employer liable?

employer is liable

Employee - Outside scope of Employment --> is employer liable?

employer is not liable

Independent Contractor --> is employer liable?

employer is not liable *GENERALLY*

In a limited partnership, the _______ assumes all management and all personal liability -general partner or limited partner?

general partner

example of ADA

handicapped ramps, doorknobs, carpet, bathrooms, proper parking space size, elevator, etc.

Under the doctrine of respondeat superior, employers are liable or not liable?

liable for torts committed by their employees who are acting within the scope of their employment

A _______ is defined as when two or more individuals are engaged in business for profit. 1. Partnership 2. Limited partnership 3. Limited liability partnership

partnership

what is tenancy from year to year also called?

periodic tenancy

what does employer file in response to charge of discrimination

position statement

Define Registered Agent

receives service of process (ex: if you want to sue Port City Java, you have to serve lawsuits to the registered agent)

who elects the board of directors?

shareholders

Define Serial Plaintiff

someone who continues over and over to file a particular lawsuit

Department of Justice

tasked with ensuring companies follow ADA rules and coming up with ways for companies to remove any remaining barriers

what determines whether you are an employee or independent contractor?

the tests

when making a company, can you choose a different states laws to follow?

yes