BLAW Pleasant Exam 1 TTU

Jury Instructions

judge instructs the jury in the law that applies to the case, and the jury retires to the jury room to deliberate a verdict.

Negligent Misrepresentation

occasionally, employers attempt to reduce their risk of liability in providing references by: 1. Withholding negative reference information, and 2. Simply not responding to reference requests.

Code of Ethics

sometimes called a credo or value statement, is a set of rules that a company or other group adopts to express its principles of ethical behavior that are expected of its personnel.

Employment Contract

specifies that the employer agrees to pay, and the employee agrees to work, for a specified period of time at a specified salary.

The "Sliding-Scale" Standard

standard for determining when the exercise of jurisdiction over an out-of-state defendant is proper. -identifies three types of internet business contracts.

Lily Ledbetter Act

statute of limitations resets each time an employer issues a discriminatory paycheck, but you are only allowed two years of backpay.

State Statute

statutes enacted by state legislatures

National Law

the law of a particular nation

Standing (threshold requirement)

the legally protectable *stake* or *interest* that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.

Moral Minimum

the minimum level of ethical behavior expected by society, which is usually defined as compliance with the law.

Negotiation

the parties meet informally with or without their attorneys and attempt to agree on a resolution. -if no neutral third party present, parties themselves reach a resolution.

Defendant

the party *against* whom a lawsuit is brought and from whom recovery is sought or who is *charged* with a violation of the law. (*defense*)

Plaintiff

the party who *begins* a lawsuit by filing a complaint in the appropriate court. (*offense*)

Administrative Process

the procedure used by administrative agencies in the administration of law. Rulemaking, enforcement, adjudication.

Judicial Review

the process by which a court decides on the constitutionality of legislative enactments and actions of the *executive branch*.

Litigation

the process of resolving a dispute through the court system.

Alternative Dispute Resolution (ADR)

the resolution of disputes in ways other than those involved in the traditional judicial process, such as negotiation, mediation, and arbitration.

Disbursing Benefits (Functions of Administrative Agencies)

there are government agencies whose primary responsibility is to disburse benefits. -ex: farmers, elderly, individuals who are unemployed, etc.

Treaties

written agreements by 2 or more countries. -becomes legally binding when approved by 2/3 of the senate.

Interrogations

written questions for which written answers are prepared and then signed under oath. -difference between deposition is that it is directed to a party of the lawsuit, (plaintiff or defendant), not a witness.

Partially Disclosed Principal

Depends on state law, but the third party can hold the agent liable for contractual non performance.

What was the first Federal Administrative Agency?

Interstate Commerce Commission (ICC)

Electronics in the workplace

You do *NOT* have reasonable expectation of privacy when using your employer's email system, even during work hours. -they do not have to warn or tell you they are monitoring you.

Diversity of Citizenship

a basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a U.S. citizen and a citizen of a different country.

Employment at will

a common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.

Corporate responsibility is MOST successful when...

a company undertakes activities that are significant and related to its business operations.

Precedent

a court decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.

Ripeness (threshold requirement)

a current controversy worthy of adjudication must exist before a federal court may hear a case.

Defamation

a current or former employee may sue his or her employer, if the employer provides information to a third party that is not true, irrespective of whether or not it relates to the employee's job performance.

Primary Source of Law

a document that *establishes the law* on a particular issue, such as constitution, a statute, an administrative rule, or a court decision.

National Labor Relations Board (NLRB)

a federal administrative agency formed to interpret and enforce the National Labor Relations Act.

Equal Employment Opportunity Commission (EEOC)

a federal agency responsible for administering laws that prohibit discrimination in employment. -since 1972, the EEOC has standing to sue companies that are alleged to be in violation of the law.

Pregnancy Discrimination Act of 1978

a federal statute designed to protect individuals from illegal discrimination in employment on the basis of pregnancy. -must treat pregnancy in the same manner as any other employee who suffers from a temporary disability.

Civil Rights Act of 1964

a federal statute designed to protect individuals from illegal discrimination.

Sarbanes-Oxley Act

a federal statute that placed an onus on upper management to monitor closely the financial dealings and disclosures of their firms and that established a broad to oversee accounting practices in the United States.

Brief

a formal legal document outlining the facts and issues of the case, the judges rulings or jury's findings that should be reversed or modified, the applicable law, and arguments on defendants behalf.

