Law exam 3
Apply the doctrine of respondeat superior and identify its impact and limits.
- (Latin for let the master answer); a common law doctrine under which a principal (employer) is liable for the tortious action of the servant or agent (employee) when that act resulted in physical harm or injury and occurred within the agent's scope of employment; form of vicarious liability - Physical Injury Requirement - as a general rule, if the employee's misconduct causes physical harm to a third party's person or property, the employer is liable for both the injury and any related economic losses. However, if the employee's misconduct results in harm only to emotional state, reputation, or purely economic loss, RS does not apply - Scope of employment - the doctrine of RS stands for the proposition that a principal (employer) is liable for the servant's or agent's (employee's) tort when that act resulted in physical harm or injury and occurred within the employee's scope of employment - Exception and within scale to RS - frolics (occurs when an agent, during a normal workday, does something purely for her own reasons that are unrelated to her employment) and detour (conduct classified as a small-scale deviation that is normally expected in the workday and, therefore, is within the ambit of RS. Going- and -coming rule - rule whereby employers are generally not liable for tortious acts committed by employees while on their way to and from work.
Describe the provisions of the Age Discrimination in Employment Act (ADEA), the Equal pay act and the Americans with Disabilities Act (ADA) and their impact on business operation
- Age Discrimination in Employment Act (ADEA): employers that have 20 or more employees are prohibited from discriminating against employees on the basis of their age once employees have reached age 40. Protects employees from being discriminated against them in favor of a substantially younger employee (at least 10-year difference) - Equal Pay Act: law making it illegal for employers to pay unequal wages to men and women who perform substantially equal work. In court, a plaintiff must prove that (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar work conditions - Americans with Disabilities Act (ADA): a federal statute that seeks to eliminate discriminatory employment practices against disabled persons; requires that employers with 15 or more employees make reasonable accommodations for a disabled employee in the workplace as long as the accommodations do not cause the employer to suffer an undue hardship
Recognize, define, and give examples of an agency relationship.
- Agency is a legal relationship in which the parties agree, in some form, that one party will act as an agent for another party, called the principal, subject to the control of the principal. - Agent - one who agrees to act on behalf of another, a principal, to legally bind the principal in particular business transactions with third parties pursuant to an agency relationship. - Principal - an agent's master; the person from whom an agent has received instruction and authorization and to whose benefit the agent is expected to perform and make decisions pursuant to an agency relationship.
What is BFOQ?
- Bona fide occupational qualification: a provision in certain federal antidiscrimination statutes that allows discrimination based on religion, gender, or national origin when it can be shown that such discrimination is reasonably necessary to the business operation. - Race can't be used as a BFOQ - Examples of BFOQ are religion and gender
disparate treatment, mixed motives, and disparate impact
- Disparate treatment: McDonnell Douglas standard; theory of employment discrimination predicted on overt and intentional discrimination; includes being treated differently because of one's membership in a protected class. - Mixed Motives: Hopkins standard; theory of employment discrimination in which the cause of the adverse employment action was motivated by both legitimate and discriminatory motives. - Disparate Impact: Griggs; theory of employment discrimination in which employee evaluation techniques that are not themselves discriminatory have a different and adverse impact on the members of a protected class.
Differentiate between an economic strike and an unfair labor practices strike, Provide examples of illegal work stoppages vs legal strikes, Secondary boycott, wildcat strike, sit-in strike, cooling off period
- Employers have no legal obligation to rehire striking workers or provide retroactive pay in cases of a strike for economic reasons - If a strike is commenced due to unfair labor practices, the striking employees are entitled to immediate reinstatement with back pay once they unconditionally return to work - Wildcat strikes: when individual union members or small groups of union members go on strike for short bursts of time without union authorization, this is called a wildcat strike. Wildcat strikes are illegal, but sometimes the form of a wildcat strike can be subtle, as when several employees simultaneously use sick time to perpetrate a work stoppage or slowdown. - Sit-in strikes: any occupation of an employer's facility for the purpose of a work stoppage is illegal. - Strikes during cooling-off period: the NLRA allows a federal court to enforce a strike prohibition for a period of 80 days if a strike threatens national public health or security. During this cooling-off period, the gov't facilitates negotiations between the parties, and any strike during this time is illegal. - Secondary boycotts: efforts to increase the pressure on an employer involved in collective bargaining by directing a strike against a third party (such as a supplier or customer of the employer) is illegal. - Work stoppages: or slowdowns; are illegal, and employers may terminate employees, unionized or not, for engaging in illegal work stoppages
Define the term employment discrimination, articulate the origins of antidiscrimination law, and explain the role of the Equal Employment Opportunity Commission (EEOC).
