exam 3

Supporting Societal Values

Courts are sometimes willing to protect employees who do the right thing, even if they violate the boss's orders.

litigation

Courts have the power under Title VII to order affirmative action to remedy the effects of past discrimination.

gratutious agent

Someone not paid for performing duties.

whistleblowing

Someone who discloses wrongdoing. They are employees who disclose illegal behavior on the part of their employer

intermediary agent

Someone who hires subagents for the principal.

Partial Strikes

A union may either walk off the job or stay on it, but it may not alternate.

example

"Knock It Off brand food supplement will help you lose weight and gain muscle faster than any competing supplement," shrieks the television commercial, offering an independent study as proof. However, a competitor sues and demonstrates that during the study, users of Knock It Off received free health club memberships and low-fat gourmet meals, distorting the results. Knock It Off has violated the Lanham Act. The court will order the company to knock it off and stop showing the commercial, and also to pay damages to the injured competitor.

4 elements for defamation

*defamatory statements *falsity *communicated *injury

Duties of Agents to Principals

*duty of loyalty *outside benefits *confidential information *competition w the principle *conflict of interest btw two principles *secretly dealing w the principal *appropriate behavior *duty to obey instruction *duty of care *duty to provide information

Affirmative action is not required by Title VII, nor is it prohibited. Affirmative action programs have three different sources.

*litigation *voluntary action *government contracts

reaonsable accomodation

*make facilities accessible *permit part-time schedules *acquire modify eqipment *Assign a disabled person to an open position that he can perform. (Note that the employer is not required to create a new job or find a perfect position, just a reasonable one

the prganization process

-campiagn -authorization cards -petition -election

Two cars, driven by Fred and Barney, collide. At trial, the jury determines that the accident was 90 percent Fred's fault and 10 percent Barney's fault. Barney's losses total $100,000. If he lives in a state that uses contributory negligence, Barney will recover .

0

How damages are calculated

1. plaintiff receives money for medical expensive 2. the defendant are liable for lost wages 3. a platiff is paid for pain and suffering. you can state now you have a fear of shopping nightmares

A principal is not liable for the intentional physical torts of an employee unless

1. the employee intended to serve some purpose of the employer or 2. the employer was negligent in hiring or supervising this employee. Thieves have stolen a number of computers and purses from the desks of Compania employees. When Aubrey sees a stranger walking down the hallway carrying a computer, she tackles him from behind, breaking his nose. It turns out that he was an authorized computer repair person. Compania is liable for Aubrey's actions because she was motivated, at least in part, by a desire to help her employer. But if Aubrey attacks someone in the company lunch room because he took the last cupcake, Compania is not liable. Aubrey was acting out of personal frustration, not a desire to help her employer.

Employee There are two kinds of agents:

1.employee and 2. independent contractor. Generally, a principal is liable for the physical torts of an employee but is not liable for the physical torts of an independent contractor.

Brown v. Board of Education

1954 - The Supreme Court overruled Plessy v. Ferguson, declared that racially segregated facilities are inherently unequal and ordered all public schools desegregated.

collective bargaining agreement (CBA)

A contract between a union and a company.

Al runs a red light and hits Carol's car. She later sues, claiming the following losses: $10,000—car repairs $10,000—medical expenses $10,000—lost wages (she could not work for two months after the accident) $10,000—pain and suffering If the jury believes all of Carol's evidence and she wins her case, how much will she receive in compensatory damages?

40,000

wrongful discharge, which prohibits an employer from firing a worker for certain particularly bad reasons

A bad reason is one that violates public policy. Unfortunately, this public policy rule is easier to name than it is to define because its definition and application vary from state to state. In essence, the public policy rule prohibits an employer from firing a worker for a reason that violates fundamental social rights, duties, or responsibilities.

strict liability

A branch of tort law that imposes a much higher level of liability when harm results from ultrahazardous acts or defective products. There are two main areas of business that incur strict liability: ultrahazardous activity and defective products. Defective products are discussed in the following section on product liability.

no strike clause

A clause in a CBA that prohibits the union from striking while the CBA is in force.

Atlas operated warehouses that stored food for grocery stores. Imagine the upset when a mystery employee began leaving his feces in a warehouse. To solve the mystery of the devious defecator, Atlas required cheek swabs from two of its workers so that it could compare their DNA with that of the feces. Was Atlas liable to the workers?

A court held that Atlas had violated GINA, which prohibits employers from requesting genetic information from its workers. It doesn't matter that the DNA did not match. Lowe v. Atlas Logistics Group Retail Servs. Atlanta, LLC, 102 F. Supp. 3d 1360 (N.D. Ga. 2015).

breach of duty

A defendant breaches his duty of due care by failing to meet his duty of care.

merit

A defendant is not liable if he shows that the person he favored was the most qualified -test results, education, or productivity

disability

A disabled person is someone with a physical or mental impairment that substantially limits a major life activity or the operation of a major bodily function or someone who is regarded as having such an impairment.

Lifestyle Laws

A few states, such as California, have passed lifestyle laws that protect the right of employees to engage in any lawful activity or use any lawful product when off duty. Thus, if California residents skydive while smoking a cigarette, they may lose their lives, but not their jobs. Some laws also protect particular off-duty conduct.

essential functions of the job

A juvenile corrections officer was hit by a baseball that fractured her wrist. Nine months after returning to her job, she was assigned to the night shift, where the only other officer was a newcomer. Concerned that her wrist was not strong enough for her to restrain some of the inmates on her own, she asked to be paired with an experienced officer. Her employer fired her on the grounds that she could not perform the essential functions of the job. But the court ruled that, since she had been working successfully as an officer during the day, clearly she could perform the essential functions

Lowest Liability: Trespassing Adults

A landowner is liable to a trespasser only for intentionally injuring him or for some other gross misconduct. The landowner has no liability to a trespasser for mere negligence. Jake is not liable if a vagrant wanders onto his land and is burned by defective electrical wires.

The idea behind punitive damages is that certain behavior is so unacceptable that society must make an example of it.

A large award of money should deter the defendant from repeating the mistake and others from ever making it. Some believe punitive damages represent the law at its most avaricious, while others attribute to them great social benefit.

seniority

A legitimate seniority system is legal even if it perpetuates past discrimination.

Higher Liability: Licensee

A licensee is anyone on the land for her own purposes but with the owner's permission. A social guest is a typical licensee. A licensee is entitled to a warning of hidden dangers that the owner knows about. If Juliet invites Romeo for a late supper on the balcony and fails to mention that the wooden railing is rotted, she is liable when her hero plunges to the courtyard. But Juliet is liable only for injuries caused by hidden dangers—she has no duty to warn guests of obvious dangers. She need not say, "Romeo, oh Romeo, don't place thy hand in the toaster, Romeo."

Special Duty: Professionals

A person at work has a heightened duty of care. While on the job, she must act as a reasonable person in her profession. A taxi driver must drive as a reasonable taxi driver would. A heart surgeon must perform bypass surgery with the care of a trained specialist in that field.

licensee

A person on another's land for her own purposes but with the owner's permission.

invitee

A person who has a right to enter another's property because it is a public place or a business open to the public.'' If riptides have existed for years and the town fails to post a warning, it is liable if Perry drowns. Perry is also an invitee when he goes to Dana's coffee shop. Dana is liable if she ignores spilled coffee that causes Perry to slip. With social guests, you must have actual knowledge of some specific hidden danger to be liable. Not so with invitees. You are liable even if you had no idea that something on your property posed a hidden danger. Therefore, if you own a business, you must conduct inspections of your property on a regular basis to make sure that nothing is becoming dangerous. However, you generally do not have an obligation to protect against the wrongdoing of a third person. When a gunman went on a shooting spree at Virginia Tech, students Erin Peterson and Julia Pryde were among the 32 killed. The victims' families sued the university for wrongful death, claiming that it should have warned its students that a killer was on the loose. The Virginia Supreme Court disagreed. It held that the university had no duty to warn its students about this third-party criminal act because it was not reasonably foreseeable that the gunman would continue on and kill others. At the time of the initial shootings, the university believed it was an isolated incident and that gunman had left the university grounds.

secondary boycott

A picket line established not at the employer's premises but at a different workplace. -generally illegal

to create an agency relationship, there must be

A principal and An agent, Who mutually consent that the agent will act on behalf of the principal and Be subject to the principal's control Thereby creating a fiduciary relationship.

Apparent Authority

A principal can be liable for the acts of an agent who is not, in fact, acting with authority if the principal's conduct causes a third party reasonably to believe that the agent is authorized Remember that the issue in apparent authority is always what the principal has done to make the third party believe that the agent has authority

Authority

A principal is bound by the acts of an agent if the agent had authority. There are three types of authority: express, implied, and apparent. Express and implied authority are categories of actual authority because the agent is truly authorized to act for the principal. In apparent authority, the principal is liable for the agent's actions even though the agent was not authorized.

negligent hiring

A principal is liable for both the negligent and intentional physical torts of an independent contractor if the principal has been negligent in hiring or supervising her

respondeat superior

A principal is liable for certain torts committed by an agent.

If an employer requires a polygraph test, it must give advance written notice of when the test will be given and advise workers that they are entitled to legal counsel.

A private employer may not fire or discriminate against an employee who fails a polygraph exam unless it also finds supporting evidence that the worker has done something wrong.

absolute privilege

A witness testifying in a court or legislature may never be sued for defamation. Defendants receive additional protection from defamation cases when it is important for them to speak freely.

obesity

According to the EEOC, just being overweight is not a disability unless it has some underlying physiological cause, such as a thyroid disorder. However, being morbidly obese (defined as having double the normal body weight) is a disability, no matter what the cause.

competition w the principle

Agents are not allowed to compete with their principal in any matter within the scope of the agency business. If Allen Klein had purchased the "He's So Fine" copyright while he was George Harrison's agent, he would have committed an additional sin against the agency relationship. Owning song rights was clearly part of the agency business, so Klein could not make any such purchases without Harrison's consent. Once the agency relationship ends, however, so does the rule against competition. Klein was entitled to buy the "He's So Fine" copyright after the agency relationship ended; he was just not allowed to use confidential information.

agents are always liable for their own torts

Agents who commit torts are personally responsible, whether or not their principal is also liable. Even if the tort was committed to benefit the principal, the agent is still liable. So the sailor who got into a fistfight while rousing a shipmate from bed is liable even though he thought he was acting for the benefit of his principal.

jointly and severally liable

All members of a group are liable. They can be sued as a group, or any one of them can be sued individually for the full amount owed. But the plaintiff cannot recover more than the total she is owed. A principal is unidentified if the third party knew of his existence but not his identity. Suppose that, when approaching Tracey about the horse, Augusta simply says, "I have a friend who is interested in buying your champion." Any friend of Augusta's is a friend of Tracey's—or so Tracey thinks. Parker is an unidentified principal because Tracey knows only that he exists, not who he is. She cannot investigate his creditworthiness because she does not know his name. Tracey relies solely on what she is able to learn from the agent, Augusta. Parker and Augusta are jointly and severally liable to Tracey. Thus, Tracey can recover from either or both of them. However, she cannot recover more than the total she is owed.

The ADA applies to recovered drug addicts but not to the current use of drugs, sexual disorders, pyromania, exhibitionism, or compulsive gambling.

Although the ADA protects alcoholics who can meet the definition of disabled, employers can nonetheless fire alcoholics if their drinking adversely affects job performance. Suppose an employee has a disabling illness, but one that can be successfully treated. The employee is still considered to be disabled, even if the illness is well controlled. Thus, someone with diabetes is disabled, even if the illness is managed so well that it does not interfere with major life activities.

wrongful discharge

An employer may not fire a worker for a reason that violates basic social rights, duties, or responsibilities.

authorization

An act is within the scope of employment, even if expressly forbidden, if it is of the same general nature as that authorized or if it is incidental to the conduct Hank was authorized to drive the van, but not to speed. However, his speeding was of the same general nature as the authorized act, so Jane is liable to Bernadette.

assault

An act that makes a person reasonably fear an imminent battery. This tort is based on apprehension—it does not matter whether a battery ever occurs Suppose Ms. Wilson shouts "Think fast!" at her husband and hurls a toaster at him. He turns and sees it flying at him. His fear of being struck is enough to win a case of assault, even if the toaster misses. If the toaster happens to strike him, Ms. Wilson has also committed battery.

duty of care

An agent has a duty to act with reasonable care. In other words, an agent must act as a reasonable person would, under the circumstances. A reasonable person would not have texted Taylor while he was in Antarctica.