Administrative Agency

a governmental body responsible for the control and supervision of a particular activity or area of public interest. -referred to as unofficial "fourth branch of government". -created by congress through *enabling legislature*

triple bottom line

a measure that includes a corporation's profits, its impact on people, and its impact on the planet.

Uniform Law

a model law developed by the National Conference of Commissioners on Uniform State Laws for the states to consider enacting into statute. -state legislature has to adopt the uniform law to make it a law in that particular state.

Mediation

a neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution. -does not make decision but may make a *mediator's proposal*

Independent Contractor

a person who works for, and receives payment from, an employer but whose working conditions and methods are not *directly controlled* by the employer.

Principals Tortious Conduct

a principal conducting an activity through an agent may be liable for harm resulting in the principals own negligence or recklessness. -thus a principal may be liable for giving improper instructions, authorizing the use of improper materials, or establishing improper rules that resulted in the agent's committing tort.

Liability of Agents Misrepresentation

a principal is exposed to tort liability whenever a third person sustains a loss due to the agent's misrepresentations.

Liability for Agents Negligence

a principal may also be liable for harm an agent caused to a third party under the doctrine of *respondeat superior*

Principals Authorization of Tortious Conduct

a principal who authorizes an agent to commit a tort may be liable to persons or property injured thereby, because the act is considered to be the principals.

Ethical Dilemma

a problem about what a firm should do for which no clear, right decision is available.

Adjudication

a proceeding in which an administrative law judge *hears* and *decides* issues that arise when an administrative agency charges a person or firm with an agency violation. -ALJ's preside over these.

Rule of Four

a rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.

Enabling Legislature

a statute that specifies names, functions, and specific powers of agency.

Deposition

a sworn testimony by a party to the lawsuit or any witnesses.

Workers Compensation

a type of *insurance* that provides that employees may recover damages for work-related injuries and illnesses without having to prove negligence on the part of the employer.

Fulfilling Government Requirements (Functions of Administrative Agencies)

administrative agencies exist at *all* levels of government. -at the federal level, the IRS collects taxes needed to operate our federal government.

Wagner Act of 1935 (aka NLRA)

adopted to encourage the formation of labor unions and provide for collective bargaining between employers and unions. Also, created by the NLRB. -example of enabling legislation

Agency by Ratification

affirmed after the fact by word or action of the principal.

Disclosed Principal

agent has no contractual liability.

Substantive Law

all laws that define, describe, regulate, and create legal rights and obligations. -ex: state law that provides employees the right to workers compensation for on the job injuries because it *creates legal rights*

Procedural Law

all laws that establish the methods of enforcing the rights established by substantive law. -Ex: establishes the method by which an employee must notify the employer about an on-the-job injury, prove the injury, and periodically submit additional proof to continue receiving workers comp.

Utilitarianism

an approach to ethical reasoning in which an action is evaluated in terms of its consequences for those whose it will affect. -A "good" action is one that results in the greatest good for the greatest number of people.

Whistleblower

an employee who discloses to the government, media, or upper management, that the company is involved in wrongful or illegal activities.

Exclusive remedy

an employee who sustains a work-related injury or illness can recover damages through workers compensation and may not file a lawsuit against his or her employer. -exception: if intent or gross negligence then you can sue

Voir Dire

an important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors.

Subpoena

an order requiring the recipient to appear at a legal proceeding to provide testimony.

Pretrial Motions

any pretrial business. ex: motion to change venue

Binding Authority

any source of law that a court must follow when deciding a case.

Federal Statute

applies to all states

International Law

applies to more than one nation

Courts of limited jurisdiction include....?

domestic relations courts, probate courts, traffic courts, and small claims courts.

Hiring Procedures

don't think that they wont look you up.

Title Seven of the Civil Rights Act of 1964 prohibits......

employers from discriminating against employees or job applicants on the basis of race, color, or national origin. -to avoid liability you must show that your job standards have a substantial demonstrable relationship to realistic qualifications fo the job in question.

Agency by Agreement

expressed or implied agreement. -can be created by oral agreement or express written contract. -ex: wife signing agreement for husband.

Privacy Act

federal agency may not disclose information about an individual to other agencies/organizations without that individuals written consent.

Uniform Commercial Code (UCC)

-Set of laws that govern various *commercial transactions* and are designed to bring *uniformity* to state law. -prepared in 1952 and took over 15 years and all 50 states have adopted it.

