LGST FINAL

Definition and Sources of Agency Law

• Agency—a legal relationship in which parties agree, in some form, that one party will act as an agent for another party (principal), subject to the control of the principal o The principal authorizes the agent to provide services or accomplish some task on behalf of the principal

Water Pollution

: regulated by federal, state, and local statues and rules

Water quality regulation

each state sets water quality standards, standards set according to the designated use of the water source (higher for water swimming and fishing)

Mobile Sources of Air Pollution

motor vehicles, internal combustion engine remains significant source of hazardous pollutants o EPA issued standard intded to limit motor vehicle emmissions thorughs it Transport and Air Quality (TAQ) Program- regulates 1)tailpipe emissions 2) fuel economy (miles/gallon) 3) performance standards 4) composition and distribution of fuels

Seniority

o Employers are allowed to use a seniority system (actual number of years on the job) to defend job decisions

Nuisance

the origins of environmental protections were primarily based on the common law doctrine of nuisance o In suit for nuisance, aggrieved party sues to compel a polluter to cease polluting based on aggrieved party's right to enjoy her property without interference from third party o Zoning ordinances designed to prevent nuisance- segment municipality into zone- industrial, residential, and so forth o Protects party's individual propterty rights o Federal gov. left it up to local and state government to decide- heavy pollution where states more relaxed- pollution no boundaries so federal statutes needed to be made

Retirement

• Employee Retirement Income Security Act (ERISA) o Vesting—employees are entitled to their benefits from various employer-contributed benefit plans, within a certain period of time, even if they no longer work got their employer • Social Security Act (SSA)—workers are entitled to a retirement income from the federal government by virtue of the social security act

Age Discrimination In Employment Act (ADEA)

• Employers are prohibited from discriminating against employees on the basis of their age once an employee has reached age 40 • Exception if age is important to the job (ex: modeling, acting) (BFOQ) • A plaintiff who wants to prove age discrimination must prove that younger employees who have favorable treatment are substantially younger o In may states that is at least 10 years o It is irrelevant if the favored employee is also a member of the protected class (above 40) so long as they are substantially younger

Remedies

• Injunction (a court order) • Reinstatement • Compensatory damages (back pay) • Retroactive promotions • Requiring the employer to take certain actions in order to remedy patterns or practices resulting in discrimination

Drug Alcohol Testing

• Most states permit employee testing to long as the employer follows certain procedural safeguards intended to ensure confidentiality safety and accuracy • Testing is usually allowed of any ay-will employee or applicant • Different in all states

Negligent Hiring Doctrine

• Negligent Hiring Doctrine—requires employers to take reasonable steps (such as criminal background investigation and reference checks) to protect third parties, particularly customers and other employees, from harm at the hands of an employee • Courts are especially inclined to hold employers liable when: o The employees are required to have a high level of public contact as occurs with service and maintenance personnel o The employees are entrusted with caring for the sick, elderly, or other particularly vulnerable populations

Same Sex Harassment

• No protection under Title VII for sexual orientation • US Supreme Court has developed sexual harassment doctrines related to liability of an employer for harassment committed by the victims co-workers or supervisors • Sexual harassment prohibitions also apple to same sex harassment

Regulation of Workplace safety

• Occupational Safety and Health Act (OSHA) o Setting of national safety standards o Mandating information disclosure/warning of hazardous working areas/assignments o Record keeping and reporting requirements o Imposing a general duty upon employers to keep a workplace reasonably safe

Categories of Tort Law

1. Intentional Tort—one in which the tortfeasor was willful in bringing about a particular event that caused harm to another party 2. Negligence—an accidental (without willful intent) event that that caused harm to another party 3. Strict Liability—torts in which the tortfeasor may be held liable for an act regardless of intent or willfulness o Primarily in cases of defective products and abnormally dangerous activates

Tort Liabilities to Third Parties

• A principal may be held liable for an agent's tort, most commonly the tort of negligence, even though the principal has not engaged in any wrongful conduct. • Liability for principals of agents who are classified as employees is derived from the doctrine of respondeat superior.