Duty to Provide Information

An agent has a duty to provide the principal with all information in her possession that she has reason to believe the principal wants to know. She also has a duty to provide accurate information. Angie knew that the Fords had counteroffered for $2,500 a month. She had a duty to pass this information on to Taylor.

duty of loyalty

An agent has a fiduciary duty to act loyally for the principal's benefit in all matters connected with the agency relationship. The agent has an obligation to put the principal first, to strive to accomplish the principal's goals.

Fully Disclosed Principal

An agent is not liable for any contracts she makes on behalf of a fully disclosed principal. A principal is fully disclosed if the third party knows of his existence and his identity. Augusta acts as an agent for Parker when he buys Tracey's prize-winning show horse. Augusta and Tracey both grew up in posh Grosse Pointe, Michigan, where they attended the same elite schools. Tracey does not know Parker, but she figures any friend of Augusta's must be OK. She figures wrong—Parker is a charming deadbeat. He injures Tracey's horse, fails to pay the full contract price, and promptly disappears. Tracey angrily demands that Augusta make good on Parker's debt. Unfortunately for Tracey, Parker was a fully disclosed principal—Tracey knew of his existence and his identity. Although Tracey partly relied on Augusta's good character when contracting with Parker, Augusta is not liable because Tracey knew who the principal was and could have (should have) investigated him. Augusta did not promise anything herself, and Tracey's only recourse is against the principal, Parker (wherever he may be). To avoid liability when signing a contract on behalf of a principal, an agent must clearly state that she is an agent and also must identify the principal. Augusta should sign a contract on behalf of her principal, Parker, as follows: "Augusta, as agent for Parker" or "Parker, by Augusta, Agent."

Appropriate Behavior

An agent may not engage in inappropriate behavior that reflects badly on the principal. This rule applies even to off-duty conduct. While off-duty (but still in uniform), a coed trio of flight attendants went wild at a hotel bar in London. They kissed and caressed each other, showed off their underwear, and poured alcohol down their trousers. The airline fired two of the employees and gave a warning letter to the third.

outside benefits

An agent may not receive profits unless the principal knows and approves. Suppose that Emma is an employee of the agency Big Egos and Talents, Inc. (BEAT). She has been representing Zac Efron in his latest movie negotiations. Efron often drives her to meetings in his new Aston Martin. He is so thrilled that she has arranged for him to star in the movie Little Men that he buys her an Aston Martin. Can Emma keep this generous gift? Only with BEAT's permission. She must tell BEAT about the gift; the company may then take the vehicle itself or allow her to keep it.

Duty to Obey Instructions

An agent must obey her principal's instructions unless the principal directs her to behave illegally or unethically. Taylor instructed Angie to email him if the Fords rejected the offer. When Angie failed to do so, she violated her duty to obey instructions. If, however, Taylor had asked her to say that the house's basement was dry when in fact a river flowed through it every spring, Angie would be under no obligation to follow those illegal instructions

The principal must indemnify the agent for any liability to third parties that the agent incurs as a result of entering into a contract on the principal's behalf, including attorney's fees and reasonable settlements.

An agent signed a contract to buy cucumbers for Vlasic Food Products Co. to use in making pickles. When the first shipment of cucumbers arrived, Vlasic inspectors found them unsuitable and directed the agent to refuse the shipment. The agent found himself in a pickle when the cucumber farmer sued. The agent notified Vlasic, but the company refused to defend him. He settled the claim himself and, in turn, sued Vlasic. The court ordered Vlasic to reimburse the agent because he had notified them of the suit and had acted reasonably and in good faith.

There are four elements to a defamation case.

An element is something that a plaintiff must prove to win a lawsuit. The plaintiff in any kind of lawsuit must prove all of the elements to prevail.

Hostile Work Environment

An employee is entitled to recovery under the ADA if she is subjected to a hostile work environment because of her disability

Under the Employee Polygraph Protection Act of 1988, employers may not require, or even suggest, that an employee or job candidate submit to a polygraph test except in the following cases:

An employee who is part of an "ongoing investigation" into crimes that have already occurred; An applicant applying for a government job; or An applicant for a job in public transport, security services, banking, or at pharmaceutical firms that deal with controlled substances.

Bona Fide Occupational Qualification (BFOQ)

An employer is permitted to establish discriminatory job requirements if they are essential to the position in question. The business must show that it cannot fulfill its primary function unless it discriminates. Such a requirement is called a bona fide occupational qualification (BFOQ). (Note that only religion, sex, or national origin can be a BFOQ—never race or color.)

relationship w a disabled person

An employer may not discriminate against someone because of his relationship with a disabled person.

Tortious interference with a contract

An intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintiff.

intentional infliction of emotional distress

An intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm. ie:A credit officer was struggling vainly to locate Sheehan, who owed money on his car. The officer phoned Sheehan's mother, falsely identified herself as a hospital employee, and said she needed to find Sheehan because his children had been in a serious auto accident. The mother provided Sheehan's whereabouts, which enabled the company to seize his car. But Sheehan spent seven hours frantically trying to locate his supposedly injured children, who in fact were fine. The credit company was liable for the intentional infliction of emotional distress.

battery

An intentional touching of another person in a way that is harmful or offensive. ie:If an irate parent throws a chair at a referee during his daughter's basketball game, breaking the man's jaw, he has committed battery. But a parent who cheerfully slaps the winning coach on the back has not committed battery because a reasonable coach would not be offended.

Here are some examples of what counts as a "serious health condition" under the FMLA:

Any health issue that requires hospitalization A condition that requires more than one visit to a healthcare provider; the visits may be spread out over as long as a year A condition that requires only one visit to a healthcare provider but also requires a course of treatment such as physical therapy or prescription medication

The Dodd-Frank Wall Street Reform and Consumer Protection Act.

Anyone who provides information to the government about violations of securities or commodities laws is entitled to a payout of from 10 to 30 percent of whatever award the government receives, provided that the award tops $1 million. (The Dodd-Frank whistleblowing provisions do not apply to people who report wrongdoing to their employer instead of to the government.) If a company retaliates against tipsters, they are entitled to reinstatement, double back pay, and attorney's fees.

medical exams

Applicants. An employer generally may not require a medical exam or ask about disabilities, except that the interviewer may ask: Whether an applicant can perform the work (provided that the same question is asked of all applicants), For the applicant to demonstrate how he would perform the job, and (In the event that a disability is obvious) what accommodation the applicant would need. Entering employees. The company may require a medical test and make it a condition of employment, but the test must be: Required of all employees in similar jobs, whether or not they are disabled, and Treated as a confidential medical record (except for managers who need to know). Existing employees. An employer may require medical exams or discuss any suspected disability, but only to determine if a worker is still able to perform the existing functions of her job.

Exercising a Legal Right

As a general rule, an employer may not discharge a worker for exercising a legal right if that right supports public policy

Refusing to Violate the Law

As a general rule, employees may not be discharged for refusing to break the law

Duty to Indemnify

As a general rule, the principal must indemnify the agent for any expenses she has reasonably incurred. These reimbursable expenses fall into three categories:

Bona Fide Occupational Qualification

As is the case under Title VII, age is rarely a BFOQ. To set a maximum age, the employer must show that: The age limit is reasonably necessary to the essence of the business and either Virtually everyone that age is unqualified for the job or Age is the only way an employer can determine who is qualified.

assumption of risk

Assumption of risk: A person who voluntarily enters a situation that has an obvious danger cannot complain if she is injured.

Other Statutory Claims

Before a plaintiff can bring suit under any of these statutes (except the Equal Pay Act), she must first file a charge with the EEOC. Generally, the plaintiff must file within 180 days of the wrongdoing. But if the plaintiff is alleging that she was paid less than she should have been, each paycheck she receives starts the statute of limitations all over again. After it receives a filing, the EEOC conducts an investigation and also attempts to mediate the dispute. If it determines that discrimination has occurred, it will typically file suit on behalf of the plaintiff. This arrangement is favorable for the plaintiff because the government pays the legal bill. If the EEOC decides not to bring the case, or does not make a decision within six months, it issues a right to sue letter, and the plaintiff may proceed on her own in court within 90 days. Under the ADEA, a plaintiff may bring suit 60 days after filing a charge with the EEOC. Many states also have their own version of the EEOC. But even if a case does go to trial, plaintiffs in job discrimination cases have a much worse track record than other types of plaintiffs—they win less often at trial, and they lose more often on appeal. As a result, the number of discrimination cases in the federal courts has declined.

Workers' compensation statutes ensure that employees receive payment for injuries incurred at work.

Before workers' comp, injured employees could recover damages only if they sued their employer. It was the brave worker who was willing to risk a suit against his boss. Lawsuits not only poisoned the atmosphere at work, but employers frequently won anyway by claiming that he injured worker was contributorily negligent a fellow employee had caused the accident, or the injured worker had assumed the risk of injury.

former employees must be allowed to continue their health coverage for 18 months after leaving their job

But they must pay the cost themselves, plus as much as an additional 2 percent to cover administrative expenses. company must have 20 or more workers

an agent has no authority to delegate her tasks to another unless the principal authorizes her to do so.

But when an agent is authorized to hire a subagent, the principal is as liable for the acts of the subagent as he is for the acts of a regular agent. After Daniel authorizes Michaela to hire a restaurant staff, she hires Lydia to serve as produce buyer. When Lydia buys food for the restaurant, Daniel must pay the bill.

Keith is driving while intoxicated. He swerves into the wrong lane and causes an accident, seriously injuring Caroline. Which statement is true? Caroline could sue Keith, who might be found guilty in her suit . Caroline and the state could start separate criminal cases against Keith. Caroline could sue Keith, and the state could prosecute Keith for drunk driving. The state could sue Keith but only with Caroline's consent. The state could prosecute Keith and sue him at the same time for drunk driving.

Caroline could sue Keith, and the state could prosecute Keith for drunk driving.

damages

Compensatory damages are the normal remedy in a tort case. In unusual cases, the court may award punitive damages, not to compensate the plaintiff but to punish the defendant.

punitive damages

Damages that are intended to punish the defendant for conduct that is extreme and outrageous.

Principal's Remedies When the Agent Breaches a Duty

Damages. The principal can recover from the agent any damages the breach has caused. Thus, if Taylor can rent his house for only $2,000 a month instead of the $2,500 the Fords offered, Angie would be liable for $6,000—$500 a month for one year. Profits. If an agent breaches the duty of loyalty, he must turn over to the principal any profits he has earned as a result of his wrongdoing. Thus, after Klein violated his duty of loyalty to Harrison, he forfeited profits he would have earned from the copyright of "He's So Fine." Some states also allow punitive damages against disloyal employees . Rescission. If the agent has violated her duty of loyalty, the principal may rescind the transaction. When Trang sold a script to her principal, Spielberg, without telling him that she was the author, she violated her duty of loyalty. Spielberg could rescind the contract to buy the script

The False Claims Act

Darity recovered under the federal False Claims Act, a statute that permits lawsuits against anyone who defrauds the government. The recovery is shared between the government and the whistleblower. This act prohibits employers from retaliating against workers who file suit under the statute. Over half the states have also passed their own false claims acts.

Deflamation

Defamation involves a defamatory statement that is false, uttered to a third person, and causes an injury. Opinion and privilege are valid defenses.

Disparate Impact

Disparate impact applies if the employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected category. 1The plaintiff must present a prima facie case. defines a disparate impact as one in which the pass rate for a protected category is less than 80 percent of that for others. 2. The defendant must offer some evidence that the employment practice was a job-related business necessity 3.To win, the plaintiff must now prove either that the employer's reason is a pretext or that other, less discriminatory, rules would achieve the same results Note that, unlike disparate treatment, the plaintiff in a disparate impact case, does not have to prove intentional discrimination.

To win a negligence case, a plaintiff must prove five elements. Much of the remainder of the chapter will examine them in detail. They are:

Duty of Due Care. The defendant had a legal responsibility to the plaintiff. This is the point from the Palsgraf case. Breach. The defendant breached her duty of care or failed to meet her legal obligations. Factual Cause. The defendant's conduct actually caused the injury. Proximate Cause. It was foreseeable that conduct like the defendant's might cause this type of harm. Damages. The plaintiff has actually been hurt or has actually suffered a measureable loss.