Defamation is considered:

-Slander, if spoken. -Libel, if written.

Justification

fifth step. -the decision maker articulates the reason for the proposed action or series of actions.

Employment status is important because it is treated differently for purposes of:

-Taxes. -Wages. -workers compensation benefits. -unemployment benefits. -social security payments. -ability to sue under employment laws. -liability for negligence (*Respondeat Superior*)

Inquiry

first step. -involves identifying parties involved (stakeholders) and collecting relevant facts.

Examples of sexual harassment

-Unwelcome sexual advances. -coercion (quid-pro-quo). -favoritism. -indirect harassment. -physical conduct such as unseemly gestures or touching. -visual harassment. -verbal harassment. -sexual assault.

Outcome-Based Ethics: Utilitarianism

focuses on the impacts of a decision on a society or on key stakeholders

Family Medical Leave Act (FMLA)

-a federal statute that provides eligible employees with the right to take up to 12 weeks of unpaid leave for: -personal medical reasons or, -to care for a child, spouse, or parent.

What is a disability?

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

Federal Unemployment Tax Act (FUTA) 1935

-a state system that provides unemployment compensation to those who are qualified and lose their job. -you do *NOT* have to pay into it like a retirement account. -employer pays for the benefit through taxes. (both federal and state)

writ of certiorari

-an order issued by the Supreme Court to a lower court requiring that court to send the record of the case for review.

Who is covered under chapter 21 Texas Labor Code?

-applies to employers with 15 or more employees. -also applies to all state and local government employers regardless of the number of employees. -covers employees and applicants, but not independent contractors.

Implied authority

-authority can be implied by *custom* or inferred from the *position* the agent occupies. -an agent has ________________ authority to do what is reasonably necessary to carry out the duties you had the express authority to complete and to accomplish the objectives of the agency.

A harasser.......

-can be either female or male. -can be same or different sexes. -can be supervisor, supervisor in another area, co-worker, non-employee such as customer or client.

What is a Trial Court?

-courts in which trials are held and testimonies are taken. -have either general or limited jurisdiction.

Difference between National and International Law?

-difference is that government authorities can enforce national law.

Employment privacy issues

-drug, medical, and genetic testing. -polygraphs. -workplace and personal possession searches. -monitoring phone calls, computers, and emails. -video surveillance and audio recording.

Disparate-treatment discrimination

-employee is treated differently because of a protected class.

an employer can safely disclose information about a current or former employee in the following areas:

-employee's prior employment and education history. -employee's character as such relates to the job (teamwork, leadership abilities, etc.) -the employees performance capabilities. -the employer's willingness to rehire the employee.

Difference between employees and independent contractors:

-employees usually *cannot sue their employer* for on-the-job injuries, whereas independent contractors can sue the person *with whom they made the contract* -an employer is responsible for an employee's *torts committed within ordinary scope of employment*; -the person who engages an independent contractor on the other hand, is generally not responsible for the independent contractor's torts.

Occupational Safety and Health Act of 1970

-form of enabling legislation. -federal statute that requires employers to maintain a safe and healthful work environment. -this law created OSHA

The U.S. Supreme Court has ruled that arbitration clauses in employment contracts are enforceable, provided the employee:

-has signed the agreement. -has a reasonable time to file a claim. -has access to the same remedies that a court could provide. -has access to an arbitrator with expertise in employment law. -has the right to be represented by an attorney. -does not have to pay the cost of the arbitration.

Criminal Law

-has to do with the wrongs committed against society and the regulation of criminal activity. -criminal defendants are prosecuted by public officials on behalf of the state, not by victims or other private parties.

U.S. Supreme Court

-highest court in the federal system. -nine justices, meeting in Washington, D.C. -grants or denies certiorari. -limited original jurisdiction over some cases.

Typically, the employee handbook contains the following information:

-history of the company. -hiring procedures. -hours of employment. -payment of salaries. -salary increments and promotions. -termination procedures. -benefits. -leaves of absence. -safety and security. -Misc. Policies.

U.S. Courts of Appeals

-intermediate level of the federal court system. -12 regional "circuit courts" including D.C. circuit. -No original jurisdiction; strictly appellate.

a negative reference can give rise to three kinds of lawsuits brought by current or former employees (or prospective employers):

-invasion of privacy. -defamation. -negligent misrepresentation.