Watchdog Groups

citizen interest organziations enforce environmental statutes and policy- can file lawsuit against either a polluter who is in violation of environmental statutes or a government agency or unit (EPA) that is not taking legally mandated steps to carry out environmental law enforcement o Individuals and groups derive this authority to file enforcement lawsuits by virtue of Citizen Suit Provisions that are party of many federal and state environmental statutes (Usually gives just a warning for polluter to clean up)

Environemental Law

collection of federal, state, and local lows that protect natural resources and promote a healthier environement for public at large- important to understand for business for liability, clean up reasons

Clean Air Act (CAA)

complex statute aimed at imporving outdoor air quality in US o Set permissible levels of certain air pollutants o Basic structure focuses on stationary sources of air pollution and mobile sources of air pollution

• Bona Fide Occupational Qualification (BFQQ)

o Allows discrimination based on religion, gender, or national origin when it can be shown that such discrimination is reasonably necessary to the business operation o DOES NOT ALLOW RACE o Cannot be based on paternalism (protecting a women from working in dangerous environments) o Ex: a movie role, employment of clergy

• Federal statutes impact businesses designed to:

o Ensure government agency decisions have least impact on the environment o Promote clean air and water thorugh regulation and permits o Regulate the use and disposal of solid and hazardous waste o Clean up property or waterways that are contaminated with hazardous waste

Stationary SOurces Air Pollution

o States set regulations for achieving the national ambient air quality standards (NAAQS) o Plan takes form of a mandated State implementation Plan (SIP) o SIP freatuer program for issuing operating permits to existing stationary sources that emit pollutants at special levels- include information on which pollutant is being released, how much and steps the source is taking to reduce pollution

Plant/Facility Closing

o Worker Adjustment and Retraining Notification Act (WARN Act) • Employers that intended to either close down and entire facility or intend to lay off 50 or more workers are required to provide advance notice to employees (60 days) • Only applies to companies with 100 or more full-time employees

National Environmental Policy Act (NEPA)

one of first attempts at comprehensive legislation to address environmental regulation was NEPA. Established a process that must be followed by federal agencies in making decisions that have potential to have a significant impact on environment o Procedural steps identify purpose of and need of project, possible alternatives, and environmental impact o Agency classifies it as either • Categorical Exclusion (CE): used for those actions have little or not potential for significant environmental impact • Environmental Assessment (EA): project and actions in which the environemtnal impact is unknown- shows if need more extensive report environemtnal impact statement • Environmental Impact Statement (EIS): EIS category used for actions classified as having potential for significant impact on the environment. If EA provides evidence that significant environmental impact is at issue must draft an EIS. Expanded form of the EA that includes • Description of proposed action • Statement of issues of environmental risk • Alternatives to actions and assessment of of risk of alternatives • Financial assessment • Plans for reducing environmental harm

Economic Incentive Theory

overall pollution reduction will result if businesses have economic and competitive incentive rather than a mandate to invest in modern equipment and plants- treat clean air as commodity not a natural resource

Market Based Approach

part of CAA accomplished through 1) emission trading via the permitting process and 2) a cap and trade plan intended to achieve lower levels of pollutants that contribute to acid rain- gives businesses choices how to reach pollution reduction goals

Permitting

pollution emission into waterways from sources like industrial plants is regulated through EPA's National pollution Discharge elimation system. Establishes a procedure for businesses and individuals that require discharge of some material into water source in order to operate their facilities. Permit required regadless of quality of the receiving water or whether the discharge actually causespollution. Individual vs. General permits

Authority

• Actual Authority— either when the parties expressly agree to create an agency relationship or when the authority is implied based on custom or course of past dealings o Ex. the president of a company does not need to go to the board of director for every minor contract decision • Apparent Authority—power to bind the principal to the contract from the appearance of legitimate authority to a 3rd party o Arises from the actions of a principal that lead a 3rd party to believe that an agent as the authority to act on the principals behalf • Ratification—retroactive (after-the-fact) power to bind o The principal may subsequently give authority by either (1) Expressly ratifying the transaction or (2) Not repudiating the act

Lilly Ledbetter Fair Pay Act (2009)

• After she retired she found that men were being paid more for doing the same work as her • No each paycheck that is issued constitutes discrimination

Clean Water Act (CWA)

water quality standards set by and regulated through clean water act, federal statute that is implement and enforced by the EPA in tandem with the US amry corps of Engineers and state agencies o Stems from pollution from industrical, municipal, and agricultural sources

