Business Law Final Exam
Piracy
"The act of illegally copying someone's product or invention without permission." The music/film world has been significantly affected by the internet - and the tools that it gives people who want to copy/download/steal music/films, etc. 1/3 of internet users access unlicensed material
Liability in Agency Relationships: Determining the Scope of Employment
--Was Employee's act authorized by employer? -The time place and purpose of act (factually based) -Was act commonly performed by employees? -Did act advance employer's interests? -Did employer furnish instrumentality (tools)? -Did employer have reason to know employee would do the act? -Did the act involve a serious crime?
Sexual Harassment - Hostile work environment ("HWE") - conduct that gives rise to HWE claims:
-Actual or attempted rape -Unwanted/unwelcome physical contact -Unwanted pressure for dates -Unwanted sexual teasing, jokes, emails, texts, -Referring to adult woman as a girl, doll, baby or honey -Asking about sexual preferences or history -Making sexual gestures with hands or through body movements, etc.
Agency relationships
-Agency is a "fiduciary" relationship based on trust and confidence (Principal/ER must be able to trust his agents/EEs) -The principal has the right to control the agent in matters entrusted to the agent
Agency
-Agency serves an important social function - it stimulates commercial activity - -Because principals use agents to conduct multiple business operations simultaneously in various locations -increase number of transactions that can be completed at one time EXAMPLE - beer delivery business
Discrimination - BFOQ: Examples:
-Attendant at a women's clothing store -Prison guard at a men's prison -Age can be BFOQ especially if it is one that impacts public safety - state and local governments may institute mandatory retirement ages of 55 for firefighters and law enforcement officers -ERs may require certain high-ranking executives/policymakers to retire at age 65 -FAA - airline pilots cannot fly after reaching age of 60 -Hooters only hires women as servers because of sexual titillation
Discrimination based on Disability: example: Paraplegic confined to a wheelchair -
-Clearly physical impairment -Clearly affects major life activity that average person can perform This individual applies for a job as a university professor - and is denied job He must prove: -He has a disability -Can perform essential functions of job with or without reasonable accommodations -He was excluded from employment because of disability Is this a disability? -Physical impairment that limits major life activity Can he perform essential functions of job with or without reasonable accommodations? -What are essential functions? Has appropriate degree/training Can talk, operate computer, create course, teach, grade papers, etc. Can access classroom?? NO So he was excluded from employment from because of his disability
Duties of Agents and Principals: Principal's Duties to the Agent
-Compensation (Express or Implied). -Reimbursement and Indemnification. -Cooperation. -Safe Working Conditions.
Intentional Torts Against Property: Trespass to Land Defenses
-Consent -License to use - temporary -Contrast with easement - permanent right to use
Copyrights
-Copyright law not only gives the owner of the copyright the ability to prevent others from making exact copies of his work -it also gives the owner the right to prevent others from creating and selling works that are "substantially similar" to the copyrighted work. -This protects a copyright owner from another person changing a few words here or there in a work and claiming it to be his own.
Unintentional Torts: Negligence- Duty of Care and Breach
-Defendants (potential tortfeasors) owe a duty to protect potential Plaintiffs (folks who are injured) when their conduct creates a foreseeable risk of injury that he knew or should have known about. -Reasonable Person Standard A foreseeable risk is one in which the reasonable person would anticipate and guard against
What should an employment contract entered into contain:
-Describe the essential functions of the job -Term of employment OR at-will language -Compensation/benefits -The obligation to sign employer's standard proprietary information and inventions agreement -And company's right to modify job duties and compensation
Discrimination Based on Age: Examples of PRETEXT
-Deviation from prior practice - for example ER always follows progressive discipline. Verbal warning - then written warning - BUT in this case, employer did not follow progressive discipline policy -Adverse discriminatory statements establishing animus - strong dislike, enmity, hostility. Like "let's get rid of all the old battleaxes." -Statistics - especially in RIFs. 40% of workers over age of 40 80% of RIFfed EEs are > 40 yrs old
What does a trademark do?
-Distinguish product/service from goods of other manufacturers and merchants. -Assures consumers that products come from a trusted/known source - gives producers comfort that they (not imitator/counterfeiter) will reap financial reward
Unintentional Torts: Negligence What is the Four-Step Analysis?
-Duty: Defendant owed Plaintiff a duty of care; -Breach: Defendant breached that duty; -Causation: Defendant's breach caused the injury; -Damages: Plaintiff suffered injury.
Family and Medical Leave: Benefits and protections Violations of the FMLA
-Employer must continue worker's health care on same terms. Worker must be restored to position upon return to work (unless it's a "key" employee). -Damages. -Job reinstatement, and -Promotion (if lost) -Retaliation
Reducing Employee Related Litigation Risk: From the EE side - here are things ERs screw up - that make it easier for plaintiff's (EE's) lawyer
-Failing to recognize length of service/10 year rule -Close timing between protected activity and termination (retaliation for FMLA leave, pregnancy, filing workers comp claim, other protected activities) -Incomplete or contradictory documentation like performance reviews or inconsistent discipline -Failing to be fair after separation. Not providing severance pay or not providing enough severance pay, fighting unemployment, no outplacement assistance. -Ignoring requests for information after separation
Laws that Passed Which Regulated Employer Conduct
-Fair Labor Standards Act (FLSA) 1938 -Union legislation- 1930's -Worker's Compensation laws -Unemployment benefits -Title VII of the Civil rights Act of 1964 -Age Discrimination in Employment Act ("ADEA") 1967 -Americans with Disabilities Act ("ADA") 1990 -Family and Medical Leave Act ("FMLA") 1993
How long does registration last with Trademark Law?
-Federal trademark registration lasts for ten years but unlike patents, trademarks can be renewed to provide indefinite protection into the future. Of course, you can also lose the rights to a mark as is discussed in previous slides
Reducing Employee-Related Litigation Risk: If the employer chooses not to enter into employment contracts with its employees, EMPLOYERS SHOULD:
-Implement good employment policies and practices—generally what we are talking about here is drafting an employee handbook—employment policy manual... -While a lengthy employment handbook is not legally required or even always advisable—every employer should have a few essential written policies.
Discrimination Based on Age: Order and method of proof -
-LNDR -Age not the reason for termination - there was legitimate non-discriminatory reason - like: performance issues, terminally tardy, Absent - no-call, no-show Drunk on the job Theft -Then burden shifts back to plaintiff - to establish that LNDR is not real reason - merely PRETEXT for real reason -- AGE
Reducing Employee Related Litigation Risk: Key Policies include:
-Language establishing an at-will employment policy -Policy prohibiting unlawful harassment discrimination and retaliation AND that creates an effective mechanism for employees to report and seek redress for any such conduct -An electronic systems policy to protect the employer's computer and electronic systems against improper or illegal use. -Policies governing eligibility and use of leaves of absence -Policy reserving the company's unilateral right to revise its policies and benefits as it deems appropriate -Employees should be required to sign an acknowledgement form confirming that they have read and will abide by such company policies. -Policy manual does not create a contract of employment - these are not contractual mandates - they are policies governing work environment
Intentional Torts About People: Defamation
-Libel mistakes COST MONEY -ABC settled out of court rather than continue to fight a $10 B. dollar libel suit brought by Phillip Morris over reports on Day One which alleged the company added nicotine to its tobacco products. ABC admitted the award-winning report on the tobacco industry include a mistake for which is has made two prime time apologies.