An effective sexual harassment program is one that:

-is in *writing* and *communicated* to the employees. -defines sexual harassment and declares a "no tolerance" policy. -establishes a *complaint procedure*. -trains, educates, and sensitizes employees. -provide for prompt and thorough investigation of complaints. -includes corrective action including discipline.

Surveillance in the work place

-is okay except in private spaces. -no audio. -no notice or consent required.

Persons who are considered disabled and protected under ADA includes anyone who:

-is sight or hearing-impaired or uses a wheelchair. -suffers from cancer, diabetes, alcoholism, AIDS, epilepsy, manic depression, or schizophrenia.

Subpoena "ad testificandum"

-it is a writ or order, compelling a witness to appear at an agency hearing.

In Personam Jurisdiction

-jurisdiction over the person. -extends only over a certain geographic location.

Early exceptions to employment at will that disallows an employee from being terminated for:

-jury duty service. -being called to active duty in the military. -whistleblowing.

Statutory Law (4 sources of law)

-laws enacted by legislative bodies at any level of government, such as statutes passed by congress or by any state legislatures.

Generally, for employees to be eligible to receive the unemployment compensation, they must have:

-lost their job through no fault of their own. -they must meet the minimum state requirement for wages or time worked during an established period of time.

District Courts

-lowest level in the federal system. -no appellate jurisdiction. -original jurisdiction over most cases.

Employee handbooks

-manuals that contain the many policies of the firm . -in Texas, the provisions contained in the ________________ are considered a kind of contract between the employer and employee. -in other states, it is not construed as a contract.

State Appellate Courts

-may be intermediate appellate court OR states highest court. -pannel of three or more judges reviews the record of the case on appeal

Fair Labor Standards Act of 1938 (FLSA)

-minimum *age* employee can be. -minimum *wages* an employee can earn. -the rate at which an employee is paid if he or she works a certain number of hours in a given week.

Ratification

-occurs when the principal affirms an agents unauthorized act. -principal is bound to the agents act, and the act is treated as if it had been authorized by the principal from the outset. -if principal does not ratify the contract, the principal is not bound.

Appellat Jurisdiction

-power to review previous decisions. -there are *NO* trials at this level. -questions of *law* instead of questions of fact.

Equal Pay Act of 1963

-prohibits employer from engaging in wage discrimination (based upon sex). -requires all employees performing *substantially similar* jobs to be compensated equally. -exception when there is seniority and experience , etc.

Title VII covers Creed aka Religion as long as:

-reasonable accommodation is met. -not an undue hardship on employer

Freedom of Information Act (FOIA)

-requires that federal agencies publish in *Federal Register* places where public can access agency information. -an individual or business may make a FOIA request. -information may be obtained regarding how agency acquires and spends its money. -statistics and/or information collected by agency on a particular topic is available. -citizens entitled to any record the government has about them.

Chapter 21 of Texas Labor Code

-single statute that protects on the basis of color, race, sex, religion, national origin, age, and disability. -must file with EEOC within 300 days to file suit in federal court or 180 days if within the state agency. -for Texas Workforce Commission (TWC) it is 180 days.

Some courts of limited jurisdiction are sometimes called...?

-special inferior trial courts. or -minor judiciary courts. ex:small claims court can only hear certain cases up to a certain amount.

Civil Law

-spells out the rights and duties that exist between individuals and between persons and their governments. -includes the law of property, contract, and torts.

Jurisdiction

-the authority of a court to hear and decide a case. -three different types. -"the power to speak the law"

Common Law

-the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to legislature.

Original Court Jurisdiction

-the first court that can hear a case. -State System: County and District courts. -Federal System: District Courts

Case Law (4 sources of law)

-the rules of law announced in court decisions. -interprets statutes, regulations, constitutional provisions, etc. -governs all areas not covered by statutory or administrative law and is part of our common law tradition.

employment contracts usually have clauses related to maintaining confidentiality with respect to.....?

-trade secrets -restrictive covenants. -agreements to arbitrate in the event of a dispute between the parties.

Long Arm Statutes

-when a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state.

Main types of Administrative Agencies

1. Executive Agency. 2. Independent Agency.

Holding of the Chevron Deference

1. If congress directly addressed the issue in dispute when enacting the statute, courts must follow the *statutory language*. 2. if the statute is silent or ambiguous, a court will uphold an agency's decision if the agency's interpretation of the statute was reasonable, even if the court would have interpreted the law differently.