Hostile Environment Based on Color

Dwight Burch alleged that his coworkers at an Applebee's restaurant created a hostile work environment when they called him hateful names because of his dark skin color. These colleagues were also African-American but had lighter skin. While denying any wrongdoing, Applebee's settled the case by paying Burch $40,000 and agreeing to conduct anti-discrimination training.

Background and Credit Checks

EEOC regulations prohibit companies from using criminal history information in a way that has an adverse impact on employees in a protected category if the background information is irrelevant in determining whether the employee is appropriate for the job

duty of care

Each of us has a duty to behave as a reasonable person would under the circumstances. it only affects ppl in ur bubble, if you are texting a driving and a video is posted online someone watches it and falls down stairs... ur good fam

If the principal or the agent is unable to perform the duties required under the agency agreement, the agreement terminates:

Either the agent or the principal fails to obtain (or keep) a required license. The bankruptcy of the agent or the principal affects their ability to perform required duties Either the principal or the agent dies or becomes incapacitated. The agent violates her duty of loyalty.

Constitutional protection for government employees.

Employees of federal, state, and local governments have a right to free speech under the U.S. Constitution. Therefore, the government cannot retaliate against public employees who blow the whistle if the employee is speaking out on a matter of public concern. A New York City social worker complained on television that the city child welfare agency was not adequately protecting children from horrible abuse. When the city suspended her, she sued. The court ruled that the government has the right to prohibit some employee speech, but if the employee speaks on matters of public concern, the government bears the burden of justifying any retaliation. In this case, the court held for the social worker.

voluntary action

Employers can voluntarily introduce an affirmative action plan to remedy the effects of past practices or to achieve (but not to maintain) equitable representation of minorities and women, provided that the plan is not too unfair to majority members. For example, in the university and community college system in Nevada, only 1 percent of the faculty were black (and roughly 25 percent were female). In response, the university instituted a policy that permitted any department that hired a minority candidate to also hire an additional candidate of any race. Although Yvette Farmer was one of three finalists for a job in the sociology department, it hired a black African male without even granting her an interview. The Court ruled that the university's affirmative action plan was legal

religion

Employers cannot discriminate against a worker because of his religious beliefs. In addition, employers must make reasonable accommodation for a worker's religious practices unless the request would cause undue hardship for the business

Defamation

Employers may be liable for defamation when they give false references about an employee. In his job as a bartender at the Capitol Grille restaurant, Christopher Kane often flirted with customers. After he was fired from his job, his ex-boss claimed that Kane had been "fired from every job he ever had for sexual misconduct." In fact, Kane had never been fired before. He recovered $300,000 in damages for this defamation.

In 1970, Congress passed the Occupational Safety and Health Act (OSHA) to ensure safe working conditions. Under OSHA:

Employers must comply with specific health and safety standards. Employers are under a general obligation to keep their workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. Employers must keep records of all workplace injuries and accidents. The Occupational Safety and Health Administration (which is also known as OSHA) may inspect workplaces to ensure that they are safe. OSHA may assess fines for violations and order employers to correct unsafe conditions.

Hostile Work Environment

Employers violate Title VII if they permit a work environment that is so hostile toward people in a protected category that it affects their ability to work

qualified privilege

Employers who give references are liable only for false statements that they know to be false or that are primarily motivated by ill will. After Becky Chambers left her job at American Trans Air, Inc., she discovered that her former boss was telling anyone who called for a reference that Chambers "does not work good with other people," is a "troublemaker," and "would not be a good person to rehire." Chambers was unable, however, to present compelling evidence that her boss had been primarily motivated by ill will. Neither Trans Air nor the boss was held liable for these statements because they were protected by a qualified privilege

family responsibility discrimination

Family responsibility discrimination is a violation of Title VII if it involves men and women being treated differently

The NLRA also established the National Labor Relations Board (NLRB) to administer and interpret the statute and to adjudicate labor cases.

For example, when a union charges that an employer has committed a ULP—say, by refusing to bargain—the claim goes first to the NLRB.

the civil rights act of 1866

For plaintiffs alleging racial discrimination, the Civil Rights Act of 1866 offers substantial advantages over Title VII: A four-year statute of limitations (versus less than a year under Title VII) Unlimited compensatory and punitive damages (which, in one case, amounted to $7 million) Applicability to all employers, not just those with 15 or more employees However, this statute is not enforced by the EEOC, which means that the plaintiff is on his own when it comes to negotiating with or filing suit against an employer.

proximate cause

For the defendant to be liable, the type of harm must have been reasonably foreseeable

proximate cause

For the defendant to be liable, the type of harm must have been reasonably foreseeable.

prima facie

From the Latin, meaning "from its first appearance," something that appears to be true upon a first look The plaintiff is not required to prove discrimination; she need only create a presumption that discrimination occurred. 2. The defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons 3. To win, the plaintiff must now prove that the employer intentionally discriminated, although this motive can be inferred from differences in treatment *burden of proof is on the platiff*

Government Employers

Governments are sometimes allowed to conduct drug and alcohol tests of their employees. Public safety workers, such as police and firefighters, can be randomly tested for illegal drugs, and they may also be required to report legal drug use that could compromise their ability to perform their jobs. If their drug use (legal or not) is a threat to public safety, they may be suspended or fired from their jobs. Other government employees, whose work does not involve public safety, can be tested only if they show signs of impairment.

To ensure that its employees did not use illegal drugs in or outside the workplace, Marvel Grocery Store required all employees to take a polygraph exam. Moreover, managers began to check employees' Facebook pages for reference to drug use. Jagger was fired for refusing to take the polygraph test. Pete was dismissed after revealing on his Facebook page that he was using marijuana (illegally). Has the company acted in accordance with the law?

Here, Marvel has no reason to believe that a crime occurred, so it cannot require a polygraph test. Pete's Facebook postings have nothing to do with work conditions and illegal activity is not protected. So the company is liable to Jagger for requiring him to take the polygraph exam, but not to Pete for firing him over illegal drug use.

The goal of picketing is to discourage employees, replacement workers, and customers from doing business with the company. Picketing the employer's workplace in support of a strike is generally lawful.

However, the picketers are not permitted to use physical force to prevent someone from crossing the line. The company may terminate violent picketers and permanently replace them, regardless of the nature of the strike.

Marko owned a cat and allowed it to roam freely outside. In the three years he had owned the pet, the animal had never bitten anyone. The cat entered Romi's garage. When Romi attempted to move it outside, the cat bit her. Romi underwent four surgeries, was fitted with a plastic finger joint, and spent more than $39,000 in medical bills. She sued Marko, claiming both strict liability and ordinary negligence. Assume that state law allows a domestic cat to roam freely. Evaluate both of Romi's claims.

If Marko's cat had bitten or attacked people in the past, this harm was foreseeable and Marko is liable. If the cat had never done so, and state law allows domestic animals to roam, Romi probably loses her suit for negligence. Her strict liability case definitely fails: a housecat is not a wild animal.

Ratification

If a person accepts the benefit of an unauthorized transaction or fails to repudiate it, then he is as bound by the act as if he had originally authorized it. He has ratified the act. Even if an agent acts without authority, the principal can decide later to be bound by her actions as long as these requirements are met: The "agent" indicates to the third party that she is acting for a principal. The "principal" knows all the material facts of the transaction. The "principal" accepts the benefit of the whole transaction, not just part. The third party does not withdraw from the contract before ratification.

Secretly Dealing with the Principal

If a principal hires an agent to arrange a transaction, the agent may not become a party to the transaction without the principal's permission. Suppose Spielberg hires Trang to read new scripts for him. Unbeknownst to Spielberg, Trang has written her own script, which she thinks would be ideal for him. But she may not sell it to him without revealing that she wrote it herself. Spielberg may be perfectly happy to buy Trang's script, but he has the right, as her principal, to know that she is the person with whom he is dealing.

factual cause

If one event directly led to the ultimate harm, it is the factual cause.

Either party always has the power to terminate. They may not, however, have the right.

If one party's departure from the agency relationship violates the agreement and causes harm to the other party, the wrongful party must pay damages. Nonetheless, he will be permitted to leave. If Boris has agreed to work for Alexandra for two years but he wants to leave after one, he can leave, provided he pays Alexandra the cost of hiring and training a replacement. If the agent is a gratuitous agent (i.e., is not being paid), he has both the power and the right to quit any time he wants, regardless of the agency agreement. If Boris is doing this job for Alexandra as a favor, he will not owe her damages when he stops work.

As mentioned earlier, there need be no intention to hurt the plaintiff.

If the defendant intended to do the physical act, and a reasonable plaintiff would be offended by it, battery has occurred. An executive who gives an unwanted sexual caress to a secretary also commits this tort, even if he assumed that any normal female would be ecstatic over his attentions.

factual cause

If the defendant's breach led to the ultimate harm, it is the factual cause

duty

If the defendant could foresee that misconduct would injure a particular person, he probably has a duty to her. Special duties exist for people on the job, landowners, and employers.

Change in Circumstances After the agency agreement is negotiated, circumstances may change.

If these changes are significant enough to undermine the purpose of the agreement, the relationship ends automatically. For example: -war -change of law -loss or destruction of subject matter

There is a collision between cars driven by Candy and Zeke. The evidence is that Candy is about 25 percent responsible, for failing to stop quickly enough, and Zeke is about 75 percent responsible, for making a dangerous turn. Candy is most likely to win: a lawsuit for battery. a lawsuit for negligence in a comparative negligence state. a lawsuit for negligence in a contributory negligence state. a lawsuit for strict liability. a lawsuit for assault.

In a contributory negligence state, a plaintiff even 1 percent responsible for the harm loses. Candy was 25 percent responsible. She can win only in a comparative negligence state.

CONTRIBUTORY AND COMPARATIVE NEGLIGENCE

In a contributory negligence state, a plaintiff who is even slightly responsible for his own injury recovers nothing; in a comparative negligence state, the jury may apportion liability between plaintiff and defendant.

While on a business trip, Trevor went sightseeing on his day off. Although company policy forbade talking on a cell phone while driving, Trevor did answer his phone while in his car. Distracted, he crashed into Olivia's house, causing substantial damage. Was his employer liable for the damage?

In a similar case, the court ruled that the employer was liable because it is foreseeable that traveling employees will go sightseeing and, therefore, companies should include this potential liability as a cost of doing business. The fact that the employer's policy prohibits talking on a cell phone while driving does not protect the company from liability if an employee violates that policy. The employer should not have hired such a disobedient worker.

principle

In an agency relationship, the person for whom an agent is acting. a person who has someone else acting for him

agent

In an agency relationship, the person who is acting on behalf of a principal. a person who acts for someone else

Workers' comp statutes provide a fixed, certain recovery to the injured employee, no matter who was at fault for the accident

In return, employees are not permitted to sue their employers for negligence. The amounts allowed (for medical expenses and lost wages) under workers' comp statutes are often less than a worker might recover in court,

Smoking

In roughly 60 percent of the states, however, employers cannot prohibit workers from smoking.

Strict Liability for Defective Products

In strict liability, the injured person need not prove that the defendant's conduct was unreasonable. The injured person must show only that the defendant manufactured or sold a product that was defective and that the defect caused harm.

Question: Kathy was over 40 when SFI refused to hire her as an insurance agent; it said because she had no sales experience. But the job ad had not specified that sales experience was required. It turned out that when SFI hired agents from outside the company, it was much more likely to hire people under 40. But when promoting from within, it was much more likely to promote people over 40. Did SFI violate the ADEA when it refused to hire Kathy?

In the absence of specific comments about age, it is very difficult to show that age is the deciding factor. Kathy is likely to lose her case.

Undisclosed Principal

In the case of an undisclosed principal, the third party can recover from either the agent or the principal. A principal is undisclosed if the third party did not know of his existence. Suppose that Augusta simply asks to buy the horse herself, without mentioning that she is purchasing it for Parker. In this case, Parker is an undisclosed principal because Tracey does not know that Augusta is acting for someone else. Both Parker and Augusta are jointly and severally liable. As Exhibit 28.1 illustrates, the principal is always liable, but the agent is only liable when the principal's identity is unknown.

Unidentified Principal

In the case of an unidentified principal, the third party can recover from either the agent or the principal.