The Age Discrimination in Employment Act (ADEA)
-Like T7 - file charge of discrimination with EEOC (but note that age discrimination plaintiff may bring federal court suit before NORTS received) -SOL - 300 days to file charge - 90 days after NORTS to file suit -Covered employers - remember T7 - 15 or more employees - ADEA - 20 or more
Utility Patent: what does it cover?
-Machines (think machines that make auto parts, microwave oven, cotton gin) -Process (think process for fabricating a computer chip -Articles of manufacture (think intermittent windshield wipers) -New composition of matter (new chemical compound or formula for mouthwash)
Non patentable subject matter includes:
-Natural phenomenon (such as photosynthesis) -Abstract ideas (such as pure algorithims not applied to any useful purpose) -Laws of nature (E=_𝑀𝐶_2_)
Employees who are normally not subject to "At Will" Rule:
-Public Employees -Employees with Individual Contracts: generally reserved for highly compensated executives -Union Employees with Union Contracts: also called collective bargaining agreements (CBA), typically CBAs limit termination - employer can't do it for any reason - must have "just cause"
Contributory and Comparative Negligence
-Pure Comparative Negligence States (CA & NY) allow plaintiff to recover even if his liability is greater than that of defendant. -Modified Comparative Negligence States: percent of damages caused by plaintiff is subtracted from the total award. -Most states - 50 Percent Rule: Plaintiff recovers only if liability is less than 50%.
What is it called when you make false statements about others orally? Print or media?
-Slander -Libel
Copyright- damages for violation: what are the monetary values?
-Statutory damages, which can be from between $500 to $10,000 per infringed work, -or up to $100,000 in the case of willful infringement, are damages which the court can award without regard to the amount of damages which the copyright holder could prove he has suffered. -In addition to an award of damages, a successful copyright infringement plaintiff may also obtain an injunction against further infringement by the defendant and, in appropriate circumstances, obtain the destruction of infringing copies of the copyrighted work.
Family and Medical Leave: When is it required for certain employers to provide twelve (12) weeks unpaid leave in a 12-month period to employees?
-The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care; -To care for a spouse, son, daughter, or parent who has a serious health condition; -For a serious health condition that makes the employee unable to perform the essential functions of his or her job
Worker Health and Safety: The Occupational Safety and Health Act (OSHA)
-The fundamental federal law to establish safe working conditions in the workplace. -Enforcement is by OSHA, NIOSH, and the OSHRC.
Negligence: Damages Injury Requirement and Damages
-To recover, Plaintiff must show legally recognizable injury. -Chrysler minivan story -Compensatory Damages are designed to reimburse Plaintiff for actual losses. -Punitive Damages are designed to punish the tortfeasor and deter others from wrongdoing.
What are the two duties that employers have under the Americans with Disability Act ("ADA")?
-To refrain from discriminating from employees (includes applicants for employment) with disabilities -to offer "reasonable accommodation" to employees or applicants with a disability who are otherwise qualified for the job they hold or seek - unless undue hardship results.
Tort Law: Examined on a Fault/Blame Continuum
-We have no problem assessing blame if someone intends the act that causes injury -But we also assess blame/fault if someone is careless and causes harm -Sometimes we assess blame/fault even if TF is not negligent or acted intentionally - called strict liability - so in products liability - even if manufacturer of product has taken every precaution - if he sells a product that is defective and it causes injury - he is liable
Copyrights defined:
-a form of protection given to the creators of "original works of authorship"
Intentional Torts Against People: Intentional Infliction of Emotional Distress
-an intentional act that is: extreme and outrageous that results in severe emotional distress in another -most courts require some physical symptom or illness
What is the duration of trade secrets?
-as long as owner keeps it secret, it lasts forever -think coke, formula that is still a secret therefore it is still protected
What are Intentional Torts Against People?
-assault and battery -false imprisonment -intentional infliction of emotional distress -defamation
Defenses to Negligence
-assumption of risk (can be expressed or implied) When you go to a Red's game - do you impliedly assume the risk of being hit with a foul ball? yes. What about intramural sports? A participant in an active sport will breach his duty of care only if he injures another player intentionally or engages in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport
What are the defenses to the intentional tort assault and battery?
-consent (surgery is technically battery but they consent so it is allowed) -self-defense (reasonable force) -defense of others (reasonable force) -defense of property
Unintentional Torts: Negligence How measured? Basic terms?
-damages bt: -special/general damages -compensatory/punitive
What are the duties imposed on us by society of Tort Law?
-duty to act carefully (not negligent) -duty to tell the truth- to be loyal -duty to not damage someone's reputation by disclosing untrue statements of fact about that person/business -duty to respect other people's property (real and personal property)
Degree of Trademark Protection: Fanciful
-fanciful marks are completely made up words - such as Exxon - Kodak - Xerox -Accorded highest degree of protection
Family and Medical Leave: When are employees eligible to make FMLA leave?
-if they have worked for their employer for at least 12 months -and have worked for at least 1,250 hours over the previous 12 months, -and work at a location where at least 50 employees are employed by the employer within 75 miles
Copyright protection gives the creator of the work (and ONLY the creator of the work) the right to,
-make copies or distribute copies of your work; -perform your work publicly (such as for plays, film, dances or music); -display your work In general, it is illegal for anyone else to do any of the things listed above with a work created by you without your permission - typically a license
Trade Secret protection programs: protecting trade secrets/confidential information
-non-disclosure agreements -non-competes -employee education
What are the key components to trade secrets?
-not readily ascertainable by proper means -reasonable efforts to maintain secrecy
Tort Law
-protects our interest in being safe from bodily injury -protects our interest in our property -protects our economic interest -protects our personal interests
Intentional Torts Against People: Defamation
-published statement must be a fact -opinions are protected speech under the First Amendment, and not actionable -publication requirement -Basis of defamation is the "publication" of a false statement of fact that holds an individual up to contempt or ridicule in the community. -Publication requires communication to a 3rd party.
Copyright- damages for violation: What is it necessary for the author to have done in order to sue for copyright infringement in a U.S. court?
-register the work with the U.S. Copyright Office -U.S. copyright law gives persons who register their works the option of recovering "statutory damages" for infringements which occur after the registration of the work, ---in the place of the actual damages the copyright owner would otherwise have to prove he has suffered.
Wage-Hour Laws: What 4 primary things does the Fair Labor Standards Act (FLSA) do?
-regulates EE classification (exempt - or not covered by FLSA - or non exempt - covered by the FLSA) -Sets minimum wage -Provides for overtime compensation -Eliminates/regulates child labor With passage of FLSA (1938) non-exempt EEs (those who are covered by the FLSA) have protections listed in previous slide
The following factors must be considered by law to determine whether a particular use of a copyrighted work is a permitted, "Fair Use", or if it is instead an infringement of copyrights
-the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: the noncommercial educational use is more likely to be a fair use; -the nature of the copyrighted work: the more factual and less creative the work, the more likely it will be fair use; -the amount and substantiality of the portion used in relation to the copyrighted work as a whole: the more taken the less likely to be fair use; and -the effect of the use upon the potential market for or value of the copyrighted work: in other words, is the use taking away from the copyright owner money that the she might have been making from the work.