- Employment discrimination: work-place related discrimination in the hiring process and treatment of employees; encompasses everything from promotions and demotions to work schedules, working conditions, and disciplinary measures. - The origin of antidiscrimination laws came from US Common law recognized virtually no protections for employees from discrimination based on race, color, gender, religion, national origin, age, disabilities and so on before 1963. For example, before the Equal Pay Act of 1963, employers could arbitrarily pay men and women, doing the same work, at different levels with no consequences. - Equal Employment Opportunity Commission (EEOC): a five-member federal administrative agency that administers congressional mandates that ensure adequate protection for victims of discrimination; accepts and investigates worker complaints and, in certain cases, will sue on behalf of employees
Explain the fundamentals and impact of the employment-at-will doctrine.
- Employment-at-will: deep-seated common law principle that employers have the right to terminate an employee with or without advance notice and with or without just case, subject to certain exceptions - Doesn't apply to employees with an express (labor contracts) or implied contract (employer acts in a manner that would lead a reasonable person to believe that the employer intended to offer the employee protection from termination without cause), courts have fashioned a common law exception, or there is some specific statutory protection against job termination (such as antidiscrimination laws)
Describe the main statutory protections for workers and regulations for employers in the areas of wages and hours, retirement, health care, sudden job loss, work-related injuries, workplace privacy and workplace safety, i.e. FSLA FMLA, COBRA, ERISA, FUTA, SSA, and worker's compensation statutes
- Fair Labor Standards Act (FSLA): a federal law intended to cover all employees engaged in interstate commerce; mandates payment of a minimum wage, a maximum 40-hour workweek, overtime pay, and restrictions on children working in certain occupations and during certain hours. - Employee Retirement Income Security Act (ERISA): a federal law consisting of a comprehensive set of laws and regulations that required employers to make certain disclosures related to investment risk, thus providing transparency for plan beneficiaries. - Social Security Act of 1935 (SSA): a federal law providing a broad set of benefits for workers, including retirement income; funded by mandatory employment taxes paid into a trust fund by both employer and employee and administered by the federal government. - Consolidated Omnibus Budget Reconciliation Act (COBRA): mandates that employers provide continuous coverage to any employee who has been terminated even if the worker was terminated for cause. COBRA requires that the employer provide the exact same health coverage for up to 18 months. It is important to not that COBRA does not require employers to pay for the health plan premiums of a former employee. The employee has full responsibility for payment of all insurance premiums and administrative fees. - Federal Unemployment Tax Act (FUTA): a federal law that established a state-administered fund to provide payments to workers who have suffered sudden job loss; funded through employment taxes shared by employer and employee. - Workers' compensation: state statutes that provide an employee who is injured in the course of employment with a partial payment in exchange for mandatory relinquishment of the employee's right to sue the employer for the tort of negligence; funded through employer-paid insurance policies.
List the benefits provided by federal law for workers who are in need of a leave for medical purposes or to care for an ill family member.
- Family and medical leave act: federal law that requires certain employers to give time off to employees to take care of their own or a family member's illness or to care for a newborn or adopted child; applies to employers who have 50 or more employees; employee must have worked for company for at least 12 months and have worked 1,250 hours during the past 12 months; employers must provide up to 12 weeks of unpaid leave to employee during the 12 month period; employee must give a 30 day notice - Protections: (1) employers are restricted from taking or threatening any adverse job action against the employee because of an FMLA leave; (2) upon returning from leave, employees are guaranteed employment in the same or a similar job at the same rate of pay; and (3) employers must reinstate an FMLA-leave employee immediately upon the employee's notification that the leave is over
Explain the process for creating an agency relationship and the impact of that relationship on the liability of the principal. min wage, OT, etc.