Daisy was the founder of an internet start-up company. Jay was her driver. One day, after driving Daisy to a board meeting, he went to the car wash. There, he told a woman that he worked for a money management firm. She gave him money to invest. On the way out of the car wash, he was so excited that he hit another customer's expensive car. Who is liable for Jay's misdeeds?

In this case, Daisy is liable for the damage to the car because that was a negligent physical tort within the scope of employment. But she is not liable for the investment money because Jay did not have authority (express, implied, or apparent) to take those funds.

fraid

Injuring another person by deliberate deception. a plaintiff claims that for many years a cigarette manufacturer fraudulently suggested its product was safe, knowing its assurances were deadly lies. Fraud is a tort, but it typically occurs during the negotiation or performance of a contract, and it is discussed in detail in Unit 3 on contracts.

trepass

Intentionally entering land that belongs to someone else or remaining on the land after being asked to leave. It is also trespass if you have some object, let's say a car, on someone else's property and refuse to remove it. "Intentionally" means that you deliberately walk onto the land. If you walk through a meadow, believing it to be a public park, and it belongs to a private owner, you have trespassed.

Section 8 prohibits unions from engaging in these ULPs:

Interfering with employees who are exercising their labor rights, Causing an employer to discriminate against workers as a means to strengthen the union, and Charging excessive dues.

Section 8 prohibits employers from engaging in the following unfair labor practices (ULPs):

Interfering with union organizing efforts, Dominating or interfering with any union, Discriminating against a union member, and Refusing to bargain collectively with a union

An employee is acting within the scope of employment if the act:

Is one that employees are generally responsible for, Takes place during hours that the employee is generally employed, Is part of the principal's business, Is similar to the one the principal authorized, Is one for which the principal supplied the tools, and Is not seriously criminal.

civil rights act 1866

It has been interpreted to prohibit racial discrimination in both private and public employment (except it does not apply to the federal government).

to establish justifcation

It was acting to protect an existing economic interest, such as its own contract with the third party; It was acting in the public interest, for example, by reporting to a government agency that a corporation was overbilling for government services; or The existing contract could be terminated at will by either party, meaning that although the plaintiff had a contract, the plaintiff had no long-term assurances because the other side could end it at any time.

Jenny asked a neighbor, Tom, to water her flowers while she was on vacation. For three days, Tom did this without incident, but on the fourth day, when he touched the outside faucet, he received a violent electric shock that shot him through the air, melted his sneakers and glasses, set his clothes on fire, and seriously burned him. Tom sued, claiming that Jenny had caused his injuries by negligently repairing a second-floor toilet. Water from the steady leak had flooded through the walls, soaking wires, and eventually causing the faucet to become electrified. You are Jenny's lawyer. Use one (and only one) element of negligence law to move for summary judgment.

Jenny is entitled to summary judgment because this was not a foreseeable type of injury. Even if she did a bad job of fixing the toilet, she could not reasonably have anticipated that her poor workmanship could cause electrical injuries to anyone.

reverse discrimination

Making an employment decision that harms a white person or a man because of his gender, color, or race.

Tortious interference with a prospective advantage

Malicious interference with a developing economic relationship. there need be no contract; the plaintiff is claiming outside interference with an expected economic relationship A plaintiff who has a definite and reasonable expectation of obtaining an economic advantage may sue a corporation that maliciously interferes and prevents the relationship from developing.

lockout

Management prohibits workers from entering the premises. -by withholding work and wages, the company hopes to pressure the union to bargain less aggressively. Most lockouts are legal.

Statutory Prohibition

Many states have outlawed strikes by public employees. The purpose of these statutes is to ensure that unions do not use public health or welfare as a weapon to secure an unfair bargaining advantage.

A principal must indemnify an agent for tort claims brought by a third party if the principal authorized the agent's behavior and the agent did not realize he was committing a tort.

Marisa owns all the apartment buildings on Elm Street, except one. She hires Rajiv to manage the units and tells him that, under the terms of the leases, she has the right to ask guests to leave if a party becomes too rowdy. But she forgets to tell Rajiv that she does not own one of the buildings, which happens to house a college sorority. One night, when the sorority is having a raucous party, Rajiv hustles over and starts ejecting the noisy guests. The sorority is furious and sues Rajiv for trespass. If the sorority wins its suit against Rajiv, Marisa would have to pay the judgment, plus Rajiv's attorney's fees, because she had told him to quell noisy parties and he did not realize he was trespassing.

At the end of a skateboard exhibition, one of the performers tossed a skateboard into the rowdy crowd. David rushed to catch the prize but was injured when his fellow spectators trampled him to snatch it away. What is the likely outcome if David sues the promoter of the skateboarding show for negligence? Answer McGarry v. Sax, Cal.Rptr.3d. The Court of Appeal held that McGarry could not state a cause of action for negligence because he was a willing participant in the competition for the skateboard deck and he assumed the risk of being injured.

McGarry v. Sax, Cal.Rptr.3d. The Court of Appeal held that McGarry could not state a cause of action for negligence because he was a willing participant in the competition for the skateboard deck and he assumed the risk of being injured.

sit- down strikes

Members stop working but remain at their job posts, blocking replacement workers. - this type of strike is illegal

compensatory damages

Money intended to restore a plaintiff to the position he was in before the injury. a successful plaintiff receives meaning an amount of money that the court believes will restore him to the position he was in before the defendant's conduct caused injury

Zack lives in a state that prohibits factory laborers from working more than 12 hours in any 24-hour period. The state legislature passed the law to cut down on accidents caused by fatigued workers. Ignoring the law, Zack makes his factory employees put in 14-hour days. Eventually, a worker at the end of a long shift makes a mistake and severely injures a coworker. The injured worker sues Zack. Which of the following terms will be most relevant to the case?

Negligence per se

negligence --products

Negligent design. The buyer claims that the product injured her because the manufacturer designed it poorly. For example, company engineers placed the Ford Pinto's fuel tank behind the axle, making the car more likely to explode in a rear-end collision. Negligence law requires a manufacturer to design a product free of unreasonable risks. The product does not have to be absolutely safe. An automobile that nearly guaranteed a driver's safety could be made, in theory, but it would be prohibitively expensive. Reasonable safety features must be built in, if they can be included at a tolerable cost. Negligent manufacture. The buyer claims that the design was adequate but the failure to inspect or some other careless conduct caused a dangerous product to leave the plant. Peter Vamos got sick after gulping his Diet Coke—only to discover that there were two AA batteries in the bottle. Because he was able to prove that the batteries were in the bottle when it left the plant, Vamos recovered from the bottler for his injuries. Failure to warn. A manufacturer is liable for failing to warn the purchaser or users about the dangers of normal use and also foreseeable misuse. However, there is no duty to warn about obvious dangers, a point evidently lost on some manufacturers. A Batman costume came with this statement: "For play only: cape does not enable user to fly."

During chemotherapy for bone cancer, Pete, a delivery man, is exhausted, nauseated, and weak. He has asked permission to come in later, work a shorter day, and limit his lifting to 10 pounds. Delivery people typically carry packages of up to 70 pounds. Does Pete's employer, Vulcan, have the right to fire him?

No, Vulcan must transfer the employee to another position, but only if one is vacant and he is able to perform it.

When Allain University was looking for a diversity officer, it decided it would only hire a person of color. Is this decision legal?

No, neither race nor color can be a BFOQ.

An employer placed a job advertisement for security guards, specifying that applicants had to be U.S. citizens. It also required applicants to present a Social Security card. Was this ad legal?

No. Title VII prohibits discrimination based on national origin. Also, the I-9 form lists the acceptable documents that can be used for verification. Employees have the right to present whatever documents they want from this list.

Reaches the user without substantial change

Obviously, if your roommate put the glass in the peanut butter thinking it was funny, neither the manufacturer nor the store is liable.

Solapere ran a job ad on Monster.com, which said that the company would only consider hiring people who either had a job or had been unemployed for less than six months. The average length of unemployment in the United States at that time was nine months, which meant that such a policy eliminated millions of job applicants. Did this ad violate federal law?

Older people and members of some minority groups have higher unemployment rates than other workers. Therefore, this practice could violate both Title VII and the ADEA unless Solapere could show that it was a job-related business necessity. Could it be a job-related business necessity?

Accommodating the Disabled Worker

Once it is established that a worker is disabled, employers may not discriminate on the basis of disability as long as the worker can, with reasonable accommodation, perform the essential functions of the job. An accommodation is unreasonable if it would create undue hardship for the employer

economic strike

One intended to gain wages or benefits. During an economic strike, an employer may hire permanent replacement workers. -may not discriminate against the strikers

nonphysical torts

One that harms only reputation, feelings, or wallet.

and most of them have adopted the following model:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The rule stated in Part (1) applies although: the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product from or entered into any contractual relation with the seller

Section 7 of the NLRA guarantees employees the right to:

Organize and join unions, Bargain collectively through representatives of their own choosing, and Engage in other concerted activities.

Fair Labor Standards Act: Minimum Wage, Overtime, and Child Labor

Passed in 1938, the Fair Labor Standards Act (FLSA) regulates wages and limits child labor nationally. It provides that hourly workers must be paid a minimum wage of $7.25 per hour, plus time and a half for any hours over 40 in one week.

but some of the duties of both the principal and agent continue even after the relationship ends:

Principal's duty to indemnify agent. Oscar must reimburse Marta for expenses she incurred before the agency ended. If Marta accumulated mileage on her car during her search for the perfect avocado, Oscar must pay her for gasoline and depreciation. But he owes her nothing for her expenses after the agency relationship ends. Confidential information. An agent is not entitled to use confidential information even after the agency relationship terminates. In the George Harrison case earlier in the chapter, the former agent was wrong to use confidential information to negotiate on his own behalf the purchase of the "He's So Fine" copyright.

Promises Made During the Hiring Process

Promises made to job applicants are generally enforceable, even if not approved by the company's top executives.

malice

Public personalities can win a defamation suit only by proving actual malice.

there are two categories of sexual harrasment

Quid pro quo. From a Latin phrase that means "one thing in return for another," Hostile work environment. An employee has a valid claim of sexual harassment if sexual talk and activity are so pervasive that they interfere with her (or his) ability to work.

Protected Categories

Race, color, religion, sex, or national origin.

Hostile Environment Based on Race

Reginald Jones was an African-American man who drove a truck for UPS. He began finding bananas and banana peels on his truck in the terminal. Some employees wore Confederate shirts and hats. After he reported these incidents to a supervisor, two other drivers came up to him one night in the parking lot holding a crowbar. They asked him if he had reported them to the supervisor. He again reported this event and again found banana peels on his truck. When Jones sued UPS, alleging a racially hostile work environment, the trial court granted UPS's motion for summary judgment. But the appellate court overturned this decision, ruling that the case should go to a jury because these events could, indeed, have created a hostile work environment

single recovery principle

Requires a court to settle the matter once and for all by awarding a lump sum for past and future expenses. cant return a year later saying oh btw i have more bills

When Southwest Airlines first started, it refused to hire male flight attendants because its strategy was to court its (mostly male) customers by promoting an image of "feminine spirit, fun, and sex appeal." Its ads featured women in provocative uniforms serving "love bites" (almonds) and "love potions" (cocktails). Its ticketing system featured a "quickie machine" to provide "instant gratification." Is this refusal to hire men a violation of Title VII?

Safety, privacy, and authenticity are three situations in which customer preference can be a BFOQ. None of these issues was a factor in this case. The court ruled against Southwest on the grounds that it was "not a business where vicarious sex entertainment is the primary service provided."

However, the courts recognize three situations in which employers may consider customer preference:

Safety. The Supreme Court ruled that a maximum security men's prison could refuse to hire women correctional officers. If a woman wanted to risk her life, that was her choice, but the court feared that an attack on her would threaten the safety of both male guards and inmates. Privacy. An employer may refuse to hire women to work in a men's bathroom, and vice versa. Authenticity. An employer may refuse to hire a man for a woman's role in a movie. In addition, a court ruled that Disney could fire an Asian man from the Norwegian exhibit at its Epcot international theme park, not because he was Asian, but because he was not culturally authentic. He did not have firsthand knowledge of Norwegian culture and did not speak Norwegian

Sexual harrassment

Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which are so severe and pervasive that they interfere with an employee's ability to work.

The required steps in a disparate treatment case are:

She belongs to a protected category under Title VII, She suffered adverse employment action, and This action occurred under conditions giving rise to an inference of discrimination.