When is Reasonable Accommodation NOT required? What can the courts consider when trying to determine if Undue Hardships exists?
-when it poses undue hardship on ER Courts can consider expense and difficulty in light of: -the overall financial resources of the facility -the overall financial resources of the ER -the type of operation of ER
Intentional Torts Against People: Defamation
-wrongfully hurting a person's good reputation -law imposes duty to refrain from making false statements of fact about others -orally breaching this duty is slander; breaching it in print or media (internet) is libel
What are the 2 things that the Jury has to decided in Tort cases?
1. IS THE TORTFEASOR IS RESPONSIBLE/LIABLE/TO BLAME FOR INJURY - SO IN TORT LAW WE TALK ABOUT WHETHER THE TF IS LIABLE (NOT WHETHER HE IS GUILTY) 2. AND - IF SO - WHAT DAMAGES ARE APPROPRIATE?
What are 3 key points in a quid pro quo case?
1. Involve supervisor and employee he/she supervises 2. If proven - ER is automatically liable for supervisor's conduct (within course and scope??) 3. Evidence of other similar behavior by this supervisor is admissible
Employment law - discrimination - remedies available to successful plaintiff
1. Make whole relief 2. Reinstatement and hiring 3. Back pay 4. Compensatory damages 5. Punitive damages 6. Attorney fees
What are the four basic types of intellectual property?
1. trade secrets 2. trademarks 3. copyrights 4. patents
How long does a owner of a patent get as a monopoly? What happens if this is violated by another inventor?
20 years the original inventor can sue and ask the court for an injunction to stop other inventor from continuing to make the product.
What is front pay?
A payment will be based on an estimate of how much she would have earned in the future
Employment law - discrimination - remedies available to successful plaintiff: Attorney fees
A prevailing plaintiff can recover attorney fees under Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).
A private figure claiming defamation—your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop—only has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement.
A public figure must show "actual malice"—that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet. A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures—a government employee, a senator, a presidential candidate Ex. of public figures: A former city attorney and an attorney for a corporation organized to recall members of city counsel Members of an activist group who spoke with reporters at public events
Strict liability - products liability: What are the liabilities without fault?
Abnormally Dangerous Activities: --Ultrahazardous activities involve serious risk of harm to persons or property that cannot be guarded against by exercise of reasonable care. Other Applications of Strict Liability: -Wild animals, and Product Liability -To recover in a products liability case - only need to prove that the product was defective - and that the product caused the injury -Think Kevin K - hammer - eye out case
Sexual Harassment - Hostile work environment. Was the conduct severe/pervasive? Examples
Actual or attempted rape - doesn't get more severe - normally look at frequency - but with rape/attempted rape, once is probably enough Unwanted/unwelcome physical contact - severe - but once may not be enough - depends on type of contact and frequency Unwanted pressure for dates - probably not severe - and once is not enough Unwanted sexual teasing, jokes, emails, texts, - probably not severe - and once is not enough Referring to adult as a girl, doll, baby or honey - probably not severe - and once is not enough Asking about sexual preferences or history - probably not severe - and once is not enough Making sexual gestures with hands or through body movements, etc. - might be severe- depends on type of conduct and frequency (once may not be enough)
Employment Law - Agency Law
Agency = Principal and Agent: is a two party relationship in which one party (Agent) is authorized to act on behalf of another (Principal) Agency is one of the most common and one of the most important legal relationships.
What can 14- and 15-year-olds do in what working and hours?
All work must be performed outside school hours and you may not work: more than 3 hours on a school day, including Friday; more than 18 hours per week when school is in session; before 7 a.m. or after 7 p.m. on any day, except from June 1st through Labor Day, when nighttime work hours are extended to 9 p.m.
Unintentional Torts: Negligence What is the Proximate Cause?
An act is the proximate (or legal) cause of the injury when the causal connection between the act and injury is strong enough to impose liability. -Were the injuries foreseeable? -Judges use proximate cause to limit liability of defendants. -BP Oil spill - is a perfect example of need to limit liability - proximity cases
Reducing Employee Related Litigation Risk:
An employer can minimize misunderstandings with his/her employees; Decrease the likelihood of work related disputes or union organizing efforts; And increase the chances of winning a wrongful discharge or discrimination lawsuit; By taking a few simple steps: 1. Every employer should exercise care in selecting employees. 2. Document the relationship (formalize either with a written employment contract or with an employee handbook)
So the Supreme Court held - when it comes to HWE created by supervisor:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. BUT when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages. The affirmative defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Overview of Civil Rights Legislation
Anti-discrimination laws change the at-will rule: now the at-will rule is stated a little differently ER's may terminate their EE's: at any time and for any reason that is not illegal In other words -- does not violate anti-discrimination laws
Trademarked names examples:
Apple, Nike, Budweiser, Skyline, McDonalds, Ford, Pringle's, Rolex *symbols and marks are important too : nike swish, mcdonalds arc, coke bottle, bat man
Underlying policy behind copyright:
As the creator of your work, you should have the right to control what people can and cannot do with your work. copyright protection is what allows the creative people around us to get paid for coming up with all the wonderful songs, shows, books, painting, movies that we enjoy. These talented musicians, authors, illustrators and screenwriters deserve our respect and appreciation - and they deserve to make a living from the hard work they put into their creative works -- otherwise most of them wouldn't be able to produce as many (or any) of the songs, books, plays, movies and TV shows that we like.
Discrimination - BFOQ - Bona Fide Occupational Qualification
BFOQs only apply to occupations where the membership in protected class is essential to the performance of that job For example, a Catholic school may require positions such as principal, chaplain or teaching faculty to be Catholic (that is essential to the job) BUT membership in protected class not a BFOQ for a job like janitor or secretary (not essential for this job)
Assault is reasonable apprehension of an immediate battery. This means the other person threatened to harm you or did something which placed you in reasonable apprehension of being struck by the other party
Battery is the harmful or offensive touching of another person without consent or privilege. If the other party struck you, this would constitute harmful or offensive touching to establish liability for battery. Harmful or offensive physical contact with the person or with something near the person would establish liability for battery. The other driver started hitting your car with his car; The other driver gets out and starts pounding on your car, while you are in or near the car; After driving you off the road, the other driver gets out of his car and strikes you.
PROOF - LNDR/Pretext
Burden then shifts to D/ER to establish LNDR Examples of LNDR? In other words - why do ERs fire EEs? If D satisfies this burden and establishes LNDR the plaintiff must present evidence which would allow a jury to find the defendants articulated reason for the termination to be unworthy of belief it is not the real reason - but rather a PRETEXT for illegal discrimination.