Americans with Disabilities

• Americans With Disabilities Act (ADA)—prohibits discrimination on the basis of a physical disability o If the testing uncovers a former drug addiction (or current alcoholism), under certain circumstances the employee is protected from discipline or termination under the ADA o Places restrictions on medical examinations and tests • Only after job offer • Must be administered to all • Cannot be used to target those with disabilities

Agents Contract Liability to Third Parties

• An authorized agent who enters into a contract with a third party binds the principal to perform certain obligations, and the third party may legally enforce the contract against the principal. • Fully Disclosed Agency— when the third party entering into the contract is aware of the identity of the principal and knows that the agent is acting on behalf of the principal o Only the principal is contractually obligated to the third party o The agent has no liability, and the third party has no legal recourse against the agent if the principal fails to meet her obligations • Partially Disclosed Agency—occurs if the third party knows that the agent is representing a principal but does not know the actual identity of the principal o The principal is only referred to by some generic terminology • Ex. "interested real estate buyer" o Both the principal and the agent may be liable for obligations under the contract o Law imposes liability on the agent if the principal does not perform because the principal is not identified • Undisclosed Agency—when a third party is completely unaware that an agency relationship exists and believes that the agent is acting on her own behalf when entering into a contract o Agent is fully liable

Monitoring Email and Internet Usage

• An employee's activities while using an employer's computer system are not protected by any privacy laws • All computer use is subject to employer monitoring, including the right to: o Track websites visited by employees o Count keystrokes and mouse clicks o Block employees from visiting specific Internet sites o Limit the amount of time an employee may spend at a specific website

Union Formation

• Authorization Cards—signed statements by employees indicating that they wish to unionize and/or are electing to be represented by an existing union • Election—A vote to elect or reject unionization by the entire bargaining unit • Certification—occurs when a legally sound election reveals a simple majority of pro-union votes • Collective Bargaining Unit—an employee group that, on the basis of a mutuality of interest, is an appropriate unit for collective bargaining o The NLRA requires that both parties engage in good faith negotiations o This is not a requirement that another concede a particular term o The parties are obligated to demonstrate that they are engaged in moving toward an agreement • Strike—the NLRA specifically allows for union employees to commence a strike in order to induce the employer to concede certain contract terms during collective bargaining

Defenses to Negligence Claims

• Comparative Negligence—this defense requires a jury to allocate the proportion of negligence committed by each party in terms of percentage, which can reward the amount they have to pay to the injured • Assumption of the Risk—when the injured party knew that a substantial and apparent risk was associated with certain conduct and the party went ahead with the dangerous activity anyway o Requirements: • The injured party knew or should have known that a risk of harm was inherent in the activity • The injured party voluntarily participated in the activity

Employee Agents vs. Independent Contractors

• Courts apply substance over form when deciding what type of relationship actually exists between the principal and the agent • The agent is classified based on the amount of direction and control that the principal has over the agent o Do they work for an hourly wage or for a single paycheck? o Do they set their own hours, or are they on a time clock? o Does the agent have more than one client? o Does the principal supply the tools for the job? • Courts may also look to state common law in guidance. In California: o Whether the worker is engaged in a distinct occupation or business o Whether, considering the occupation and locality, the work is usually done under the principal's direction or by a specialist without supervision o The skill required o Whether the principal or worker supplies the instrumentalities, tools, and place of work o The length of time for which the services are to be performed o The method of payment, whether by time or by job o Whether the work is part of the principal's primary business o Whether the parties believe they are creating an employee-employer agent relationship

Overview of Agency Transaction

• Creation of Agency—principal wishes to from an agency and the agent consents o The parties must have an understanding that the principal is in control of the agency relationship o No need for formal expression—conduct alone can be sufficient basis for formation of agency • Performance of Obligations and Duties—agent performs as agreed and in accordance with fiduciary obligations—principals primary obligation is payment • Termination of Agency—express act of parties or operation of law

Defamation (Intentional)

• Defamatory Statement—a false statement concerning a party/s reputation or honesty or a statement that that subjects a party to hate, contempt or ridicule (DAMAGES) o Defamatory interpretation must be objectively reasonable and the plaintiff must show at least one of the recipients interpreted it as so o Must be provable as false not just unkind o Cannot be a statement that is pure opinion o Dissemination to a 3rd Party—even if the statement us untrue it is not defamatory unless it reaches a third party other than the victim o Specificity—must be about a particular party, business or product o Damages—must prove you have suffered monetary harm • Ex. lost clients, lost employment, unable to secure new employment • Libel—written or broadcasted (radio, TV, film) defamatory statement in words or pictures • Slander—spoken defamatory statement • Public Figure Standard—defamation must be committed with malice or reckless regard for the truth