Same-Sex Harassment

Suppose that one man makes unwelcome sexual overtures to another man in the workplace. The Supreme Court ruled that same-sex harassment is also a violation of Title VII Would you say or do this in front of your spouse or parents? What about in front of a colleague of the opposite sex? Would you like your behavior reported in your local newspaper? Does it need to be said or done at all?

conversion

Taking or using someone's personal property without consent Personal property is any possession other than land or structures permanently attached to land, such as houses. Priceless jewels, ratty sneakers, and sailboats are all personal property. If Stormy sails away in Jib's sailboat and keeps it all summer, that is conversion. Stormy owes Jib the full value of the boat. This, of course, is similar to the crime of theft. The tort of conversion enables a plaintiff to pursue the case herself, without awaiting a criminal prosecution, and to obtain compensation.

Termination by Agent and/or Principal The two parties—principal and agent—have these choices in terminating their relationship:

Term agreement. If the principal and agent agree in advance how long their relationship will last, they have a term agreement. For example: -Time. Alexandra hires Boris to help her add to her collection of guitars previously owned by rock stars. If they agree that the relationship will last two years, they have a term agreement. ----Achieving a purpose. The principal and agent can agree that the agency relationship will terminate when the principal's goals have been achieved. Alexandra and Boris might agree that their relationship will end when Alexandra has purchased ten guitars. -----Mutual agreement. No matter what the principal and agent agree at the start, they can always change their minds later on, so long as the change is mutual. If Boris and Alexandra originally agree to a two-year term, but Boris decides he wants to go to business school and Alexandra runs out of money after only one year, they can decide together to terminate the agency. Agency at will. If they make no agreement in advance about the term of the agreement, either principal or agent can terminate at any time. Wrongful termination. A principal and agent have a personal relationship. Hiring an agent is not like buying a book. You might not care which copy of the book you buy, but you do care which agent you hire. If an agency relationship is not working out, the courts will not force the agent and principal to stay together.

. In order to win a case, a plaintiff must prove three things:

That the defendants made false or misleading fact statements about the plaintiff's business. This could be a false comparative ad, showing the plaintiff's product to be worse than it is, or it could be a misleading ad, which, though literally accurate, is misleading about the defendant's own product. That the defendants used the statements in commercial advertising or promotion. In order to protect First Amendment rights of free speech, particularly political and social commentary, this act covers only commercial speech. A radio ad for beer could violate the Lanham Act; however, a radio ad urging that smoking be abolished in public places is not a commercial statement and cannot violate the act. That statements created the likelihood of harm to the plaintiff

Statutory protection for federal employees

The Civil Service Reform Act and the Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing. They also permit the award of back pay and attorney's fees to the whistleblower. This statute was used to prevent the National Park Service from disciplining two managers who wrote a report expressing concern over development in Yellowstone National Park.

Employers may not consider arrest records because that is not evidence of wrongdoing

The EEOC also discourages the use of credit checks because minorities tend to have worse credit ratings than whites.

lanham act

The Lanham Act provides broad protection against false statements intended to hurt another business The Lanham Act prohibits false statements in commercial advertising or promotion.

Once an agency relationship ends, the agent no longer has the authority to act for the principal. If she continues to act, she is liable to the principal for any damages he incurs as a result.

The Mediterranean fruit fly quarantine ended Marta's agency. If she sends Oscar the avocados anyway and he is fined for possession of a fruit fly, Marta must pay the fine.

strikes

The NLRA guarantees employees the right to strike, but with some limitations. A union has a guaranteed right to call a strike if the parties are unable to reach a CBA. A union may also call a strike to protest a ULP, or to preserve work that the employer is considering sending elsewhere. Note that the union can bargain away the right to strike. Indeed, management will generally insist that the CBA include a no-strike clause,

The Rehabilitation Act of 1973

The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the executive branch of the federal government, federal contractors, and entities that receive federal funds

FedEx refused to promote José Rodriguez to a supervisor's position because of his foreign accent and "how he speaks." Is FedEx in violation of the law?

The Sixth Circuit Court of Appeals ruled that this behavior could be illegal discrimination based on national origin because "accent and national origin are inextricably intertwined." The employer would have to show that the accent and speech characteristics would prevent the employee from performing the job.

The Social Security system pays benefits to workers who are retired, disabled, or temporarily unemployed, and to the spouses and children of disabled or deceased workers.

The Social Security program is financed through a tax on wages that is paid by employers, employees, and the self-employed.

Hughes Missile Systems fired Joel Hernandez because he tested positive for cocaine, which, not surprisingly, was a violation of workplace rules. He, however, had no hard feelings, and two years later, he reapplied for a job at Hughes. At the time, he provided evidence that he was clean. However, the company rejected his application because it had a policy against hiring anyone who had been fired for cause. Did the company violate the ADA?

The Supreme Court ruled that Hernandez could not prove his disparate treatment claim because its no-rehire rule was legitimate and not just a pretext for discrimination. And because Hernandez had not raised the issue of disparate impact in the lower courts, the Supreme Court refused to consider it. So he lost his case.

Pacific Express began operating as an airline in 1982. It had routes connecting western cities with Los Angeles and San Francisco, and, by the summer of 1983, it was beginning to show a profit. In 1983, United Airlines tried to enter into a cooperative arrangement with Pacific in which United would provide Pacific with passengers for some routes so that United could concentrate on its longer routes. Negotiations failed. Later that year, United expanded its routes to include cities that only Pacific had served. United also increased its service to cities in which the two airlines were already competing. By early 1984, Pacific Express was unable to compete and sought protection under bankruptcy laws. It also sued United, claiming interference with a prospective advantage. United moved for summary judgment. Comment.

The U.S. District Court gave summary judgment for United, and the Court of Appeals affirmed. Pacific Express, Inc. v. United Airlines, Inc., 959 F.2d 814, 1992 U.S. App. LEXIS 5139 (9th Cir. 1992). The primary issue was whether United was genuinely trying to compete, which it had the right to do, or was simply out to destroy Pacific, which would be interference with a prospective advantage (as well as an antitrust violation). United officials testified that the expanded routes would generate new connecting traffic for other San Francisco flights. That is a competitive purpose, which is legitimate, and enough to defeat Pacific's claim.

Confidential Information

The ability to keep secrets is important in any relationship, but especially a fiduciary relationship. Agents can neither disclose nor use for their own benefit any confidential information they acquire during their agency.

Ryder leased a truck to Florida Food Service. Powers, an employee, drove it to make deliveries. He noticed that the strap used to close the rear door was frayed, and he asked Ryder to fix it. Ryder failed to do so in spite of numerous requests. The strap broke, and Powers replaced it with a nylon rope. Later, when Powers was attempting to close the rear door, the nylon rope broke and he fell, sustaining severe injuries to his neck and back. He sued Ryder. The trial court found that Powers's attachment of the replacement rope was a superseding cause, relieving Ryder of any liability, and granted summary judgment for Ryder. Powers appealed. How should the appellate court rule?

The case was reversed and remanded for trial. Powers v. Ryder Truck, 625 So. 2d 979, 1993 Fla. App. LEXIS 10729 (Fla. Dist. Ct. App. 1993). Whether an event is a superseding cause is a jury question, unless it is so bizarre as to be entirely unforeseeable by the defendant. Here, even if Powers was negligent in attaching a nylon rope, that negligence was not so bizarre as to be unforeseeable by Ryder.

special duty: landowners

The common law applies special rules to a landowner for injuries occurring on her property. In most states, the owner's duty depends on the type of person injured. tresspassing, tresspassing children, licensee

The appearance policy at Starwood Hotels prohibited employees from wearing hairstyles that showed excessive scalp. When Carmelita Vazquez repeatedly came to work with her hair in cornrows, Starwood fired her for violating its policy. Vazquez was African-American and Hispanic. White women were allowed to wear their hair in braids. Vazquez filed a disparate treatment claim under Title VII.

The court found for Vazquez, believing that Starwood did have a discriminatory intent.

: Caudle worked at Betts Lincoln-Mercury dealer. During an office party, many of the employees, including president Betts, were playing with an electric auto condenser, which gave a slight shock when touched. Some employees played catch with it. Betts shocked Caudle on the back of his neck and chased him around. The shock later caused Caudle to suffer headaches, pass out, feel numbness, and eventually to require nerve surgery. He sued Betts for battery. Betts defended by saying that it was all horseplay and that he had intended no harm. Please rule.

The court held that it was irrelevant that Betts had shown no malice toward Caudle nor intended to hurt him. Betts intended the physical contact with Caudle, and even though he could not foresee everything that would happen, he is liable for all consequences of his intended physical action

most courts have adopted one of two tests for design and warning cases.

The first is consumer expectation. Here, a court finds the manufacturer liable for defective design if the product is less safe than a reasonable consumer would expect. If a smoke detector has a 3 percent failure rate and the average consumer has no way of anticipating that danger, effective cautions must be included, though the design may be defective anyway. Many other states use a risk-utility test. Here, a court must weigh the benefits for society against the dangers that the product poses.

Question: When Thomas Lussier filled out a Postal Service employment application, he did not admit that he had twice pleaded guilty to charges of disorderly conduct. Lussier suffered from Post Traumatic Stress Disorder (PTSD) acquired during military service. Because of this disorder, he sometimes had panic attacks that required him to leave meetings. He was also a recovered alcoholic and drug user. During his stint with the Postal Service, he had some personality conflicts with other employees. Once, another employee hit him. He also had one episode of "erratic emotional behavior and verbal outburst." In the meantime, a postal employee in Ridgewood, New Jersey, killed four colleagues. The postmaster general encouraged all supervisors to identify workers who had dangerous propensities. Lussier's boss discovered that he had lied on his employment application about the disorderly conduct charges and fired him. Is the Postal Service in violation of the law?

The court held that the Postal Service was in violation of the law because Lussier had been dismissed solely as a result of his disability. Clearly, he could perform his job with reasonable accommodation.

hostile work enviorment

The court ruled that the ADEA prohibits a hostile work environment based on age. A workplace is considered hostile if a reasonable person would find that intimidation, ridicule, and insult based on age are pervasive

Defective condition unreasonably dangerous to the user

The defendant is liable only if the product is defective when it leaves his hands. There must be something wrong with the goods. If they are reasonably safe and the buyer's mishandling of the goods causes the harm, there is no strict liability. If you attempt to open a soda bottle by knocking the cap against a counter and the glass shatters and cuts you, the manufacturer owes nothing. A carving knife can produce a lethal wound, but everyone knows that, and a sharp knife is not unreasonably dangerous. On the other hand, prescription drugs may harm in ways that neither a layperson nor a doctor would anticipate. The manufacturer must provide adequate warnings of any dangers that are not apparent.

Ahmed plans to transport a 25-foot boa constrictor from one zoo to another. The snake is locked in a special cage, approved by the American Zoo Society, in Ahmed's truck. Experts check the cage to be sure it is locked and entirely secure. Then Ahmed himself checks the cage. During the transport, his engine begins to fail. He pulls into the breakdown lane and sets up four flares, warning motorists of the stalled vehicle. Katy drives off the road and slams into Ahmed's truck. She is badly injured. Somehow the snake escapes and eats a champion show dog, worth $35,000. Katy and the dog's owner both sue Ahmed. What will be the result in each case?

The dog was killed by a dangerous snake. Transporting wild animals is an ultrahazardous activity, and Ahmed is strictly liable. His reasonable behavior will not save him. However, when he parked his truck in the breakdown lane, he did a reasonable job. Katy cannot prove that he breached his duty to her, and she loses.

Over the years, most courts have adopted one of two tests for design and warning cases.

The first is consumer expectation. Here, a court finds the manufacturer liable for defective design if the product is less safe than a reasonable consumer would expect. If a smoke detector has a 3 percent failure rate and the average consumer has no way of anticipating that danger, effective cautions must be included, though the design may be defective anyway. Many other states use a risk-utility test. Here, a court must weigh the benefits for society against the dangers that the product poses. Principal factors in the risk-utility test include:

ELEMENTS

The five elements of negligence are duty of due care, breach, factual causation, proximate causation, and damage.

state laws

The good news is that all 50 states have laws that protect whistleblowers from retaliation by their employers. The bad news is that the scope of this protection varies greatly from state to state. Most courts, however, prohibit the discharge of employees who report illegal activity. A Connecticut court held a company liable when it fired a quality control director who reported to his boss that some products had failed quality tests, in violation of state law

government contracts

The government may use affirmative action programs when awarding contracts only if it can show that the programs are needed to overcome specific past discrimination, they have time limits, and nondiscriminatory alternatives are not available.