Wage and Hour Laws: Liability for misclassifying EEs
Can result in significant liability Collective actions filed by groups of EEs
Unintentional Torts: Negligence
Causation: -Even though a tortfeasor owes a duty of care and breaches the duty of care, the act must have caused the Plaintiff's injuries. -Causation is both: Causation in Fact, and Proximate Cause Is there causation in fact? -Did the injury occur because of the Defendant's act, or would the injury have occurred anyway? -Usually determined by the "but for" test, i.e., but for the Defendant's act the injury would not have occurred
Defenses to Negligence
Contributory and Comparative Negligence -under the common law doctrine of contributory negligence, if Plaintiff in any way caused his injury, he was barred from recovery Most states have replaced contributory negligence with the doctrine of comparative negligence. Comparative negligence computes liability of Plaintiff and Defendant and apportions damages. Remember Stella Liebeck - McDonald's hot coffee plaintiff - jury found that her carelessness contributed to her injury - how much? 20% So her recovery reduced from $200,000 to $160,000
Copyright- damages for violation How Do I Obtain Copyright Protection?
Copyright Exists Automatically Upon Creation Copyright exists immediately and automatically when the work is created, that is, when it is fixed in a tangible copy for the first time. Neither publication, nor registration with the Copyright Office, is required to secure copyright. The notice for visually perceptible copies (like books and posters) should contain all of these items: The symbol © (the letter "C" in a circle), or the word "Copyright" -The year of first publication of the work; and - The name of the copyright owner - Example: © 2001 John Doe
Sexual Harassment - Hostile work environment. Was the conduct severe/pervasive?
Courts examine: -Frequency and severity of conduct; -Whether conduct is physically or psychologically threatening; and -Whether conduct unreasonably interferes with employee's work performance
Unintentional Torts: Negligence
Damages -The total compensation P can get in a personal injury claim is called "general damages". It is usually based on medical expenses/lost wages (known as "special damages") -Sometimes formula applied using "specials" multiply "specials" by a number between 1.5 and 5 (sometimes higher) to compensate for -pain and suffering, -permanent disability, -lost social and educational opportunities, -Hedonic (loss of enjoyment of life) etc.
Unintentional Torts: back to damages
Damages - a philosophical approach Remember - if victim of tortious action loses their leg - jury cannot get them back their leg - victims can only recover money damages (remedy at law) -Atypical cases Victims of terrorists attacks 9/11 victims Ken Feinberg - lawyer in charge of 9/11 victim funds - and other funds including Boston Marathon bombings
Unintentional Torts: Negligence
Damages: -designed to compensate P for losses suffered -sometimes punitive damages available- typically reserved for intentional torts and gross negligence-- not simple negligence -damages for personal injury NOT taxable
EEOC in its ADAAA regulations gives examples of specific impairments that can easily lead to conclusion that they substantially limit a major life activity
Deafness, blindness Partially or completely missing limbs Mobility impairments requiring use of wheelchair Autism Cancer Diabetes HIV infection Major depressive disorder PTSD Obsessive compulsive disorder
Intentional Torts Against Persons: Defamation
Defamation in the business context can be an issue for existing businesses -Fuchs v. WCPO case -Tell the story - Penelope Orr -review slides on Fuchs v. WCPO -- 58-88
Intentional Torts Against People
Defenses to Defamation. -Truth is generally an absolute defense. -Privileged (or Immune) Speech. Absolute: judicial & legislative proceedings. Qualified: Employee Evaluations.
Intentional Torts Against Persons: Defamation
Defenses to Defamation. Public Figures: -Exercise substantial governmental power or are otherwise in the public limelight. -To prevail, they must show "actual malice", i.e., the statement was made with either knowledge of falsity or reckless disregard for the truth.
Title VII of the Civil Rights Act of 1964- and other anti-discrimination laws
Designed to prevent employers from making adverse employment decisions - because an employee belongs to a protected class Race, color, religion, sex and national origin - are protected classes under T7 Age protected class under ADEA & Disability protected class under ADA
Title VII- proof
Direct evidence of discrimination is very rare So - T7 plaintiffs are permitted to prove discrimination by indirect or circumstantial evidence - generally this means establishing that member of protected class treated differently than employees outside of protected class McDonnell Douglas case - important Supreme Court case that establishes framework for proof - by circumstantial - not direct evidence
Reducing Employee Related Litigation Risk: Employee Evaluations
Do them right or don't do them at all. When evaluating an employee's performance, the supervisor must be timely, honest, specific and tactful. Evaluation criteria must be objective and job-related. A copy of all performance appraisals should be signed by the employee in his/her personnel file Performance problems should be documented and communicated to the employee as they arise.
Drug Patents
Drug companies can make millions/billions on patented chemical formulas
Unintentional Torts: Negligence- Duty of Care and Breach
Duty of Landowners/Occupiers. -Duty to Warn Business Invitees of Foreseeable Risks (knew or should have known) -Duty to discover and remove hidden dangers that might injure invitees. EXCEPTION: Open and Obvious Risks. Examples include icy conditions, other hazards that are easily perceived
Unintentional Torts: Negligence- Duty of Care and Breach
Duty of Professionals: -Professionals typically owe higher duty of care based on special education, skill or intelligence. -Breach of duty is called professional malpractice. -Judge conduct of M.D. against other M.D.s (judge specialist against specialist - did tortfeasor cardiologist act below standard of care of reasonable cardiologist?) -Judge conduct of engineer against reasonably competent engineer -Judge conduct of lawyer against reasonably competent lawyer
Sexual Harassment - Preventing claims
ERs can minimize exposure to SH claims if they: -Design, implement and enforce policy prohibiting sexual harassment -Educate and train ALL employees about nature of sexual harassment - company's zero tolerance and internal procedure for reporting -Respond to - and investigate all claims of sexual harassment
What does the Older Workers Benefit Protection Act require?
ERs must give EEs something of value in exchange for release of claims Agreement must be in writing Must advise EEs that they have right to seek advice from a lawyer Must give EE 21 days to consider offer and - there is a 7 day right to rescind agreement after it is signed
Employment Law
Employees have other duties though - that arise outside of the contractual relationship - they are an agent - for their employer (also called principal) We have talked about principal/agent a little bit in the Torts section - respondeat superior - let the master answer respond for the negligent conduct of his servant (EE)
What is strict liability in regard to product liability?
Even if manufacturer of product has taken every precaution - if he sells a product that is defective and it causes injury - he is liable
Discrimination Based on Age
Even in this environment, ERs are still concerned when they have to make decisions involving older workers Typical situations: Buy a release Must comply with Older Workers Benefit Protection Act (OWBPA): OWBPA requires that: -ERs must give EEs something of value in exchange for release of claims -Agreement must be in writing -Must advise EEs that they have right to seek advice from a lawyer -Must give EE 21 days to consider offer and - there is a 7 day right to rescind agreement after it is signed
Discrimination- retaliation claims
Every anti-discrimination law (T7, ADEA, ADA, FMLA) along with other employment statutes (like worker's compensation) - contain anti-retaliation provisions So if EEs object to a discriminatory act, file a charge of discrimination or participate in the process (i.e., as a witness) - they are protected against adverse employment action by anti retaliation provisions in the various statutes referenced above It shall be an unlawful employment practice for an employer to discriminate against any individual... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter
Intentional Torts Against Persons: Defamation
Examples of libelous and non-libelous statements -- The following are a couple of examples from California cases; note the law may vary from state to state. Defamatory (when false): -Calling an attorney a "crook" -Describing a woman as a call girl -Accusing a minister of unethical conduct Not defamatory: -Calling a TV show participant a "local loser," "chicken butt" and "big skank" -Changing product code name from "Carl Sagan" to "Butt Head Astronomer"
Wage and Hour Laws: What EEs are exempt from the FLSA - not covered by the FLSA?
Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals Employees of certain seasonal amusement or recreational establishments Farm workers employed on small farms
Defenses to Negligence
Express Assumption of Risk: -Express assumption of risk usually takes the form of a written agreement between the plaintiff and defendant. -An example of this is where the plaintiff engages in an hazardous activity like skiing, parasailing, go-cart racing or skydiving. They may be required to sign a waiver stating that they are assuming all the risks associated with skydiving, and are will not pursue litigation if injured -Exculpatory clause (a waiver)
What are the procedures under the ADA?
Focusing on first duty, plaintiff must show: -He/she has a "disability." -He/she is otherwise qualified for the employment in question - that is he/she can perform essential functions of the position with or without reasonable accommodation; and -He/she was excluded from employment solely because of the disability.
Intentional Torts Against Persons: Fraud
Fraudulent Misrepresentation: not a personal injury - but injures economic interests Elements: Misrepresentation of material fact; Intent to induce another to rely; Justifiable reliance by innocent party; Damages as a result of reliance; Causal connection. Distinguish Fact vs. Opinion (not puffery).
What are the four degrees of trademark protection?
Generic Descriptive Suggestive Arbitrary or fanciful
Paraplegic confined to a wheelchair -applies for a job as a UPS delivery person- and is denied job. Is this discrimination?
He must prove: -He has a disability -But can he perform essential functions of job with or without reasonable accommodations? -If an employee can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. What are essential functions? Reasonable accommodations??
Sexual Harassment - Hostile Work Environment
Hostile Work Environment claims: -much more prevalent than QPQ claims. -no need for conduct to be directly tied to tangible job benefit or detriment -conduct can be engaged in by supervisor - co-worker - even customer
Title VII - procedure
How does a P alleging illegal discrimination assert a T7 claim? Plaintiff EE must exhaust administrative remedy through EEOC charge process - before filing T7 suit (in federal court) - WHY? - because it is a federal law - and therefore a Federal Question lawsuit Describe EEOC - The Equal Employment Opportunity Commission (EEOC) is the primary enforcer of federal civil rights legislation in the United States.
Hiring- what can Employers NOT ask?
How old are you? Do you have kids? Are you a U.S. citizen?
Employment law - discrimination - remedies available to successful plaintiff: Reinstatement and hiring.
If the plaintiff was discharged unlawfully, the court may order her to be reinstated, with no loss of seniority. If the employer unlawfully refused to hire her, the court may order that she be hired, and credited with the seniority she would have earned if she had been hired earlier. If there truly is no vacancy, then the court will order "front pay" instead of reinstatement or hiring. The amount of front pay will be based on an estimate of how much she would have earned in the future.
Wage-Hour Laws: Minimum Wage Requirements
In 2010, FLSA minimum wage is $7.25/hour in covered industries. Effective January 1, 2015, the Ohio minimum wage is $8.10 per hour. -Applies to workers of 16 and older working for employers with an annual gross receipts of at least $297,000. -Workers of smaller companies, and for under 16 year olds: the federal minimum wage of $7.25. For tipped employees, the minimum wage rose to $4.05 per hour, a six-cent increase.
Self Defense
In Ohio, a person has a legal right to use force to defend himself, another person, his house, or even his property. The level of force that may be lawfully used varies, of course, depending on the circumstances of the case. Many people do not believe that a person in Ohio has the right to self-defense. In fact, the defense of self-defense is firmly established in Ohio law. Of course, the use of deadly force to defend oneself requires greater justification than does the use of non-deadly force. In Ohio, the right of self-defense is an affirmative defense, meaning that the burden of proof rests on the accused to prove that he acted in self-defense when he inflicted the deadly force.
Copyrights: protection/exceptions:
In general, it is illegal for anyone to do any with a work created by you without your permission but there are some exceptions and limitations to your rights as a copyright holder One major limitation is the doctrine of "Fair Use,"
Patents Requirements
In order to obtain a patent, the invention must: Be unique (novel) Be useful (utility) Be non-obvious Be disclosed Be described so others can make it (enablement) These requirements are established through the patent application process In exchange for: disclosure of invention (disclosure) and telling the world how to make it (enablement) - Owner of patent - the inventor or the person/entity to whom patent was assigned (assignee) gets a monopoly for 20 years from date patent application is filed to control manufacture, sale or use of invention After monopoly ends/protection period lapses, anyone can make, use or sell the invention.
PRETEXT examples
Inconsistent treatment as compared to peers (headband example) Deviation from prior practice or policy. For example, the employer always engages in progressive discipline (PD). Verbal warning first. Written warning. Followed by a second written warning. Then termination. But with this particular case, employer did not follow PD policy. Adverse discriminatory statements establishing race, gender, religious animus Statistics - - especially in reduction in force (RIF) - - 40% of workers were over the age of 40 before the reduction in force. After the reduction in force 20% of the workers are over the age of 40.
Copyrights:
Intangible property right granted by federal statute to creator of a literary or artistic production of a specified type.
Example of monopoly of patented drug and then it expiring
Inventor/assignee (usually drug company) gets exclusive right to control manufacture, use and sell invention - WOW!! That's a lot of cash (think arthritis drug Vioxx) But then after protection period/20 year monopoly lapses, it becomes a generic drug - anyone can make, sell or use
Title VII
Legal Theories under Title VII. -Disparate Treatment: employee must prove intentional discrimination against him or her in employment based on a proscribed factor (pretext not enough). -Disparate Impact: a facially neutral employment practice has a discriminatory impact on a protected class (DO NOT COVER)
Overview of Civil Rights Legislation
Legislative regulation of employers starts with FLSA - outlaw child labor - establish minimum wage and 40 hour work week. And union legislation in the 1930's. Then civil rights movement culminates with Title VII of the Civil Rights Act of 1964 (T7): Prohibits discrimination based on race, religion, national origin, gender/sex (includes pregnancy, childbirth and medical conditions) For private employer T7 is most significant of federal civil rights laws becomes basis for all other anti-discrimination statutes. Age Discrimination in Employment Act of 1967: cannot discriminate against people who are 40 years old or older based on age. Americans with Disabilities Act of 1990 (ADA): Prohibits discrimination based on disability and requires Employers to make "reasonable accommodation" of disability without "undue hardship." Disabled have access to employment, transportation, public accommodations, and telecommunications services.
Duties of Agents and Principals: What are the Agent's Duties to the Principal?
Loyalty: fundamental duty as fiduciary (no conflict of interest). - May not compete with principal. - May not use or disclose confidential information Notification: to principal of all matters concerning subject matter of agency. -Obedience. -Act with care and skill.
What must you prove in regards to retaliation?