Tort

• Tort law and product liability law set out certain conduct and standards of reasonableness and provide legal recourse when violation of those standards results in an injury causing loss • Tort- is a civil wrong where one party has acted or in some cases failed to act, and that action or inaction causes a loss to be suffered by another party o Law intended to compensate injured parties for losses resulting in harm • Tortfeasor- one who commits a tort, tortfeasor wrongful conduct described as tortious conduct • Tort law governed by state common law principles-Restatement of Torts • Torts fall into 3 categories: intentional torts, negligence, and strict liability • Tort—a civil wrong where one party has acted, or in some cases failed to act, and the action or inaction causes loss to be suffered by another party • Tortfeasor—one who commits a tort • Tortious Conduct—the tortfeasor's wrongful conduct

Theories of Discrimination

• Disparate Treatment—overt and intentional discrimination—when an employer treats an employee (or potential employee) differently based on her membership in a protected class, this constitutes discrimination under Title VII o McDonald Douglass Standard—used when direct evidence is not available • Plaintiff must establish a prima facie case of discrimination • Four-prong disparate treatment test 1. She is a member of a protected class. 2. She applied for and was qualified for the job (or promotion, etc.) and met the employer's legitimate expectations. 3. She was rejected by the employer 4. The employer continued to seek applicants or filled the position with a person outside the protected class • Burdon of Proof shifts to employer—must articulate a legitimate and nondiscriminatory reason for the action • Burdon of proof shifts back to employee to prove the reason given by the employer is not the actual reason for the action • Mixed Motives—the cause of adverse employment action was motivated by both legitimate and discriminatory motives • Disparate Impact—even when an employer is not motivated by discriminatory intent, Title VII prohibits an employer from using a facially neutral practice (i.e., one that applies to all employees regardless of class membership) that has an unlawful adverse impact on members of a protected class o Ex. strength test or weight requirement

Classification of Agents

• Employee Agents—Individual employees who are authorized to transact business on behalf of the employer principal o Principals are liable for the actions or omissions (such as negligence) of employee agents. o Not every employee is an agent, they must have some type of authority to represent the employer • Ex. teller and manager at a bank are agents but not security guard • Independent Contractor Agent—not considered employees and have no legal protections of employees such as minimum wage and overtime compensation laws o The principal generally has no liability for the actions and omissions of independent contractor agents o Ex. attorneys, outside accountants and architects • Gratuitous Agents—agents who act on behalf of a principal without receiving any compensation o The rights and duties of gratuitous agents are the same as those of paid agents except that the duty of care applicable to the gratuitous agent is not as great o Ex. ask roommate to pickup your laundry for you

Polygraph Testing

• Employee Polygraph Protection Act o Prohibits most private sector employers from requiring a polygraph test as a condition of employment o Prohibited from taking or threatening action against current employees who refuse to take the test o Permits employers to use polygraph tests when investigating losses attributable to theft or other economic loss or when the employee is in the security or pharmaceutical industry

Employer Defenses

• Employer can offer a nondiscriminatory motive for the action in question or asserting a legally recognized defense • Business Necessity Test o 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 o Discrimination is permitted even if a protected class is adversely affected o Ex: a moving company can fire a women if she isn't strong enough to pick up furniture

Employment-at-will Doctrine

• Employment-At-Will—this doctrine permits employers to terminate an at-will employee with or without advance notice and with or without just cause, subject to certain exceptions. o The employment-at-will doctrine does not apply in cases where (1) the employee has an express contract, (2) courts have fashioned a common law exception, or (3) there is some specific statutory protection against job termination (such as antidiscrimination laws) • Express Contracts—when the parties enter into a contract, the rights of the contract employee in the case of termination are spelled out in the contract o The contract ordinarily lists the events that cause termination and the parties agree on post termination obligations o May also agree on severance pay if the employee is terminated for reasons not outlined in the contract o Ex. Pro Athletes, Unions, Actors/Actresses • Implied Contracts—an employment-at-will relationship may be converted to a contract relationship if the employer acted in a manner that would lead a reasonable person to believe that the employer intended to offer the employee protection from termination without cause o Ex. Guidelines for termination in a handbook or manual and oral promises • Public Policy Exception—Narrowly applied common law rule that places the public welfare ahead of the rights of an employer o A backstop provision for situations in which no specific statute is applicable but the termination was inconsistent with the general public's well-being o Ex. Lummis Car driver that left the car to help a person in danger could not be fired for leaving the car