False Imprisonment

The intentional restraint of another person without reasonable cause and without consent.

Mid-level Liability: Trespassing Children

The law makes exceptions when the trespassers are children. If there is some human-made thing on the land that may be reasonably expected to attract children, the landowner is probably liable for any harm. Daphne lives next door to a day-care center and builds a treehouse on her property. Unless she has fenced off the dangerous area, she is probably liable if a small child wanders onto her property and injures himself when he falls from the rope ladder to the treehouse.

Disparate Treatment and Disparate Impact

The plaintiff must offer prima facie evidence that the employer discriminated because of his disability. The employer must then offer a legitimate, nondiscriminatory reason for its action. To win, the plaintiff must now prove that the employer intentionally discriminated. She may do so either by showing that the reasons offered were simply a pretext or that a discriminatory intent is more likely than not. To win a disparate impact case, the plaintiff must show that a policy that looks neutral falls more harshly on a protected group and cannot be justified by business necessity

damages

The plaintiff must persuade the court that he has suffered harm that is genuine, not speculative.

injury

The plaintiff must show some injury, unless the case involves false statements about sexual behavior, crimes, contagious diseases, and professional abilities. In these cases, the law is willing to assume injury without requiring the plaintiff to prove it. Lies in these four categories amount to slander per se when they are spoken and libel per se when they are published.

Dispararte Treatment

The plaintiff must show that: He is 40 or older, He suffered an adverse employment action, He was qualified for the job for which he was fired or not hired, and He was replaced by a younger person. The employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons. The plaintiff must show that: The employer's reasons are a pretext; In fact, the employer intentionally discriminated; and But for the plaintiff's age, the employer would not have taken the action it did. Note that the standard of proof is tougher in an age discrimination case than in Title VII litigation because, under the ADEA, the plaintiff must show that age was not just one factor, it was the deciding factor.

under the ADEA a disparate impact case requires only two steps:

The plaintiffs must present a prima facie case that the employment practice in question excludes a disproportionate number of people 40 and older. The employer wins if it can show that the discriminatory decision was based on a reasonable factor other than age. One reasonable factor other than age is cost. Sometimes companies fire older workers because they are paid more, receive higher pension benefits, or generally cost more

Express Authority

The principal grants express authority by words or conduct that, reasonably interpreted, cause the agent to believe the principal desires her to act on the principal's account

abandoment

The principal is liable for the actions of the employee that occur while the employee is at work, but not for actions that occur after the employee has abandoned the principal's business. In other words, the employer is liable if the employee is simply on a detour from company business, but the employer is not liable if the employee is off on a frolic of his own.

Duty to Cooperate Principals have a duty to cooperate with their agent:

The principal must furnish the agent with the opportunity to work. If Lewis agrees to serve as Ida's real estate agent in selling her house, Ida must allow Lewis access to the house. It is unlikely that Lewis will be able to sell the house without taking anyone inside. The principal cannot unreasonably interfere with the agent's ability to accomplish his task. Ida allows Lewis to show the house, but she refuses to clean it and then makes disparaging comments to prospective purchasers. "I really get tired of living in such a dark, dreary house," she says. "And the neighborhood children are vicious thugs." This behavior would constitute unreasonable interference with an agent. The principal must perform her part of the contract. Once the agent has successfully completed the task, the principal must pay him, even if the principal has changed her mind and no longer wants the agent to perform. Ida is a 78-year-old widow who has lived alone for many years in a house that she loves. Her asking price is outrageously high because she does not really want to sell. She put her house on the market so that she could show it to all the nice young families who move to town. When Lewis actually finds a couple willing to pay Ida's price, she rejects the offer. But the contract had provided that Lewis would find a willing buyer at the asking price. Because he has done so, Ida must pay his real estate commission even if she refuses to sell her house.

When determining if agents are employees or independent contractors, courts consider whether:

The principal supervises details of the work. The principal supplies the tools and place of work. The agents work full time for the principal. The agents receive a salary or hourly wages, not a fixed price for the job. The work is part of the regular business of the principal. The principal and agents believe they have an employer-employee relationship. The principal is in business.

but-for causation

The retaliatory action would not have occurred but for the defendant's discriminatory intent

In the business of selling

The seller is liable only if she normally sells this kind of product. Suppose your roommate makes you a peanut butter sandwich and, while eating it, you cut your mouth on a sliver of glass that was in the jar. The peanut butter manufacturer faces strict liability, as does the grocery store where your roommate bought the goods. But your roommate is not strictly liable because he is not in the food business.

sexual oritentation

The specific language of Title VII does not include sexual orientation as a protected category, but some courts now interpret the statute to include it as one.

Texaco, Inc., and other oil companies sold mineral spirits in bulk to distributors, which then resold to retailers. Mineral spirits are used for cleaning. Texaco allegedly knew that the retailers, such as hardware stores, frequently packaged the mineral spirits (illegally) in used half-gallon milk containers and sold them to consumers, often with no warnings on the packages. Mineral spirits are harmful or fatal if swallowed. David Hunnings, aged 21 months, found a milk container in his home, swallowed the mineral spirits, and died. The Hunnings sued Texaco for negligence. The trial court dismissed the complaint, and the Hunnings appealed. What is the legal standard in a negligence case? Have the plaintiffs made a valid case of negligence? Remember that at this stage, a court is not deciding who wins, but what standard a plaintiff must meet in order to take its case to a jury. Assume that Texaco knew about the repackaging and the grave risk but continued to sell in bulk because doing so was profitable. (If the plaintiffs cannot prove those facts, they will lose even if they do get to a jury.) Would that make you angry? Does that mean such a case should go to a jury? Or would you conclude that the fault still lies with the retailer, the parents, or both?

The standard is whether the defendant acted as a "reasonable person" would have. The appeals court reversed, holding that the plaintiffs had made out a valid negligence claim and were entitled to take their evidence to a jury. Plaintiffs could argue, for example, that Texaco should have provided warnings of the danger, should have discouraged distributors from selling to retailers who illegally packaged the goods in used milk containers, and should have refused to sell to distributors who didn't cooperate. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1994 U.S. LEXIS 21833 (11th Cir. 1994).

communicated

The statement must be communicated to at least one person other than the plaintiff. It stands to reason: If no one else receives the defamatory message, there is no harm done. Defamation protects against injury to reputation, not hurt feelings.

falsity

The statement must be false. Felice, the website's author, was ultimately successful in his defense because he proved that Vogel did in fact fail to pay child support and Grannis had filed for bankruptcy. Making a true statement, no matter how mean, is not defamation.

Stuart lives in a state that sets a three-year statute of limitations on tort claims. His state also has an eight-year statute of repose. Stuart bought a television on June 1, 2010. On July 1, 2017, a manufacturing defect causes the television to malfunction and cause an electrical fire. Stuart waits for a year and then files a lawsuit on July 1, 2018. Will he win, or will his case be dismissed?

The statute of limitations' three-year period starts to run only when Stuart discovers the defect. Because he filed one year from the fire, the statute of limitations does not bar his recovery. But unfortunately, Stuart's lawsuit will fail because of the statute of repose. That eight-year limit begins to expire when Stuart buys the television, and the lawsuit is not filed for eight years and one month from the time of the sale. Stuart loses.

Hostile Environment Based on National Origin

The trial court agreed because Cerros had, after all, been promoted. However, the appeals court overturned the decision, finding for Cerros on the grounds that he had suffered a hostile work environment, which is in itself a violation of Title VII, even if there is no evidence of adverse employment actions

Fiduciary Relationship

The trustee must act in the best interests of the beneficiary. s obligated to act in good faith and candor, doing what is best for the beneficiary, rather than acting in his own best interest. Agents have a fiduciary duty to their principals.

principal factors in the risk-utility test include:

The value of the product, The gravity, or seriousness, of the danger, The likelihood that such danger will occur, The mechanical feasibility of a safer alternative design, and The adverse consequences of an alternative design.

Principal factors in the risk-utility test include:

The value of the product, The gravity, or seriousness, of the danger, The likelihood that such danger will occur, The mechanical feasibility of a safer alternative design, and The adverse consequences of an alternative design.

After the terrorist attacks of 9/11, the United States tightened its visa requirements. In the process, baseball teams discovered that 300 foreign-born professional players had lied about their age. (A talented 16-year-old is much more valuable than a 23-year-old with the same skills.) In some cases, the players had used birth certificates that belonged to other (younger) people. To prevent this fraud, baseball teams began asking prospects for DNA tests on them and their families to make sure they were not lying about their identity. Is this testing legal?

There have not been any cases yet, but commentators speculate that the testing would violate the Genetic Information Nondiscrimination Act. It seems clear the teams would be in violation if they used the information to predict whether a player is susceptible to disease.

elements for tortious interfernce w a contract

There was a contract between the plaintiff and a third party; The defendant knew of the contract; The defendant improperly induced the third party to breach the contract or made performance of the contract impossible; and There was injury to the plaintiff.

You are a vice-president in charge of personnel at a large manufacturing company. In-house detectives inform you that Gates, an employee, was seen stealing valuable computer equipment. Gates denies the theft, but you believe the detectives and fire him. The detectives suggest that you post notices around the company, informing all employees what happened to Gates and why because it will discourage others from stealing. While you are considering that, a phone call from another company's personnel officer asks for a recommendation for Gates. Should you post the notices? What should you say to the other officer?

These are difficult problems which a manager must think through carefully. Negative statements can lead to a defamation lawsuit. If you have irrefutable proof that Gates did steal, you are probably on safe ground. But if you doubt your ability to prove his theft, you must be very careful. If you state to the personnel officer precisely what you know about the theft, and nothing more, you are probably on safe ground. Even if you are incorrect, most courts will hold that you have qualified privilege to speak to someone who needs to know the truth. As long as you display no malice, you are not committing slander. Some managers, though, are extra careful and simply refuse to say anything in such a situation. As for posting the notices, you should not do it. The other employees have no need to know your allegations about Gates, and thus you have no qualified privilege to inform them. If you are wrong, it is libel, and juries are often very sympathetic to injured employees.

affirmative action

These programs remedy the effects of past discrimination.

Sarbanes-Oxley Act of 2002.

This act protects employees of publicly traded companies who provide evidence of fraud to investigators (whether in or outside the company). A successful plaintiff is entitled to reinstatement, back pay, and attorney's fees.

A supervisor reprimanded an employee for eating in a restaurant when he should have been at work. Later, the employee showed up at the supervisor's office and shot him. Although the employee previously had been violent, management withheld this information from supervisory personnel. Is the company liable for the supervisor's injury?

This employer may have been liable for negligently hiring a previously violent employee, and it certainly did an unreasonable job in retaining him without advising his supervisor of the earlier violence. The assault was easily foreseeable, and the employer is liable.

defamatory statements, element

This is a factual statement that is likely to harm another person's reputation. Because opinions are not factual, they do not generally count as defamatory statements. In the case from the opening scenario, the judge found that "********" was not a defamatory statement. The court interpreted that slang phrase as a general expression of contempt, not a fact. On the other hand, the accusations that Vogel owed child support payments and Grannis was bankrupt were defamatory statements because they were facts that could be proven true or false.

Awards for future harm (such as future pain and suffering) involve the court making its best estimate of the plaintiff's hardship in the years to come

This is not an exact science. If the judgment is reasonable, it will rarely be overturned. Ethel Flanzraich, age 78, fell on stairs that had been badly maintained. In addition to her medical expense, the court awarded her $150,000 for future pain and suffering. The day after the court gave its award, Ms. Flanzraich died of other causes. Did that mean her family must forfeit that money? No. The award was reasonable when made and had to be paid.

Has exercised all possible care.

This is the heart of strict liability, which makes it a potent claim for consumers. It is no defense that the seller used reasonable care. If the product is dangerously defective and injures the user, the seller is liable even if it took every precaution to design and manufacture the product safely. Suppose the peanut butter jar did in fact contain a glass sliver when it left the factory. The manufacturer proves that it uses extraordinary care in keeping foreign particles out of the jars and thoroughly inspects each container before it is shipped. The evidence is irrelevant. The manufacturer has shown that it was not negligent in packaging the food, but reasonable care is irrelevant in strict liability cases.