MUST PROVE: -EE participated in statutorily protected activity -Adverse employment action ensued -Causal connection
What are considered reasonable accommodations?
Making work facilities accessible Restructuring jobs or modifying work schedules Acquiring or modifying equipment or devices
Employment law - discrimination - remedies available to successful plaintiff: What are the caps on damages?
Most federal statutes have caps (upper limits) on how many dollars can be recovered for compensatory damages and punitive damages. These caps range from $50,000 to $300,000 (based on the compensatory and punitive damages combined), depending on how many employees an employer has. Two forms of damages are excluded from the caps: back pay and front pay.
Unintentional Torts: Negligence- Duty of Care and Breach
Must judge tortfeasor's conduct against the conduct of a "reasonable person" -That person must act as a reasonable person should act under the same or similar circumstances -The Court/judge determines what is reasonable under circumstances
Tort Law: Damages
ONCE JURY DECIDES TF IS LIABLE/RESPONSIBLE, THEY MUST DECIDE WHAT DAMAGES SHOULD BE AWARDED TO INJURED PERSON -Injured party entitled to recover damages from TF -Typically damages are designed to compensate for the harm caused
Copyrights: Protected Expression
Only the expression of an idea can be copyrighted -- not the idea itself -To be protected, a work must be "fixed in a durable medium."
Title VII - proof: Basic framework under McDonnell Douglas
P/EE establishes prima facie case of discrimination - Then burden shifts to D/ER to establish a legitimate non-discriminatory reason for adverse employment action (LNDR) Then if D does that - burden shifts back to P to show that the LNDR is not the real reason for the adverse employment action - that the LNDR is really a pretext for illegal discrimination
How does the ADA define disability?
Physical or mental impairment that "substantially limits one or more of major life activities" MAJOR LIFE ACTIVITIES include: Walking Seeing, hearing, speaking Learning Caring for oneself Performing manual tasks
Title VII - procedure
Plaintiff EE must exhaust administrative remedy through EEOC charge process - before filing suit And in which court do T7 plaintiffs get to file suit? -Administrative Requirements -Timing/Statute of Limitations -Covered employers -Covered employees -Damages available -Damages caps -Jury trial
Title VII - proof P/EE's prima facie case
Plaintiff is a member of protected class He/she was qualified to perform job He/she suffered adverse employment action - such as termination He/she was replaced by an employee outside protected class - OR - that similarly situated employees outside protected class were treated differently (generally - better)
Discrimination Based on Age: Order and method of proof - same as T7 prima facie - LNDR - Pretext:
Plaintiff is a member of protected class He/she was qualified to perform job He/she suffered adverse employment action - such as termination He/she was replaced by an employee outside protected class - OR - that similarly situated employees outside protected class were treated differently (generally - better) - BUT in replacement case plaintiff need not prove replacement outside of protected class (i.e. under 40) - need only prove replacement substantially younger
Sexual Harassment - Preventing claims
Policy - communicate/train: No good unless it is disseminated to employees Must conduct training - best to train all - but at a minimum - train managers/supervisors Must investigate: Duty arises as soon as any evidence of SH - the duty arises even if the EE who reports asks ER not to investigate
Sexual Harassment - Preventing claims
Policy itself: Generally - articulate goal/policy of company -- to maintain a workplace free of harassment Define/describe SH - zero tolerance State that it will result in disciplinary action up to and including termination/discharge Describe reporting procedure - designate to whom claims of harassment should be reported - imperative to have dual reporting channels
PATENT - PROCESS/COST
Procedures for obtaining a patent are time-consuming and expensive Complex application must be filed with USPTO Application must describe invention in detail and in some cases include a diagram/illustration Once application is submitted, a patent examiner is assigned to determine whether invention is patentable - the back and forth between applicant and examiner - called prosecution usually takes at least a year and often more than two years As of December 2010, utility patent application for individuals and companies with < 500 employees was $165 + $755 if patent issued Additional fees required over life of patent to keep it in force -- >$5,000 Attorney fees and search firm fees bring cost up to $15,000 or more
Title VII of the Civil Rights Act of 1964 (T7):
Prohibits discrimination based on race, religion, national origin, gender/sex (includes pregnancy, childbirth and medical conditions)
Design Patents:
Protect shape or appearance of items (such as computer icons, furniture, design of running shoes) Have become more popular in recent years example: Apple v. Samsung case
What are the two types of SH histrionically?
Quid pro quo and hostile work environment
Vicarious Liability?
Respondeat Superior: ER liable for the torts of his EEs when they are acting in the scope of their employment
What jobs can 14- and 15-year-olds do?
Retail work in connection with cars and trucks such as dispensing gasoline or oil and washing or hand polishing; some kitchen and food service work including reheating food, washing dishes, cleaning equipment, and limited cooking; 15-year-olds who meet certain requirements can perform lifeguard duties at traditional swimming pools and water amusement parks.
Intentional Torts Against People: Assault and Battery is where criminal law intersects with civil/tort law. assault and battery is a crime and a tort (civil wrong or harm)
Road Rage may be able to pass for Assault and Battery if you can prove and identify the person who assaulted you and you may be able to sue for any personal injuries or property damage to your vehicle, in addition to potential criminal charges.
Sexual Harassment - Hostile work environment ("hwe"): How do courts determine whether a sexually hostile work environment has been created?
She/he is a member of a protected class: Same Sex Sexual Harassment: actionable under Title VII. Oncale v. Sundowne~ 510 U.S. 17 (1999). Remember - race - national origin - religion can be focus of harassment She/he was subjected to unwelcome harassment (see conduct we discussed above) Harassment was sufficiently severe/pervasive to create hostile work environment (here's where the courts get into the act)
Common Law Trademark Protection v. federal registration
Simply using the name you pick in commerce gives the business owner common law trademark protection (think Skyline Chili) Advantages of registering the mark: -the exclusive nationwide ownership of the mark; -the refusal by the Trademark Office to register close variations of the mark used in connection with similar goods or services by others; -the right to use the symbol ® to denote the registered status; -the act of putting other later users on notice by way of the public registration. In so doing, the mark will be presumed by law to be known by everyone.
Discrimination- BFOQ: When is discrimination legal?
Sometimes discrimination can be legal: But in order to discriminate - ER must prove that being member of the protected class is ESSENTIAL to the job In other words ER must prove that no one outside of the desired group could perform the job
What are the two compensatory damages for Tort Law?
Special: quantifiable losses, such as medical expenses, lost wages, and benefits General: non-monetary, such as pain and suffering, damage to reputation
Tortfeasor (TF)
THE PERSON WHO ENGAGES IN TORTIOUS ACTIVITIES (IS NEGLIGENT, DEFAMES SOMEONE, DEFRAUDS SOMEONE)
Copyrights
That's what copyright is all about. It reflects our appreciation for all the hard work that goes into creating "original works of authorship" and respect for the right of the creator of that work to control what people can and cannot do with it.
Discrimination Based on Age
The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.
Who is liable in Tort Law? Who may also be liable?