Termination of the Agency Relationship

• Express Act—acts by which an agency relationship is terminated; can be either simply communication of the desire to terminate the relationship (termination), the expiration of fixed terms (expiration), or satisfaction of purpose • Operation of Law—method whereby an agency relationship is terminated as provided for in a statute or through certain common law doctrines such as (1) the destruction of essential subject matter, (2) death, (3) bankruptcy or (4) lack of requisite mental capacity

Employment Regulation

• Fair Labor Standards Act (FLSA)—passed in 1938 and intended to cover all employers engaged in interstate commerce o Minimum Wage—The FLSA establishes a minimum wage to be paid to every employee covered under the act • Congress has raised the federal minimum wage to $7.25 • States are permitted to set a higher minimum wage level o Maximum Hours • 40 hours per 7 day period o Overtime Pay • Generally time and a half • Exempt vs. Non-exempt: Education or skill level or certifications required for the position Salary level Compensation method Amount of physical labor required Amount of repetitive tasks Degree of supervision required by the employer o Child Labor • Under age 14—No employment (except newspaper sale and delivery) • 14-15—Limited hours during school days; only nonhazardous jobs • 16-17—No limits on hours, but cannot work in hazardous jobs

Business Competition Torts

• Tortious Interference with Existing Contractual Relationships—when one party induces another party to break an existing contract with a 3rd party, the inducing party may be liable for any damages suffered by the innocent party as a result of breaking the contract o For the injured party to recover damages the tortfeasor must have: • Had specific knowledge of the contract • Actively interfered with the contract • Caused some identifiable damages o Ex. non-compete agreements • Tortious Interference with Prospective Advantage—protection from interference with potential contracts (prospects) or other business relationships o Under limited circumstances in which the tortfeasor's conduct was highly anticompetitive • Ex. A company hacks into a competitors computer system to destroy bid proposal forms

False Imprisonment

• False Imprisonment—the intentional infliction of a confinement upon another party o Most commonly in cases of suspected retail theft o While the merchant has the right to briefly detain a suspected shoplifter, he must be cautious about giving rise to a false imprisonment claim when detaining an individual • Merchants Privilege—shields merchant from liability for temporarily detaining a party who is reasonably suspected of stealing merchandise o Merchant must follow certain guidelines: • Limited Detention—detention may last the time duration necessary to confront the accused party, recover any stolen goods, and wait for authorities to arrive (if necessary) • Limited to Premises—privilege applies only if the suspect is confronted on premises, including immediately adjacent areas like a parking lot • Seizure of Property—may only size property in plain view and may not search the accused shoplifter • Coercion—the merchant of agents (ex. security guard) may not attempt to coerce payment, claim to officially arrest the detained party or attempt to obtain a confession

Family Medical Leave

• Family Medical Leave Act (FMLA) o Applies to employers with at leas 50 employees within 75 miles o Employers must provide up to 12 weeks unpaid leave for purposes of caring for family or personal medical matters during any 12 month period

Telephone and Voicemail

• Federal Communications Privacy Act—A federal law enacted in 1986 that extends legal protection against wiretapping and other forms of unauthorized interception and explicitly allows employers to monitor employee communications on company equipment as long as this is done in the ordinary course of business or the employee consents to the monitoring

Sudden Job Loss

• Federal Unemployment Tax Act (FUTA) o Unemployment compensation is intended to cover workers who loose their job because of economic difficulties and not intended to reward employees who were terminated with cause

Affirmative action

• Federal antidiscrimination statutes do not require employers to give preferential treatment to minority employees • But Supreme Court has upheld the constitutionality of Executive Order 11246 and has allowed affirmative action plans to apply to private employers as a condition to a contract with the federal government

EPA

• Federal environmental laws enforced by the US Environmental Protection Agency (EPA)- works in conjuction with state governments