Factors that help measure the right of control:

1. Independent Nature of workers business. 2. Worker's obligation to furnish tools, supplies, and materials. 3. Workers right to control progress of the work. 4. Amount of time worker is employed. 5. Method of payment.

Steps In Civil Litigation Part 1: Pretrial

1. Informal Negotiations. 2. Pleadings. 3. Service of Process. 4. Defendants Response. 5. Pretrial Motions. 6. Discovery. 7. Pretrial conference

Steps to making ethical business decisions

1. Inquiry. 2. Discussion. 3. Decision. 4. Justification. 5. Evaluation.

Enforcement of Rules

1. Inspections and Tests. 2. Subpoenas. 3. Search Warrants

Cause of action for case against employer.

1. Intrusion into private affairs. -must be unreasonable, unjustified, or unwarranted. -employee must have reasonable expectation of privacy 2. Unreasonable publicity of private life or facts. -medical information. -affairs and personal relationships. -history of drug use. -sexual abuse.

Steps in Civil Litigation Part 2: Trial

1. Jury Selection. 2. Opening Statements. 3. Presentation of Evidence/ Examination of Witnesses. 4. Closing Arguments. 5. Jury Instructions. 6. Posttrial Motions.

When making decisions, a business should evaluate:

1. Legal implications of each decision. 2. Public Impact. 3. Safety risks for consumers and employees. 4. Financial Implications.

3 branches of government

1. Legislative. 2. Executive. 3. Judicial

Notice-and-Comment rulemaking (3 steps)

1. Notice of the proposed rulemaking. 2. A comment period. 3. The final rule.

Steps in Civil Litigation

1. Pre-trial 2. Trial 3. Appellate

Why is business ethics important?

1. Profit Maximization. 2. Tripple Bottom Line

Respondeat Superior

comes from a legal doctrine, a latin term meaning, "Let the master answer". -where the principal or owner is liable for the wrongful acts committed by agents or employees.

Administrative Law

consists of substantive and procedural rules created by administrative agencies.

Trial courts that have general jurisdiction as to subject matter may be called

county, district, superior, or circuit courts.

Reporters

court decisions are published in books and called ___________________.

statutory county courts at law

created by legislature in larger counties to aid the single county court in its judicial functions.

Federal minimum wage and overtime

current minimum wage= $7.25. -overtime pay rate for employees who work more than 40 hours in a workweek is 1.5 times regular wages.

If a case of sexual harassment winds up in court, the employer will attempt to defend against this lawsuit by......?

demonstrating that there was an effective sexual harassment program in force.

Detour

detour from employer's business would not be substantial, so that employee is still acting within the scope of limitation and the employer is still liable.

Invasion of Privacy

disclosing personal, irrelevant information about a former employee, irrespective of whether such information is true or false.

Frolic

A substantial departure from the employer's business would mean the employer is normally not liable for any damages committed.

Constructive discharge

A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave. -applies to all title VII discrimination.

Closing Arguments

After the defense concludes its presentation, the attorneys present their closing arguments, each urging a verdict in favor of her or his client.

Posttrial Motions

After the jury has rendered its verdict, either party may make a ___________________. -ex: motion for judgement; motion for a new trial.

Regulate conduct (Functions of Administrative Agencies)

Agencies regulate economic matters. -ex: price or entry into a particular kind of business.

Different forms of Agency Relationships

Agency By: 1. Agreement. 2. Ratification. 3. Estoppel. 4. Operation of Law

Discovery

interrogations, Request for Disclosure, depositions. -prevents surprises at trial

Remedies under Title VII

-Reinstatement -back pay -retroactive promotions. -damages - compensatory and punitive.

Agency by Estoppel

"appearance" of an agency. (reasonable standards) -remember it is in the deeds or statements of the principal that that create this type of agency-relationship.

Major Federal Independent Agencies

- Commodity Futures Trading Commission (CFTC). -Consumer Product Safety Commission (CPSC). -Equal Employment Opportunity Commission (EEOC). -Federal Communications Commission (FCC). -Federal Trade Commission (FTC). -Interstate Commerce Commission (ICC). -National Labor Relations Board. (NLRB). -Nuclear Regulatory Commission (NRC). -Securities and Exchange Commission (SEC).