The TF is always responsible (or liable) for the torts he/she commits - BUT sometimes - others will be liable as well Vicarious liability - respondeat superior ER liable for the torts of his EEs when they are acting in the scope of their employment
FEDERAL PATENT GRANT PROVIDED IN U.S. CONSTITUTION
The U.S. Constitution authorized the Congress "To promote the progress of . . . useful arts, by securing for limited Times to . . . inventors the exclusive rights to their . . . discoveries."
Employment law - discrimination - remedies available to successful plaintiff: Back Pay
The court will order payment of _____ from the date of discrimination to the date of the court judgment. In order to make the plaintiff whole, this will include wages, probable overtime payments, sick leave, vacation, pension benefits, health insurance, and anything else that has a monetary value. The court will then reduce that amount (mitigation of damages) by the amount that the plaintiff earned (or with reasonable effort should have earned) during the same period of time.
Intentional Torts Against Persons: Defamation
The elements that must be proved to establish defamation are: -a publication to one other than the person defamed; -a false statement of fact that is understood as; -being of and concerning the plaintiff; -tending to harm the reputation of plaintiff. -If the plaintiff is a public figure, he or she must also prove actual malice.
Copyright- Fair Use doctrine
The exclusive rights of the copyright owner are not unlimited. The copyright law establishes some limitations on these rights. defined: allows limited copying of copyrighted works for educational and research purposes. The copyright law provides that reproduction "for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not an infringement of copyright
Sexual Harassment - Hostile work environment
The fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases. "Title VII comes into play before the harassing conduct leads to a nervous breakdown," Harassed employees do not have to be Jackie Robinson, nobly turning the other cheek and remaining unaffected in the face of constant degradation. Whenever the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse, it is actionable under Title VII.
Example of Hiring dilemma
The problem with the concept of "illegal" interview questions is that, while they may elicit answers that cannot be used in consideration for the job, they are also part of our daily reality. When interviewing for a job there are literally thousands of reasons not to hire every single candidate. Proving that the reason you weren't hired was illegal discrimination is almost impossible. You would have to prove that not only were you the best candidate but also that the reason you weren't chosen was an illegal one, and not a perfectly legal reason. For instance, someone could claim that he wasn't hired because he was over 40 but the ER could successfully argue that they hired someone else because the person they hired worked for Company X in the past and they've had good experience with people they have hired from Company X. So unless the interviewer has left a trail of email messages saying, "Don't hire Bob! He's old!" the aspiring plaintiff will be out of luck. Conclusion - managers should not be paranoid about conversations that wander into "dangerous" territory. And candidates shouldn't stiffen and assume the worst if a hiring manager asks one of the "forbidden" questions. It's doubtful that they are asking with the intent of illegally discriminating. It's more likely that they are making conversation.
Wage-Hour Laws- no child labor: 16 and 17-year olds
They may work unlimited hours, however, there are restrictions on the jobs that they can perform. Any job that has not been declared hazardous by the Secretary of Labor is permissible for 16- and 17 year olds. Think about restaurant jobs -- Examples of equipment declared hazardous in restaurants include power-driven meat processing machines (saws, patty forming machines, grinding, chopping or slicing machines), commercial mixers, and certain power-driven bakery machines
Unintentional Torts: Negligence
Tortfeasor does not intend the consequences of the act or believes they will occur BUT, tortfeasor's conduct creates a foreseeable risk of injury to either person OR property
Degrees of Trademark Protection
Trademark protection is not one size fits all but instead the protection is distributed across a scale of four levels with level four receiving the highest protection. The degree of protection is generally correlated to the degree of distinctiveness.
Discrimination Based on Age: Types of discrimination prohibited
Treating older workers worse than younger workers - by targeting them for discipline, layoffs Making decisions based on stereotypes about older workers - for example refusing to include older workers in workplace training programs - because ER wrongly assumes older workers unable to learn new things
Intentional Torts Against Property
Trespass to Land: occurs when a person, without permission: Physically enters onto, above or below the surface of another's land; or Causes anything to enter onto the land; or Remains, or permits anything to remain, on the land.
Wage and Hour Laws: In other words - when does an ER have to pay minimum wages and OT?
Typically the EEs who are never exempt (always covered by the Act) - and ER must pay minimum wages and OT are Blue collar EEs -- traditionally - factory type workers - work with hands - work requires physical skill and energy - carpenters, electricians, plumbers, etc. - but service workers - like EEs who work at fast food restaurants, grocery stores, retail establishments - are covered under FLSA
Wage and Hour Laws: Overtime Provisions Rule
Under FLSA, employees who work over 40 hours/week are entitled to 1.5 times her hourly wage for those hours worked.
What can be trade marked?
Verbal: Verizons "can u hear me now" Visual: the Ford logo Trademark sound: MGM's lion's roar, Pillsbury Doughboy's giggle Shapes and forms: (Volkswagen car) Fragrances: colognes and perfumes Flavors: McDonalds recipes
Punitive damages in regards to Tort Law
Very rare - but if there is an intentional tort or conduct that is grossly negligent - think McDonald's Hot Coffee case/BP oil spill or fraud cases) - then jury may award punitive damages Designed to punish TF/make an example of TF (sometimes called exemplary damages) Only awarded if jury finds that TF acted maliciously or with conscious disregard for the rights and safety of others
Sexual Harassment - Vicarious Liability
Vicarious Liability for Hostile Environment: under respondeat superior - employers can be liable for sexual harassment in the workplace. A "master [principle] is subject to liability for the torts of his servants [agents] committed while acting in the scope of their employment."
Harassment - racial, sexual/gender-based, based on religion, national origin
While focus is often on sexual OR gender-based harassment -- any type of harassment - racial - sexual/gender-based harassment - or harassment based on EE's religion or national origin is a violation of Title VII because action taken (harassment) is engaged in - because of the employee's membership in a protected class (race, gender/sex, national origin) This is discrimination that violates T7
Intentional Torts Against Property: Conversion
Wrongful possession or use of personal property without permission. Even if you are just kidding
Is copyright protection automatic?
Yes.. registration is not required. but, federal registration gives author statutory protections
What is a Tort?
a civil *not criminal* wrong/act that injures: -a person (auto accident cases) -their property (personal and real property) -economic interest (cant steal from each other, we cant defraud others, must tell the truth, must be loyal, disclose information, bad partner/disloyal agent) -or their personal interests (right to be left along, right to a good reputation) **for which the court will provide a remedy
Degrees of Trademark Protection: Arbitrary or fanciful
arbitrary and fanciful terms are closely related in that they both are inherently distinctive and receive the highest degree of protection.
Employment law - discrimination - remedies available to successful plaintiff: Punitive Damages
are available in cases arising under Title VII (discrimination because of race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA).
Employment law - discrimination - remedies available to successful plaintiff: Compensatory Damages
are available in cases arising under Title VII (race, sex, national origin, religion) and the Americans with Disabilities Act (ADA), but not the Age Discrimination in Employment Act (ADEA). This will include things that are somewhat imprecise and don't always have a clear monetary value such as humiliation, emotional distress, inconvenience, loss of reputation.
Intentional Torts Against People: Assault and Battery
assault is an intentional, unexcused act that: -creates a reasonable apprehension of fear of immediate harmful or offensive contact. no contact is actually necessary. battery: the completion of the assault. it is intentional and unexcused. harmful, offensive or unwelcome, physical contact. Plaintiff may be compensated for physical and emotional harm.