Procedures for Asserting a Claim

• First, an aggrieved employee must file a complaint against the employer with the local office of the EEOC (generally within 180 days of the adverse job action) • The EEOC then notifies the employer and commences a preliminary investigation • If efforts at conciliation 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 • After 180 days have passed from the time of the complaint, the employee may demand that the EEOC issue a right to sue letter. This letter entitles the employee to file a lawsuit in a federal court

Healthcare

• Health Insurance Portability and Accountability Act (HIPPA) o Sets rules designed to protect medical records from disclosure • Consolidated Omnibus Budget Reconciliation Act (COBRA) o Mandates employers offer continuous coverage eligibility to an employee who has been terminate

Principal Remedy to Breach

• If an agent's breach of duty to the principal causes damages to the principal, the principal may recover those damages by suing the agent for the breach o Recession and Disgorgement—If the agent breaches the duty of loyalty, the principal's remedies include the ability to rescind any transaction between the principal and agent. A court may also order the agent to return any funds earned as a result of the breaching conduct (disgorgement) o Unauthorized Acts of the Agent—a principal is responsible for the acts of an authorized agent even if particular acts were unauthorized • The risk of loss from the unauthorized acts of a dishonest agent falls on the principal that selected the agent

Product Liability

• In a products liability case, the injured party may pursue a legal remedy against the seller under one of three theories: o Negligence—One who negligently manufactures a product is liable for any injuries to persons proximately caused by the negligence • Courts have found that manufacturers have the duty of care regarding proper design, manufacturing, testing, inspection, and shipping o Warranty—Warranty laws are important protection for purchasers because they impose liability even in the absence of negligence • When the seller makes a representation of fact about a product, this is known as an express warranty o Strict Liability—A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect which causes injury to a human being (no proof of negligence required) • Requirements: The seller is engaged in the business of selling such a product The product is expected to and does reach the user or consumer without a substantial change in the condition in which it is sold Imposed on the seller even though seller has exercised all possible care in preparation and sale of the product. • Design Defect Ex. Ford Pinto—design defect • Manufacturing Defect—problem in manufacturing process, did not turn out how it was designed • Inadequate Warning Ex. Warnings on prescription meds to avoid liability • Improper Packaging Ex. Tylenol Scare—poison in Tylenol capsules—tamper resistant packaging Ex. Child resistant packaging • Unavoidably Unsafe Product

Labor Unions and Collective Bargaining

• National Labor Relations Act (NLRA)/ Wagner Act—provides general protections for the rights of workers to organize, engage in collective bargaining, and take part in strikes and other forms of concerted activity in support of their demands • Labor Management Relations Act (Taft-Hartley Act)—an amendment to the NLRA, that prohibits requiring employees to join or continue membership in a union as a condition of employment

Negligence

• Negligence—when a tortfeasor causes harm to an injured party by creating an unreasonable risk of harm, the law provides the injured party a remedy regardless of the tortfeasor's intent o Elements of Negligence • Duty—Did the tortfeasor owe a duty of care to the injured party? The law imposes a general duty on all parties to act reasonable and not to impart unreasonable risk to others Must act as reasonably as a prudent person • Breach of duty—Did the tortfeasor fail to exercise reasonable care? Failing to meet obligations • Cause in fact—Except for the breach of duty by the tortfeasor, would the injured party have suffered damages? The injured party must also prove that the tortfeasor's conduct was the cause in fact of the damages suffered by the injured party • Proximate (legal) cause—Was there a link between the breach of duty and the damages suffered by the injured party? The injured party must also prove that the (1) Tortfeasor's conduct was the closest-in-proximity cause of the damages, (2) The tortfeasor's liability wasn't canceled due to superseding cause • Actual damages—Did the injured party suffer harm that resulted in identifiable losses?

Equal Pay

• Plaintiff must demonstrate: o The employer pays different wages to employees of the opposite sex; o The employees perform equal work on jobs requiring equal skill; and o The jobs are performed under similar working conditions

Limitations to Respondeat Superior

• Scope of Employment—for the principal to be liable, the agents tortious conduct must have (1) been related to their duties as an employee of the principal (2) occurred substantially within the reasonable time and space limits (3) been motivated, in part, by a purpose to serve the principal • Frolic—when an agent, during a normal work day, does something purely for personal reasons unrelated to employment o Principal protected against any harm suffered as a result of an employees negligence while on a frolic • Detour—conduct classified as a small scale-deviation that is normally expected in the workday o Still within the scope of Respondeat Superior—principal liable for negligence • Intentional Tort o Ex. committing assault in the workplace o Thought to be outside the scope of employment and employer's are not liable for this conduct, unless the assault had a close connection to serving the principal