Disparate Treatment

To prove a disparate treatment case, the plaintiff must show that she was treated less favorably than others because of her sex, race, color, religion, or national origin.

The Family and Medical Leave Act (FMLA) guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or a serious health condition of their own or in their immediate family

This statute defines an immediate family member as a spouse, child, or parent—but not a sibling, grandchild, or in-law

The Rehabilitation Act of 1973

This statute is enforced by the EEOC (for claims against the executive branch of the federal government), the Department of Labor (for claims against federal contractors), and the Department of Justice (for claims against entities that receive federal funds).

Retaliation

Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a claim under the statute, or take part in an investigation or hearing. However, a defendant can defeat a retaliation claim by showing that there were other, nondiscriminatory reasons for his action.

Generally, a store may detain a customer or worker for alleged shoplifting provided there is a reasonable basis for the suspicion and the detention is done reasonably

To detain a customer in the manager's office for 20 minutes and question him about where he got an item is lawful. To chain that customer to a display counter for three hours and humiliate him in front of other customers is unreasonable and constitutes false imprisonment.

social media

To help prevent this type of liability, some employers keep the role of hiring separate from that of "cyber-vetting" and even hire outside consultants to do the checking.

Ultrahazardous Activity

Ultrahazardous activities include using harmful chemicals, operating explosives, keeping wild animals, bringing dangerous substances onto property, and a few similar activities where the danger to the general public is especially great. A defendant engaging in an ultrahazardous activity is almost always liable for any harm that results. Plaintiffs do not have to prove duty or breach or foreseeable harm. But now imagine that the pig is jolted off the window ledge by a company engaged in an ultrahazardous activity. Sam's Blasting Co. sets off a perfectly lawful blast to clear ground for a new building down the street. When the pig is startled and falls, the blasting company is liable. Even if Sam took extraordinary care, it will do him no good at trial. The "reasonable person" rule is irrelevant in a strict liability case. If the court rules that the activity was ultrahazardous, the plaintiff is assured of winning. If the court rules that it was not ultrahazardous, the plaintiff must prove all elements of negligence.

attractivness

Unattractiveness is not a protected category under Title VII

mental disability

Under EEOC rules, physical and mental disabilities are to be treated the same. Physical ailments such as diabetes and deafness may sometimes be easier to diagnose, but psychological disabilities are also covered by the ADA. Among other accommodations, the EEOC rules indicate that employers should be willing to put up barriers to isolate people who have difficulty concentrating, offer flexible hours to allow for therapy, or provide detailed day-to-day feedback to those who need greater structure in performing their jobs.

In 1974, Congress passed the Employee Retirement Income Security Act (ERISA) to protect workers covered by private pension plans.

Under ERISA, employers are not required to establish pension plans, but if they do, they must follow these federal rules. The law was aimed, in particular, at protecting benefits of retired workers if their companies subsequently go bankrupt. The statute also prohibits risky investments by pension plans. In addition, the statute sets rules on the vesting of benefits. (An employer cannot cancel vested benefits; nonvested benefits are forfeited when the employee leaves.) Before ERISA, retirement benefits at some companies did not vest until the employee retired—if he quit or was fired before retirement, even after years of service, he lost his pension. Under current law, employee benefits normally must vest within five years of employment.

Genetic Information Nondiscrimination Act (GINA)

Under GINA, employers with 15 or more workers may not require genetic testing, or use information about genetic makeup or family medical history as a factor in hiring, firing, or promoting employees

The Civil Rights Act of 1964

Under Title VII of the Civil Rights Act of 1964, it is illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin

immigration

Under Title VII, it is illegal for employers to discriminate against noncitizens because "national origin" is a protected category. Therefore, employers should not ask about a job applicant's country of origin, but they are permitted to inquire if the person is authorized to work in the United States. If the applicant says, "Yes," the interviewer cannot ask for evidence until the person is hired. At that point, the employer must complete an I-9 form—Employment Eligibility Verification—within three days. This form lists the acceptable documents that can be used for verification. Employees have the right to present whichever documents they want from the list of acceptable items. The employer may not ask for some other document. The I-9 form must be kept for three years after the worker is hired or one year after termination.

Private Employers

Under federal law, private employers are permitted to test job applicants and workers for alcohol and illegal drugs.

Age Discrimination in Employment Act

Under the Age Discrimination in Employment Act (ADEA), an employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person's employment opportunities because he is 40 or older his retirement rule does not apply in some jobs, such as police officer, airline pilot, and top-level corporate executive

equal pay act 1963

Under the Equal Pay Act, a worker may not be paid at a lesser rate than employees of the opposite sex for equal work

Pregnancy Discrimination Act

Under the Pregnancy Discrimination Act, an employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant. -cannot fire a women if she has an abortion

Exclusivity

Under §9 of the NLRA, a validly recognized union is the exclusive representative of the employees. This means that the union represents all of the designated employees, even if a particular worker does not want to be included, has not joined the union, or has not paid dues. The company may not bargain directly with any employee in the group, nor with any other organization representing the designated employees.

Campaign

Union organizers talk with employees and try to persuade them to form a union. The organizers may be employees of the company, who simply chat with fellow workers about unsatisfactory conditions; or a union may send nonemployees of the company to hand out union leaflets to workers as they arrive and depart from work. An employer cannot prohibit workers from using their already existing company email accounts to talk about union issues during nonworking time. However, an employer may restrict organizing discussions if they interfere with business. A worker on a moving assembly line has no right to walk away from his task to talk with other employees about organizing a union;

Conflict of Interest between Two Principals

Unless otherwise agreed, an agent may not act for two principals whose interests conflict. Suppose Travis represents both director Steven Spielberg and actor Jennifer Lawrence. Spielberg is casting the title role in his new movie, Nancy Drew: Girl Detective, a role that Lawrence covets. Travis cannot represent these two clients when they are negotiating with each other unless they both agree to let her. The following Exam Strategy illustrates the dangers of acting for two principals at once.

Implied Authority

Unless otherwise agreed, authority to conduct a transaction includes authority to do acts that are reasonably necessary to accomplish it The principal does not have to micromanage the agent. After David inherits a house from his grandmother, he hires Nell to auction off its contents. She advertises the event, rents a tent, and generally does everything necessary to conduct a successful auction. After withholding her expenses, she sends the balance to David. Totally outraged, he calls her phone, "How dare you buy ads and rent a tent? I never gave you permission! I absolutely refuse to pay these expenses!" David is wrong. A principal almost never gives an agent absolutely complete instructions. Unless some authority is implied, David would have had to say, "Open the car door, get in, put the key in the ignition, drive to the store, buy stickers, mark an auction number on each sticker, ..." and so forth. To solve this problem, the law assumes that the agent has authority to do anything that is reasonably necessary to accomplish her task.

Mark is furious because his girlfriend, Denise, just told him she is leaving him. He never saw it coming. On the sidewalk, he picks up a rock and hurls it at Denise's head. She does see it coming, and she ducks. The rock misses Denise but hits Terrance (who never saw it coming) in the back of his head. Denise and Terrance both sue Mark for assault and for battery. Outcomes?

Was Denise touched? No. Did she fear an imminent battery? Yes. Denise wins a suit for assault but loses one for battery. Now Terrance: Was he touched? Yes. Did he fear an imminent battery? No. Terrance wins a suit for battery but loses one for assault.

the Teamsters Union is attempting to organize the drivers at We Haul trucking company. Workers who favor a union have been using the lunchroom to hand out petitions and urge other drivers to sign authorization cards. The company posts a notice in the lunchroom: "Many employees do not want unions discussed in the lunchroom. Out of respect for them, we are prohibiting further union efforts in this lunchroom." Is this sign legal?

We Haul has violated the NLRA. The company has the right to urge employees not to join the union. However, it may not prevent the union from talking with employees. Even assuming the company is correct that some employees do not want unions discussed, it has no right to prohibit such activities.

Negligence

We might call negligence the "unintentional" tort because it concerns harm that arises by accident

undue hardship

What constitutes undue hardship is the subject of much litigation. Many courts hold that employers may use cost-benefit analysis—they are not required to make an expensive accommodation that provides little benefit. Nor are they required to provide identical working conditions for all employees. A woman who was wheelchair-bound asked that her employer lower the sink in the kitchenettes that were being built in her building. Otherwise, she would have to use the bathroom sink which, she felt, segregated and stigmatized her. The cost to lower the kitchen sinks ranged from as much as $2,000 (to do all the sinks in the building) to as little as $150 (for just the sink on her floor). The court ruled that the employer had no obligation to provide identical conditions and that it had already made a reasonable accommodation by lowering the sink in the bathroom. Although the employer could, in theory, afford this request, it did not have an obligation to spend so much money for so little benefit.

When Shiloh interviewed for a sales job at a medical supply company, the interviewer promised that she would only have to sell medical devices, not medications. Once she began work (as an employee at will), Shiloh discovered that the sales force was organized around regions, not products, so she had to sell both devices and drugs. When she complained to her boss over lunch in the employee cafeteria, he said in a loud voice, "You're a big girl now—it's time you learned that you don't always get what you want." He then fired her on the spot. Does she have a valid claim against the company?

When Shiloh interviewed for a sales job at a medical supply company, the interviewer promised that she would only have to sell medical devices, not medications. Once she began work (as an employee at will), Shiloh discovered that the sales force was organized around regions, not products, so she had to sell both devices and drugs. When she complained to her boss over lunch in the employee cafeteria, he said in a loud voice, "You're a big girl now—it's time you learned that you don't always get what you want." He then fired her on the spot. Does she have a valid claim against the company?

Negligence Per Se

When a legislature sets a minimum standard of care for a particular activity, in order to protect a certain group of people, and a violation of the statute injures a member of that group, the defendant has committed negligence per se.

Replacement Workers

When employees go on strike, management has the right to use replacement workers to keep the business operating. What about after the strike ends? May the employer offer the replacement workers permanent jobs, or must the company give union members their jobs back? It depends on the type of strike.

slander per se

When oral statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject's reputation.

No contractual relation

When two parties contract, they are in privity. Note that privity only exists between the user and the person from whom she actually bought the goods, but in strict liability cases, privity is not required. Suppose the manufacturer that made the peanut butter sold it to a distributor, which sold it to a wholesaler, which sold it to a grocery store, which sold it to your roommate. You may sue the manufacturer, distributor, wholesaler, and store, even though you had no privity with any of them.

libel per se

When written statements relate to criminal or sexual conduct, contagious diseases, or professional abilities, they are assumed to be harmful to the subject's reputation.

A worker who quits voluntarily or is fired for just cause is ineligible for unemployment benefits

While receiving payments, she must make a good-faith effort to look for other employment.

The National Labor Relations Act (NLRA or Wagner Act) ensures the right of workers to form unions and encourages management and unions to bargain collectively and productively

With the enactment of the NLRA, Congress put an end to any notion that unions were inherently illegal.

Elements Not Required for an Agency Relationship

Written agreement. In most cases, an agency agreement does not have to be in writing. An oral understanding is valid, except in one circumstance—the equal dignities rule. According to this rule, if an agent is empowered to enter into a contract that must be in writing, then the appointment of the agent must also be written. For example, under the Statute of Frauds, a contract for the sale of land is unenforceable unless in writing, so the agency agreement to sell land must also be in writing. Formal agreement. The principal and agent need not agree formally that they have an agency relationship. They do not even have to utter the word agent. So long as they act like an agent and a principal, the law will treat them as such. Compensation. An agency relationship need not meet all the standards of contract law. For example, a contract is not valid without consideration, but an agency agreement is valid even if the agent is not paid.

libel

Written defamation Suppose a newspaper accuses a local retail store of programming its cash registers to overcharge customers when the store has never done so

Gregg Young, the CEO of BJY Inc., insisted on calling Mamdouh El-Hakem "Manny" or "Hank" even when El-Hakem asked him not to. El-Hakem was of Arab heritage. Young argued that a "Western" name would increase El-Hakem's chances for success and would be more acceptable to BJY's clientele. Does this behavior violate the law?

Yes, Young violated Title VII by discriminating against El-Hakem on the basis of his national origin. Yes, Young was creating a hostile work environment.