An employer (principal) must:

- Pay an employee the agreed-upon wage, subject to compony policy, union contracts, and government mandates, for his or her services. - provide safe working conditions for agents and employees. - the principal should cooperate with and assist an agent in performing their duties, but must make sure there is no discrimination.

Subject Matter Jurisdiction

- a courts power to hear certain kinds of cases. -state ex: probate court. (broad) -federal ex: bankruptcy court. (narrow) -or concurrent: both state and federal courts have jurisdiction.

Age Discrimination Employment Act of 1967

- a federal statute designed to protect individuals from illegal discrimination in employment on the bases of age. -persons over the age of 40 are the protected class.

Americans with Disabilities Act of 1990 (ADA)

- a federal statute designed to protect individuals from illegal discrimination in employment on the basis of disability. -requires employers make *reasonable accommodation* for an otherwise qualified employee with a disability, unless to do so will cause undue hardship.

Federal Question

- a law that pertains to the U.S. Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case.

Termination of agency by Act of the Parties:

- lapse

3 Levels of the Federal Court System

-District Court -Appeals Court -Supreme Court

Administrative Agencies V. Governments: Differences

-Executive: Voters have the opportunity to *vote* the executive into and out of office. -Legislative: rules and regulations are established by the agency, not by elected representatives. -Judicial: hearings conducted by an administrative agency do not have a jury and the procedures are not as normal, when compared to a regular court hearing.

Administrative Agencies V. Governments: Similarities

-Executive: daily operations, the establishment of general policies and objectives. -Legislative: rules and regulations are like laws passed by the legislature and have the force of law. -Judicial: holding hearings and requiring compliance with its decisions are like decisions made in a regular court of law.

Major Federal Executive Agencies

-Federal Deposit Insurance Corporation (FDIC). -General Services Administration. (GSA). -International Development Corporation (IDC). -NASA. -National Science Foundation. (NSF). -Occupational Safety and Health Administration (OSHA). -Office of Personal Management. (OPM). -Small Business Administration. (SBA). -Veterans Administration (VA).

In what two situations would concurrent jurisdiction exist?

-Federal question. - Diversity-of-Citizenship

Equal pay act rules

-NOT required to go to EEOC. -can file directly with the court. -must bring claim within two years. -EPA covers employers with just 2 or more employees. (1 male + 1 female)

Exceptions to the Freedom of Information Act

-National Security. -Internal Agency Matters (personal issues). -Criminal Investigations. -Financial Institutions. -Individual's private life.

An employee (agent) must:

-Perform. -Notify. -Loyalty. -Obedience. -Accounting.

Functions of Administrative Agencies

-Regulate conduct. -fulfilling government requirements. -disbursing benefits. -providing goods and services.

Requirements for ratification

1. The agent must have acted on behalf of an identified principal who subsequently ratifies the action. 2. The principal must know all of the material facts involved in the transaction. If a principal ratifies a contract without knowing all of the facts, the principal can rescind (cancel) the contract. 3. The principal must affirm the agent's act in its entirety. 4. The principal must have the legal capacity to authorize the transaction at the time the agent engages in the act and at the time the principal ratifies. The third party must also have the legal capacity to engage in the transaction. 5. The principal's affirmation (ratification) must occur before the third party withdraws from the transaction. 6. The principal must observe the same formalities when ratifying the act as would have been required to authorize it initially.

Procedures under ADA

1. The plaintiff has a disability. 2. the plaintiff is *otherwise qualified* for the employment in question. 3. the plaintiff was excluded from the employment SOLEY because of the disability.

Steps in Civil Litigation Part 3: Appellate

1. To appeal you must have a prejudicial error of law. (why you make objections during the trial). 2. Procedure: File brief, oral arguments, receive decision. 3. Remember, only 1 out of every 10 trial court decisions get reversed on appeal.

Applying Utilitarianism takes three steps:

1. determination of which individuals will be affected by the action in question. 2. a cost-benefit analysis, which involves an assessment of the negative and positive affects of alternative actions on these individuals. 3. a choice among alternative actions that will provide maximum societal utility.

Categories of employees excluded from coverage of (FLSA)

1. executives. 2. professional employees. 3. outside sales associates.

Prima Facie Age discrimination case

1. member of protected age group. 2. qualified for position. 3. discharged because of age discrimination.

Three types of internet business contracts

1. substantial business over the internet. 2. some interactivity through a website. 3. passive advertising.