Strict Liability Torts

• Strict Liability—a concept rooted in the notion that the general public benefits when liability is imposed on those who engaged in certain activities that result in harm to another party, even if the activities were undertaken in the most careful manner possible (without negligence). • Abnormally Dangerous Activates o Does activity involve a high degree of risk? o Is there likelihood that the harm that results will be great? o Is it possible to eliminate/reduce the risk? o Is the activity relatively common? o Is the location of the activity appropriate? o Is there community value that outweighs the danger?

Americans with Disabilities Act (ADA)

• The ADA requires that employers with 15 or more employees to make reasonable accommodations for a disabled employee in the workplace o So long as the accommodation does not cause the employer to suffer an undue hardship • Documented Disability Requirement—ADA defines disability in terms of individuals that have a physical or mental impairments that substantially limit a person's ability to participate in major life activities

Reasonable Accommodations

• The ADA states that reasonable accommodations may include: o Making existing facilities readily available to individuals with disabilities o Job restructuring o Part-time or modified work schedules o Reassignment to vacant positions o The provision of readers or interpreters

ADA Amendments act 2008

• The ADAAA expanded the definition of disability with specific statutory definitions intended to urge courts to interpret the definition of disability • " In favor of broad coverage of the individuals under this Act, to the maximum extent permitted by the Act." • Does not consider corrective measures when deciding if you are disabled (with the exception of eyesight)

Agents Duty to Principal

• The duties of good faith and best interest are automatic and don't need to be agreed upon by the parties • The duties that define an agency relationship can be summarized as "fiduciary duty" which is broken down into 5 categories: o Loyalty—the law requires that the agent hold the principal's objectives paramount, and that the agent act solely for the benefit of the principal, and not for themselves o Obedience—an agent has the duty to obey the lawful instructions from the principal and cannot substitute their own judgment for the judgment of the principal (unless specifically authorized) o Care—an agent as the duty to act with due care when conducting business on behalf of the principal—must act in the same careful manner when they are doing things for the principal as they would in their own affairs o Disclosure—agents have an ongoing duty to keep the principal informed and disclose any and all relevant facts to the principal. o Accounting—unless the parties agree otherwise, the agent must keep appropriate written records for any money that the agent spends or receives on behalf of the principal

Fraudulent Misrepresentation

• The law allows a party to collect monetary damages if ... o The misrepresentation was a material fact known to be false by the tortfeasor (or reckless disregard for the truth) o The tortfeasor intended to persuade the innocent party to rely on the statement and the innocent party did, in fact, rely on it o Damages were suffered by the innocent party • Every state has a consumer fraud protection act that severely punishes those who commit fraud (victims can sue and collect damages) • Courts will also allow recovery for negligent misrepresentations

Regarded- as- Test

• The standard applies when an employee was regarded as having impairment by her employer (even if the impairment was not actually a disability) • Ex: A man has a medical condition that he does not need accommodations for, however his supervisor wont promote him in fear that his medical issues will interfere with his work. The man can file a suit under ADAAA to be protected even though he doesn't really have a disability

Federal Workplace Antidiscrimination Statutes

• Title VII—Prohibits discrimination on a basis of an employee's race, color national origin, gender, religion (protected classes) o Applies to any private sector employer with 15 or more full-time employees, as well as to labor unions, employment agencies, state and local governments, and most federal government employees • Protected Class o Under Title VII or any other antidiscrimination laws, statutory protection is only extended to those who have been discriminated against based on their membership in a protected class

Trade Libel and Product Disparagement

• Trade Libel—false statements made by a competitor that disparage a company's product o Clear and specific reference to the disparaged party or product o Knowledge the statement was false, or reckless disregard for the truth o Communicated to a third party (similar to defamation) • Product Disparagement Statutes—made by states with the intent of protecting their major industries such as agriculture, dairy or beef o Texas Cattle Ranchers Association v. Oprah • Oprah stated that certain types of US hamburger meets caused mad cow and that she would no longer eat hamburgers • Ranchers showed evidence that beef sales dropped as a result of the statement • They also claimed Oprah's statements were false • They Cattle Ranchers lost the case because the jury felt claims were too brad and there was not sufficient evidence the remarks alone were the cause of loss revenue