The Sisters of Charity was an order of nuns in New Jersey. Faced with growing healthcare and retirement costs, they decided to sell off a piece of property. The nuns soon found, however, that the world is not always a charitable place. They agreed to sell the land to Linpro for nearly $10 million. But before the deal closed, Linpro signed a contract to resell the property to Sammis for $34 million. So, you say, the sisters made a bad deal. There is no law against that. But it turned out that the nuns' law firm also represented Linpro. Their lawyer at the firm, Peter Berkley, never told the sisters about the deal between Linpro and Sammis. Was that the charitable—or legal—thing to do?

You know that an agent is not permitted to act for two principals whose interests conflict. Here, Berkley was working for the nuns, who wanted the highest possible price for their land, and Linpro, who wanted the lowest price. Berkley has violated his duty of loyalty.

*IIED case* Turley v ISG Lackawanna Inc

a black employee people could call him a ****ing n-word. and played monkey noises

tort

a tort is a violation of duty imposed by the civil law

*libel per se case* new york times co v sullivan

ad accused police of brutality The New York Times appealed to the U.S. Supreme Court, arguing that the ad was protected by the First Amendment and the evidence did not support such an award. The rule from The New York Times case is that a public official can win a defamation case only by proving the defendant's actual malice, that is, that the defendant knew the statement was false or acted with reckless disregard of the truth.

Employee Handbooks

an employee handbook creates a contract

All three elements—consent, control, and a fiduciary duty

are necessary to create an agency relationship

Scope of employment cases raise two major issues:

authorization and abandonment.

sm sneaks up on Tom, hits him with a baseball bat, and knocks him unconscious. Tom never saw Sam coming. He wakes up with a horrible headache. Which of the following torts has Sam committed?

battery

cooling off period

before striking to termintae or modify a CBA, a union must give management 60 days notice

The second element of a plaintiff's negligence case is

breach of duty

The NLRA permits the parties to bargain almost any subject they wish

but it requires them to bargain wages, hours, and other terms and conditions of employment. An employer may not unilaterally make changes in these areas without first bargaining with the union. Conditions of employment include: benefits, order of layoffs and recalls, production quotas, work rules (such as safety practices), retirement benefits, and on-site food service and prices.

defamatory statements

can be written or spoken

interview question

cant b weird

All of these activities are illegal if used against anyone in a protected category.

disparate treatment, disparate impact, hostile environment, and retaliation.

Employer Liability for Harassment

employees liable and company is also when: *if compnay knew or should of known *Even if the company was unaware of the misbehavior, it is nonetheless liable if the victimized employee suffered a "tangible employment action" such as firing, demotion, or reassignment. *If the company was unaware of the behavior and the victimized employee did not suffer a tangible employment action, the company is still liable unless it can prove that it used reasonable care to prevent and correct harassing behavior, and the employee unreasonably failed to take advantage of the complaint procedure or other preventive opportunities provided by the company.

The law of defamation concerns

false statements that harm someone's reputation.

Principals are liable

for an agent's acts because they exercise control over that person ie:William Stanford was an employee of the Agency for International Development. While on his way home to Pakistan to spend the holidays with his family, his plane was hijacked and taken to Iran, where he was killed. Stanford had originally purchased a ticket on Northwest Airlines but had traded it for a seat on Kuwait Airways (KA). The airlines had an agreement permitting passengers to exchange tickets from one to the other. Stanford's widow sued Northwest on the theory that KA was Northwest's agent. The court found, however, that no agency relationship existed because Northwest had no control over KA. Northwest did not tell KA how to fly planes or handle terrorists; therefore, it should not be liable when KA made fatal errors. Not only must an agent and principal consent to an agency relationship, but the principal also must have control over the agent.

sex

gender must be irrelevant to employment decisions Title VII forbids sexual stereotyping

The NLRA guarantees the right of employees to engage in concerted action for mutual aid or protection

gives union strnegth

Andrew Greene sued Paramount Pictures for defamation arising out of the film "The Wolf of Wall Street." Although the film did not use his name, Greene alleged that the fictitious toupee-wearing character Nicky "Rugrat" Koskoff was based on him. The film portrayed Rugrat as a "criminal, drug user, degenerate, depraved, and devoid of any morality or ethics." What would Greene need to prove to be successful in his claim? Answer Greene v. Paramount Pictures, et al., 138 F. Supp. 3d 226 (2015). To prove defamation, a plaintiff must prove a defamatory statement that was false and communicated to others. He must also prove that the statement caused injury. District Judge denied Paramount's motion to dismiss the lawsuit as to defamation. Even though the movie did not use Greene's name or image, the court found that making the connection to the plaintiff was reasonable and the likeness "unmistakable." Greene would have to prove the elements above.

greene v. Paramount Pictures, et al., 138 F. Supp. 3d 226 (2015). To prove defamation, a plaintiff must prove a defamatory statement that was false and communicated to others. He must also prove that the statement caused injury. District Judge denied Paramount's motion to dismiss the lawsuit as to defamation. Even though the movie did not use Greene's name or image, the court found that making the connection to the plaintiff was reasonable and the likeness "unmistakable." Greene would have to prove the elements above.

tortious interference with business relations

healthy competition becomes illegal interference

Plessy v. Ferguson,

in which the Supreme Court upheld the constitutionality of a Louisiana law that prohibited blacks from riding in railroad cars reserved for whites. Blacks were provided with "separate but equal" cars.

Jane writes an article for a newspaper reporting that Ann was arrested for stealing a car. The story is entirely false. Ann is not a public figure. Which of the following torts has Jane committed?

libel

For this question, assume the same facts as in question 4. Now determine which of the following can be considered a proximate cause of Carl's injuries.

mark

economic damages

meaning lost wages, medical expenses, and other measurable losses.

Defenses to Charges of Discrimination

merit, seniority, bona fide occupational qualification

The Norris-LaGuardia Act prohibits federal court injunctions in nonviolent labor disputes

o longer could management stop a strike merely by saying the word strike. By taking away the injunction remedy, Congress was declaring that workers should be permitted to organize unions and to use their collective power to achieve legitimate economic ends. This statute led to explosive growth in union membership.

Employers have the right to prohibit guns in the workplace but, in almost half the states, Bring Your Gun to Work Laws prevent companies from banning firearms in their parking lot

ome states also prohibit employers from asking workers if they have a firearm in their car, or searching their vehicles for guns. Some states further prevent employers from discriminating against workers who own firearms

product liability

omeone who is injured by a defective product may have claims in both negligence and strict liability.

slander

oral defamation someone tells other ppl someone sells drugs even tho they dont

noneconomic damages

pain and suffering and other losses that are difficult to measure—are capped at some level, such as $500,000.

A principal must indemnify an agent for any expenses or damages reasonably incurred in carrying out his agency responsibilities.

peace Baptist Church of Birmingham, Alabama, asked its pastor to buy land for a new church. He paid part of the purchase price out of his own pocket, but the church refused to reimburse him. Although the pastor lost in church, he won in court

Social Media Policies

policies violate the NLRA if they unreasonably limit employee speech about work conditions. she intended to tell their boss that other employees were slackers. Marianna posted a Facebook message complaining about Lydia and asking other employees how they felt. Four of them posted negative comments about Lydia. All of the complainers were fired on the grounds that they had violated the company's anti-bullying policy. But the court ruled that the NLRA protected their speech because it was concerted activity dealing with working conditions Note, however, that to be protected, the employee speech must be "concerted."

The Fifth Amendment to the Constitution

prohibits the federal government from depriving individuals of "life, liberty, or property" without due process of law. The Fourteenth Amendment prohibits state governments from violating an individual's right to due process and equal protection. The courts have interpreted these provisions to prohibit employment discrimination by federal, state, and local governments.

In tort cases, the passage of time provides a seller with two possible defenses:

statutes of limitations and statutes of repose.

justifcation

special circumstance that made conduct fair

state farm v campell

statefarm acted in their best interest in car accident

"supervisors" are not employees and do not have the right to join a union

supervisor: Anyone with the authority to make independent decisions on hiring, firing, disciplining, or promoting other workers.

concerted action

tactics taken by union members to gain bargaining advantage.

Gender Identity and Expression

the EEOC ruled that discriminating against someone for being transgender is a violation of Title VII and about one-third of the states and hundreds of cities prohibit gender identity and expression discrimination. However, the Justice Department recently announced that Title VII does not apply to gender identity or transgender status. Ultimately the Supreme Court will have to decide the scope of Title VII.

Exxon Valdez case

the Supreme Court placed a severe limit on a certain type of punitive award. It is unclear how influential the decision will be because the case arises in the isolated area of maritime law, which governs ships at sea. Nonetheless, the justices wrote at length about punitive awards, and the decision may reverberate in future holdings. This is what happened. ship dumped 11 million gallons of oil in ocean

The principal is liable for the acts and statements of his agent if

the agent had authority or the principal ratified the acts of the agent.

A third party is not bound to the contract with an undisclosed principal if

the contract specifically provides that the third party is not bound to anyone other than the agent or the agent lies about the principal because she knows the third party would refuse to contract with him.

Benzaquin had a radio talk show. On the program, he complained about an incident in which state trooper Fleming had stopped his car, apparently for lack of a proper license plate and safety sticker. Benzaquin explained that the license plate had been stolen and the sticker had fallen onto the dashboard, but Fleming refused to let him drive away. Benzaquin and two young grandsons had to find other transportation. On the show, Benzaquin angrily recounted the incident, and then described Fleming and troopers generally: "we're not paying them to be dictators and Nazis"; "this man is an absolute barbarian, a lunkhead, a meathead." Fleming sued Benzaquin for defamation. Comment.

the court ruled in favor of Benzaquin because a reasonable person would understand the words to be opinion and ridicule. They are not statements of fact because most of them could not be proven true or false. A statement like "dictators and Nazis" is not taken literally by anyone.

Because res ipsa loquitur dramatically shifts the burden of proof from plaintiff to defendant, it applies only when

the defendant had exclusive control of the thing that caused the harm, the harm normally would not have occurred without negligence, and the plaintiff had no role in causing the harm.

However, an employer has the right to monitor workers' electronic communications if

the employee consents; the monitoring occurs in the ordinary course of business; or in the case of email, if the employer provides the computer system.

res ipsa loquitur

the facts imply that the defendant negligence caused the accident

covenat if good faith and fair dealing

the jury believed it had violated the covenant of good faith and fair dealing by firing Fleming to prevent him from exercising his options. It awarded him $1.6 million in damages

To establish consent

the principal must ask the agent to do something, and the agent must agree. ie:Steven James sped down a highway and crashed into a car that had stalled on the roadway, thereby killing the driver. In a misguided attempt to help his client, James's lawyer took him to the local hospital for a blood test. Unfortunately, the test confirmed that James had indeed been drunk at the time of the accident. The attorney knew that if this evidence was admitted at trial, his client would soon be receiving free room and board from the Massachusetts Department of Corrections. So at trial, the lawyer argued that the blood test was protected by the client-attorney privilege because the hospital had been his agent and therefore a member of the defense team. The court disagreed, however, holding that the hospital employees were not agents for the lawyer because they had not consented to act in that role. The court upheld James's conviction of murder in the first degree by reason of extreme atrocity or cruelty

a court must consider three "guideposts":

theprehensibility of the defendant's conduct, The ratio between the harm suffered and the award, and The difference between the punitive award and any civil penalties used in similar cases.

gig economy

there is an app for that. The good news for workers? Flexibility (work for any company any time) and low barriers to entry (a clean car and you are in business). The downside? No benefits, no job security, no right to join a union, often low wages. Inevitably the issue arises: Are these freelance workers independent contractors or employees? The companies themselves have an incentive to classify their workers as independent contractors because then they not only avoid tort liability, but also have no obligation to pay the minimum wage or overtime, provide health care or pay taxes such as unemployment, Social Security, and Medicare.

The FLSA also prohibits "oppressive child labor,"

which means that children under 14 may work only in agriculture, entertainment, a family business, babysitting, or newspaper delivery. Fourteen- and fifteen-year-olds are permitted to work limited hours after school in nonhazardous jobs, such as retail. Sixteen- and seventeen-year-olds may work unlimited hours in nonhazardous jobs.

The National Labor Relations Act (NLRA) is well known as legislation that protects employees' right to unionize. However, many people do not realize that the NLRA protects all employees

who engage in collective activity relating to work conditions and who are not supervisors.

The statute of limitations requires that a lawsuit be brought

within a specified period. These time limits vary from state to state, ranging from one year to five years, beginning when the defect is discovered or should have been discovered.