- First step in creating an agency relationship is for the principal to manifest (apparent and evident to the senses. In the context of agency law, courts apply an objective standard to determine whether the principal intended to that an agency be created) some offer to form an agency. - Consent occurs when an agent agrees to act for the principal - In addition to giving consent, the parties must have an understanding that the principal is in control of the agency relationship. The control need not be total or continuous and need not extend to the way the agent perform, but there must be some sense that the principal is defining the tasks and objectives of the agency relationship. - The law doesn't require any formal expression of an agency relationship btwn the parties. Most states don't require that the parties consent to the agency in writing. In fact, conduct alone can be sufficient basis for formation of the agency relationship and can create rights and obligations of the principal and agent. However, a minority of states have a statutory equal dignity rule that specifies the formalities for certain principal-agent transactions.
Explain the process for forming a certified labor union and the rights and duties of the NLRB
- Forming union: 1. Authorization cards: a group of employees, with a mutuality of interests, organizes an effort to have other workers sign authorization cards; 30% of the collective bargaining unit must sign in order to proceed to the next step. 2. Filing with NLRB: authorization cards are filed with the NLRB, and a formal union certification process begins when the NLRB sets a date for an election. 3. Campaign: union organizers campaign according to fair labor practices. Management is also permitted to engage in certain practices to campaign against unionization. 4. Election: entire bargaining unit vot4es to either elect or reject unionization. A simple majority is required to certify the union. 5. Certification or Rejection: if a simple majority voted for unionization, the union is certified. The employer must recognize the union as the exclusive bargaining representative of the workers and is required to bargain in good faith with the union thereafter. If a simple majority voted against unionization, the union is rejected.
List the two primary methods used to terminate agency relationships and give examples of each method.
- In general, an agency relationship can be terminated either through express acts or through operation of law - Express acts - acts by which an agency relationship is terminated; can be either simple communication of the desire to terminate the relationship, the expiration of a fixed term, or satisfaction of purpose. Can either be through revocation (termination by the principal) or renunciation (termination initiated by the agent) or expiration (method of ending an agency relationship whereby the parties agree to a fixed term for the relationship; time period (hires for a year) or an event (hires until injured worker returns) - Operation of law - destruction of essential subject matter of the relationship; agency relationship is terminated automatically if either the principal or the agent dies, files for bankruptcy, or does not have the requisite mental capacity to continue the relationship.
List and describe the protections afforded under the major federal antidiscrimination statutes and identify the protected classes and theories of discrimination under Title VII.
- Protected classes under Title VII: color, race, national origin, religion, gender, and pregnancy
What happens with the death of principal, etc.
- Through operation of law, an agency relationship is terminated automatically if either the principal or the agent dies, files for bankruptcy, or does not have the requisite mental capacity to continue the relationship
Apply the standards used in a sexual harassment claim and articulate ways to reduce liability for harassment.
- Unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are considered violations of Title VII if the conduct, (1) occurs in the context of explicit or implicit conditions of an individual's employment or as a basis for any employment decisions or (2) unreasonably interferes with an individual's work performance or creates an offensive work environment - Sexual harassment takes the form of a hostile work environment (theory of liability under title VII for sexual harassment that is of such a server and crude nature or is so pervasive in the workplace that it interferes with the victim's ability to do the job) LOOK AT PICTURE ON PHONE
List the sources of an agent's authority to bind the principal in contract and give examples of each source. Actual/apparent/ratification
1. Actual authority - a source of the agent's authority that occurs either when the parties expressly agree to create an agency relationship or when the authority is implied based on custom or the course of past dealings 2. Apparent authority - a source of the agent's authority that occurs when there is an appearance of legitimate authority to a third party rather than express authorization by the principal 3. Ratification - a retroactive source of the agent's authority that occurs when the principal affirms a previously unauthorized act by either (1) expressly ratifying the transaction or (2) not repudiating the act (i.e., the principal retains the benefits while knowing that they resulted from an unauthorized act by the agent)
List and apply the major defenses available to employers. Who bears the burden of proof for discrimination?