Defenses to Defamation

• Truth—if the statement is made truthful no defamation has occurred • Privilege Defense—legal or public policy based immunity from defamation o Absolute Privilege—no further evidence to assert defense • Government Officials—no liability during congressional debates, hearings etc. while in office • Judicial Officers and Proceedings—judges, lawyers and sometimes witnesses are protected • State Legislators o Qualified Privilege—defendant must offer evidence of good faith and be absent from malice to be shielded from liability • Media—media is protected from unintentional mistakes in fact if they have acted without malice • Fair Reporting Privilege—if one relies on an official public document or statement when making an alleged defamatory statement it is not considered to be defamatory (unless they know the statement is false) • Employers—when providing references (as long as the information is factual)

Sexual Harassment

• Unwelcome 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: o Occurs in the context of explicit or implicit conditions of an individual's employment or as a basis for any employment decisions o Unreasonably interferes with an individual's work performance or creates an offensive work environment • Quid Pro Quo—"something for something else"— the harasser demands sexual favors as a condition of continued employment or a prerequisite for a promotion or pay raise • Hostile Work Environment—a violation of Title VII occurs when the conduct of the harasser (or group of harassers) is of such a severe and crude nature that it interferes with the victim's ability to perform the job (severe and pervasive) o If the behavior is abusive and the abuse led the employee to quit, the employee is still permitted to bring an action against the harasser o Title IV Violation Examples: • Initiating a discussion of sexual acts, activities, or physical attributes in workplace areas (such as the employee cafeteria) • Engaging in unnecessary or excessive physical contact • Using crude, demeaning, or vulgar language • Displaying pornographic pictures or movies

Agent Remedies for Breach

• When a principal breaches a duty owed to an agent, the agent generally has the right to recover damages in court. • The most common breach occurs when the principal refuses to reimburse or indemnify the agent

Duties and Obligations of the Principal agent

• When an agent acts on behalf of its principal, the agent may incur expenses, make payments, suffer an injury, or cause damages to third parties • The principal has the duty to reimburse and indemnify its agents in these cases: o When payments made or expenses incurred within the agent's actual authority o Payments made by the agent for the principal's benefit but done without authority, so long as the agent acted under a mistaken good faith belief that he had authority to act o Claims made by third parties on contracts entered into by an authorized agent and on the principal's behalf o Claims made by third parties for torts allegedly committed by the agent if the agent's conduct was within the agent's actual authority or the agent was unaware that the conduct was tortious • But, they don't have the duty to reimburse or indemnify if the payments made or expenses incurred were o Outside the agent's actual authority o From losses resulting from the agent's negligence o From losses resulting from the agent's intentional tort or an illegal act

Statutory Exceptions

• Whistle-Blower—a colloquial term used in reference to an employee or agent who reports unlawful conduct or a statutory violation by his employer to the authorities • State Whistle-Blower Statutes—each state follows its own whistle-blowing statute, but, most commonly, whistle-blowers are protected when they report the violation of a law or standard by their employer to the authorities o Some states cover whistle-blowing only by government employees or employees of government contractors o Certain jurisdictions limit whistle-blower protection to employees whose disclosures involve conduct that could result in some harm to the employees or the public at large o A minority of states have extended that protection to employees whose disclosures involve any illegal or improper conduct • Ex. NY "dangers to the public" • Federal Whistle-Blower Statutes—federal employees are protected from retaliation for whistle-blowing by the Whistleblower Protection Act of 1989 o The law also covers employees of companies that contract with the government to provide goods or services o Some federal statutes give specific anti-retaliation protections for employees who disclose conduct that violates the particular statute

Workplace Injuries

• Workers Compensation o Establishes a structure for an injured or ill employees to be compensated through a statuary mandated insurance program as the exclusive remedy for workplace injuries or illnesses o Regardless of fault

Employment Discrimination

• Workplace discrimination that includes: o Hiring process o Treatment of employees in terms of promotions/demotions, work schedules, working conditions, or assignments o Disciplinary action such as reprimands, suspension, or termination. • Equal Employment Opportunity Commission (EEOC)—5 member administrative agency created as part of the Civil Rights Act of 1964 whose members are appointed by the president o Administer congressional mandates to ensure adequate protection for victims of discrimination o Investigate worker complaints and will sometimes sue on behalf of employees