Determining the Scope of Employment

1. whether the employee's act was authorized by the employer. 2. the time, place, and purpose of the act. 3. whether the act was one commonly performed by employees on behalf of their employers. 4. the extent to which the private interests of the employee were involved. 5. whether the employer furnished the means or instrumentality by which an injury was inflicted. 6. the extend to which the employer's interest was advanced by the act. 7. whether employer had reason to know employee would perform action in question. 8. whether the act involved the commission of a serious crime.

How many federal circuit courts in the U.S.?

13 Total. 12 regional and 1 in D.C.

The FMLA applies to all employers who employ:

50 or more employees. -to be eligible, an employee must work 1,250 hours in the previous year.

How many counties with general jurisdiction courts?

94

prima facie case

A case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it. - "at first sight"

Business Necessity

A defense to allegations of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance.

Opening Statements

At the beginning of a trial, the attorneys present their opening arguments, setting forth the facts that they expect to prove during the trial.

Apparent Authority

Authority that is only apparent, *not real*. -An agents ___________________ authority arises when the principle causes a third party to believe that the agent has authority, even though she or he does not. -ex: Lundberg v. Church Farm, Inc.

Landrum-Griffen Act of 1959

Governs the internal operations of labor unions.

Right of Control Test

How much control the employer has over the individual and the details of the work to be performed.

Executive Orders

Legally binding directive from the president.

Pretrial Conference

Pretrial meeting with judge and apposing party after the discovery has taken place. -purpose is to explore possibility of a settlement without a trial and, if this is not possible, to identify the matters that are in dispute and to plan the course of the trial.

Discussion of work related issues online-

NLRB 2012 ruling protects workers rights online to talk about their company.

Citation

Names of parties, volume number, name of the reporter, beginning page number.

Venue

Once we know which proper court system has jurisdiction __________________ determines which trial court in the system will hear the case. -concerned with most appropriate physical location for a trial. -for a criminal case venue is normally where the crime occurred.

Taft-Hartley Act of 1947

Passed to curtail some of the powers the unions had acquired under the Wagner Act.

Government in Sunshine Act

Requires that agency meetings be open to public if agency headed by collegiate body (i.e. two or more persons, with majority appointed by president upon "advice and consent" of Senate.) -such agencies must keep records of closed meetings.

Pleadings

Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case.

Drug Testing in the Workplace

Texas is not a state that limits an employers right to give you a drug test. Know your employers anti-drug policy if they have one.

Recording phone conversations in the workplace

Texas: 1 party consent for phone calls. -illegal to record if not a party. ex: fight with roommates.

Privacy in the workplace:

The ECPA of 1986 does offer protection, but the purpose was not for protection from your employer at work on a work computer. Telephone calls might be different though.

Arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. -arbitrator imposes a resolution on the parties that may either be binding or non-binding.

The two basic types of courts which make up the Texas Judicial System are?

Trial court and Appellate court

Disparate-impact discrimination

Unintentional discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect. -neutral policy or practice inadvertently affects a protected class.

When is a corporation subject to personal jurisdiction?

normally subject to jurisdiction in the state which: 1)it is incorporated. 2) has its principal office. 3) is doing business.

Express authority

authority declared in clear, direct, and definite terms.

Power of Attorney

authorization for another to act as one's agent or attorney either in specified circumstances (*special*) or in all situations (*general*)

Religious Ethical Principles

basing your decisions on religious authorities or philosophical reasoning. (like Chic-fil-A in 2012)

Ethics and "Gray Areas" of the law

because it is highly subjective and changes over time, ethics is less certain than law.

Agency Relationship

between two parties in which one party (the agent) agrees to represent or act for the other (the principle)

Undisclosed Principal

both the principal and the agent are both bound and liable to the third party.

Legislative Branch

branch of government body that consists of elected representatives who have the responsibility for passing laws that represent the will of the people.

Subpoena "duces tecum"

bring it with you; compels an individual or organization to hand over books, papers, records, or documents to the agency.

Article III Section 2 of the U.S. Constitution

gave original or trial jurisdiction to the supreme court.

Executive Agencies

generally within the executive branch of government under a "cabinet-level" department; also referred to as "cabinet level" agency. -ex: Federal Aviation Agency (FAA) and Food and Drug Administration (FDA)

Independent Agencies

governed by board of commissioners governed appointed by president, with "advice and consent" of U.S. Senate. They also serve terms. -ex: Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC).