How long does a copyright last?
automatic protection for life of the author, plus 70 years.
Degree of trademark protection: Suggestive mark
automatically receive protection even when there is no secondary meaning if the term implies something without actually describing it. -For example, the word "Coppertone" is suggestive of sun-tan lotion, but does not specifically describe the underlying product. Some exercise of imagination is needed to associate the word with the underlying product. -At the same time, however, the word is not totally unrelated to the underlying product. -Like arbitrary or fanciful marks, suggestive marks are inherently distinctive and are given a high degree of protection.
Degree of trademark protection: Descriptive mark
because they are not inherently distinctive, are not generally given trademark protection unless they acquire a secondary meaning due to the public association of the mark with the holder's product or service. For example, "Holiday Inn," "All Bran" and "Vision Center" all describe some aspect of the underlying product or service (respectively, hotel rooms, bran breakfast cereal, optical services). They tell us something about the product. They are protected only if they have acquired "secondary meaning."
Define: At-Will Employment
contract that can be terminated at any time and for any reason
Copyrights what works are protected?
creative things: -Literary Works (novels, poems) -Musical Works, Lyrics, Sound recordings -Dramatic Works (Plays, films) -Choreographic Works (dance) -Art, graphic designs
Intentional Torts Against People: Defamation
damages for libel (written defamatory statement) -general damages are presumed; plaintiff does not have to show actual injury -general damages include compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress
Wage-Hour Laws - no child labor: If you are under 14 you are only allowed to:
deliver newspapers to customers; babysit on a casual basis; work as an actor or performer in movies, TV, radio, or theater; work for a business owned entirely by your parents as long as it is not in mining, manufacturing, or any hazardous occupation.
Degree of trademark protection: Generic mark
describe an entire class of products, and they are not trademark protected. For example, the term "Computer" is a generic term for computer equipment. _______ are entitled to no protection under trademark law. Thus, a manufacturer selling "Computer" brand computers (or "Apple" brand apples, etc.) would have no exclusive right to use that term with respect to that product. Or a provider using the name "Overnight Delivery Service" The concern of some very well known marks is that they might become descriptive - or generic such as - back in my day - "Xerox" that document - instead of "copy" that document
Trademarks defined:
distinctive word, name, mark, motto or emblem that a manufacturer stamps, prints or otherwise affixes to the goods it produces
Sexual Harassment - Vicarious Liability: What about Co-Workers and Non-Employees who engage in conduct that gives rise to HWE claims
employer generally liable only if it knew, or should have known, about harassment and failed to take immediate action. -Employee notice to supervisor is notice to employer under agency law.
What is the Doctrine of Respondent Superior
employer is vicariously liable for employee's negligent torts committed within the agent's "course and scope of employment"
Liability in Agency Relationships: Liability for Agent's Negligence- Doctrine of Respondeat Superior
employer is vicariously liable for employee's negligent torts committed within the agent's "course and scope of employment."
Worker Health and Safety: State Workers' Compensation Laws:
establish an administrative procedure for compensating workers injured on the job. Instead of suing for injuries, a worker is compensated. -EE - no need to prove that ER was "careless" aka "negligent": the worker who is injured is not required to prove his injuries. Just that they happened at work and then he will be paid.
What are remedies for Patent Infringement?
injunction and monetary damages (often measured by reasonable royalty) treble damages for "willful" infringement (which is hard to prove)
Liability in Agency (Employer-employee/principle-agent) Relationships
liability for employee's/agent's negligence: -Doctrine of Respondent Superior
Quid Pro Quo:
literally translates from Latin as "this for that" job benefits in exchange for sexual favors A supervisor (or someone with the power to confer workplace benefits) offers those benefits in exchange for sexual favors - or threatens adverse action if the EE does not comply with request for sexual favors Basic ingredients of QPQ: 1.Supervisor 2.Requesting sexual favors of employee he/she supervises 3.That is not welcomed by the employee Typically, in a QPQ case, supervisor's "offer" is rejected by EE and EE suffers adverse employment action (fired)
Degree of Trademark Protection: Arbitrary
marks have real words that are meaningless with respect to the product or service Examples include - Apple Computer - Skyline Chili
Trade Secret defined:
means information, including a formula... program... method, technique, or process, that: derives independent economic value... from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy
Patent examples:
microwave, iPad, monopoly, refrigerator
At-Will Employment - contract between ER and EE
most employees are employees at-will - which means they serve at the will - or at the discretion of their employer At-Will Employment: contract of indefinite duration - the terms of which can be changed or terminated whenever the employer wants - only good news for the employee - he/she can also terminate the relationship at any time for any reason
Wage-Hour Laws- no child labor: once you turn 18
most youth work rules do not apply. there are no limits to the number of hours 18-year-olds can work. you can also perform any job.
The Patent Right
patents grant a right to exclude everyone in the United States from: Making Using Selling Offering for Sale Importing the specific patented invention
What is a license?
permission to use copyrighted work
Examples of Tort Law:
personal injury: -car accidents, liability of landowner, product liability damage to property: -allergy group building, construction trespass defamation: -WPCO I-Team investigation breach of fiduciary duty (duty of loyalty): -radiation oncologist case -many departing employee cases
Rights employees think they have:
privacy. however, there is electronic monitoring in workplace. ECPA: "business-extension exception" allows employer to monitor. Stored Communications. The right not to have a mean/nasty/stupid/insensitive boss/supervisor You DON'T Many employees believe that having a mean/nasty/stupid/insensitive boss/supervisor gives them the right to sue their employer It DOES NOT!
Employment Relationship
simply a contract between employer and employee
What does it mean to have misappropriated a trade secret?
someone (usually an EE) steals trade secret information
Intentional Torts Against People: False Imprisonment
the intentional: -confinement or restraint of another person's activities without justification -merchants may reasonably detain customers if there is probable cause (if you think someone is stealing you can keep them until police arrive)
Intellectual property (IP)
there is significant value of IP to many corporations, which in some cases may exceed the value of physical, tangible assets. examples: Creative Therapy- Jim Borgman cartoon
What is the concern with trademark owners?
trademarks becoming generic: Asprin - Still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe but declared generic in the U.S Escalator - Originally a trademark of Otis Elevator Company Thermos - Originally a Thermos GmbH trademark name for a vacuum flask ; declared generic in the U.S. in 1963 Zipper - Originally a trademark of B.F. Goodrich
What are the 3 types of patents? Of these, what is the most common & important?
utility, design and plant -utility
Trade Secrets
valuable, secret business information can include: customer lists, plans, research, formulae, pricing information, marketing techniques P&G- R&D, marketing plans, marketing research
Employment law - discrimination - remedies available to successful plaintiff Make whole relief. In general, the idea is to provide "make whole" relief
which essentially means to put the plaintiff back into the situation she/he would have been in if the discrimination (which includes harassment) had not occurred.
Hostile Work Environment:
workplace is poisoned by gender-based inappropriate conduct that causes an employee to be less productive or unproductive.