1. Business Necessity: a defense used to rebut disparate impact claims when a business can prove that a certain skill, ability, or procedure is absolutely necessary to the operation of the business. Discrimination is permitted even if a protected class is adversely affected. 2. Faragher/Ellerth Defense: is a judicially created affirmative defense whereby an employer may avoid vicarious liability by proving that a system was in place that was intended to deter, prevent, report, and correct any harassment. The employer must also prove that the employee failed to take advantage of the preventative or corrective opportunities that the employer provided. 3. Bona Fide Occupational Qualification (BDOQ): a provision in certain federal antidiscrimination statutes that allows discrimination based on religion, gender, or national origin when it can be shown that such discrimination is reasonably necessary to the business operation. 4. Seniority: defense for employers using a seniority system as the basis for certain job decisions.
Classify agents as either employees or independent contractors by applying the direction and control tests.
1. Employee agents - one of the three broad categories of agents: includes, generally, anyone who performs services for a principal who can control what will be done and how it will be done 2. Independent Contractor agents - one of the three broad categories of agents: includes, generally, anyone who performs services for a principal who has the right to control or direct only the result of the work and not the means and methods of accomplishing the result 3. Gratuitous agents - one of the three broad categories of agents: includes, generally, anyone who acts on behalf of a principal without receiving any compensation - The agent is classified based on the amount of direction and control that the principal has over the agent in terms of setting a work schedule, pay rate, and day-to-day supervision requirements. - In an employer-employee agent relationship, the employer principal typically sets work hours, decides what salary to pay, and exercises control over the employee agent's working conditions and responsibilities - Independent Contractors usually work based on a deadline but typically choose their own schedule to accomplish that deadline. In terms of payment, independent contractors usually send an invoice on a monthly basis (sometimes longer) for services rendered rather than drawing weekly or biweekly paycheck
Describe the procedures for asserting a discrimination claim.
1. First, an aggrieved employee must file a complaint (discrimination) with the local office of EEOC (generally with 180 days of the adverse job action) 2. The EEOC then notifies the employer and commences a preliminary investigation. As an administrative agency, the EEOC may use its authority to obtain documents, statements from witnesses, and other evidence that will aid in the investigation 3. During and immediately after the investigation, the EEOC is required by statute to engage in conciliation negotiations (required attempts by the EEOC to settle a discrimination case instead of filing a lawsuit) 4. If conciliation efforts fail, the EEOC may choose to file suit against the employer on the employee's behalf or may decide not to take any action at all 5. After 180 days have passed from the time of the complaint, the employee may demand the EEOC issue a right-to-sue letter (this letter entitles the employee to file a lawsuit in federal court)
Disclosed, partially disclosed and Undisclosed agency - what are they and what are the consequences
1. Fully disclosed agency - a type of agency relationship in which the third party entering into the contract is aware of the identity of the principal and knows that the agent is acting on their behalf of the principal in the transaction. In a fully disclosed, only the principal is contractually obligated to the third party. Because the agent has no liability, third parties have no legal recourse against the agent if the principal fails to meet her obligations under the contract. 2. Partially disclosed agency - a type of agency relationship in which the third party knows that the agent is representing a principal but does not know the actual identity of the principal. In a partially disclosed, both the principal and the agent may be liable for the obligations under the contract. Because the principal is not identified, the third party must rely on the agent's good faith dealings and credit. Therefore, the law imposes liability on the agent in the event that the principal does not perform her contractual obligations. 3. Undisclosed agency - a type of agency relationship in which a third party is completely unaware that an agency relationship exists and believes that the agent is acting on her own behalf in entering a contract. In undisclosed, the agent is fully liable to perform the contract. Because the third party has no reason to know that an agency exists, he relies on the agent's good faith dealings and credit. Therefore, the law imposes liability on the agent in the event that the principal does not perform the contractual obligations.
Define the specific duties that collectively comprise a fiduciary obligation owed by the agent to the principal.
Five sub duties - loyalty, obedience, care, disclosure, and accounting
Recognize the dangers of the principal's failing to notify third parties of an agent's termination.
Termination is an important issue for business owners and managers because termination of the agency relationship also terminates the principal's duties and obligations to the agent and to third parties. It is equally important to understand the circumstances under which a third party must be notified of the termination in order to cut off the liability of the principal at a definite point. Failing to properly notify appropriate parties may result in continued liability of the principal for acts of the agent despite the termination.