Stakeholders

groups that are affected by corporate decisions. -includes employees, customers, creditors, suppliers, and the community in which the company operates.

Seventh Amendment

guarantees the right to a jury trial for cases in *federal* courts when the amount in controversy exceeds $20.

Principle of Rights

how does your decision affect the rights of others?

suing for negligent misrepresentation

if a prospective employer hires an employee based on an incomplete reference, and then suffers damages that may have been avoided had the previous employer provided an accurate reference, the prospective employer may sue the previous employer for ___________________________.

Unauthorized Acts

if an agent has *NO* authority but still contracts with a third party, the principal *CANNOT* be held liable on the contract.

Vicarious Liability

indirect liability; that is liability without regard to the personal fault of the employer-for torts committed by an employee in the course or scope of employment.

Constitutional Law (4 sources of law)

law based on documents setting forth for the general organizations, powers, and limits of the government.

Ordinance

law passed by a local government, such as city council.

Stare Decisis

means "to stand on deciding cases"

Ethics

moral principles and values applied to social behavior.

Notice of monitoring means.....?

no expectation of privacy. -employer email. -Facebook. -personal email.

Attitude of management

one of the most important ways t create and maintain an ethical workplace is for management to have a good attitude and demonstrate ethical decision making.

Defendants Response

opposing party defends themselves by filing their own answer. -if you admit to allegations in your answer the court will enter a judgement. -If you deny the allegations, the litigation will move forward.

Providing Goods and Services (Functions of Administrative Agencies)

our country is a capitalist nation; however, some essential services are not provided by the *private sector*. -Instead, some governments provide goods and services like electricity, water, highway maintenance and hospital care.

Kantian Ethical Principles

people are not a means to an end.

Informal Negotiations

phone calls and emails

Administrative Law Judge (ALJ)

presides over administrative hearing; may attempt to encourage parties to settle, but has power to enter *binding decision*

Unemployment Insurance

provides financial stability, in the form of unemployment compensation, to eligible employees who lose their jobs.

Discrimination in employment is prohibited on the basis of......?

race, creed, color, sex, and place of national origin.

Affirmative Action Plans

records maintained by companies under federal and state law, which contain detailed reports to demonstrate that their employment practices are nondiscriminatory.

Duty-based ethics

rooted in the idea that every person has certain duties to others, including humans and the planet. -Religious Ethical Principles. -Principle of Rights. -Kantian Ethical Principles

Equal Dignity Rule

rule requiring that an agent's authority be in writing if the contract is to be made on behalf of the principal must be in writing.

Discussion

second step. -in this step, decision maker lists possible actions and the ultimate goals for the decision is determined.

Evaluation

sixth step. -final step that occurs once the decision has ben made and implemented. -used to determine if solution was effective.

Corporate Social Responsibility (CSR)

the idea that corporations can and should act ethically and be accountable to society for their actions.

Rulemaking

the actions of administrative agencies when formally adopting new regulations or amending old ones.

Business Ethics

the application of ethics (moral and ethical principles) to the special problems and opportunities experienced by business people.

Ethical Reasoning

the application of morals and ethics to a situation; applies to businesses just as it does to individuals.

Administrative Law (4 sources of law)

the body of rules, regulations and decisions created by administrative agencies.

Executive Branch

the branch of a government body that consists of an elected executive, including his or her appointed staff.

Judicial Branch

the branch of government that determines if there have been violations of the law and interprets the law if there are questions about what the law means in particular situations.

Presentation of Evidence/ Examination of Witnesses

the bulk of the trial. -direct and cross-examination of witnesses.

Service of Process

the delivery of the complaint and summons to the defendant.

Decision

third step. -those participating in this step work together to craft a consensus decision or consensus plan of action for the corporation.

Sexual Harassment

unwelcome sexual attention, whether verbal or physical, that affects an employee's job condition or creates a hostile working environment.

IRS Test

used to distinguish between employees and independent contractors. -understanding the difference affects how an individual pays federal income taxes, social security taxes, and medicare. -also determines whether individual gets a W-2, a tax form provided to employees, or a 1099, a tax form provided to independent contractors.

Agency by Operation of Law

usually in a family or emergency type situation.

Jury Selection process is known as?

voir dire