BusLaw Final
REGULATION OF EMPLOYMENT
REGULATION OF EMPLOYMENT
RIGHTS AND RESPONSIBILITIES TO OTHERS
RIGHTS AND RESPONSIBILITIES TO OTHERS
THE EMPLOYMENT RELATIONSHIP
THE EMPLOYMENT RELATIONSHIP
• What is required for protection from retaliation for whistleblowing under the Texas Whistleblower Protection Act?
o 1) Entitled to protection from retaliation o 2) Employee establishes actual retaliation
• What must a plaintiff prove to establish retaliation? Be able to discuss each part of the analysis thoroughly.
o 1) Protection under some statute o 2) Retaliation- actual • Employer engaged in retaliatory conduct: materially adverse conduct • Ex. Depriving employee of earned income, putting employee on probation when it's the first step to termination, reduction of work hours, reassigning to make them where somewhere they don't like • Retaliatory motive • Timing- shorter time between protected activity and time of year of the alleged retaliatory conduct, the more it appears cause and effect • "But for"- if none retaliation conduct, no liability under title 7
• What is a non-disclosure agreement aka confidentiality agreement?
o A contract in which an employer agrees to share information so long as the employee keeps it confidential. Can be broader than a trade secret because it is a simple voluntary agreement.
• When is profit sharing not an indicia of partnership?
o A debt by installments or interest on a loan o Wages of an employee or for the services of an independent contractor o Rent to a landlord o An annuity to a surviving spouse or representative of a deceased partner o A sale of the good will (value reputation of a business viewed as an intangible asset) of a business or property
• In what contexts might the issue of whether a worker is an employee or independent contractor arise? (Highlighted)
o A homeowner who hires a real estate broker to sell her house has not only contracted a independent contractor but also established an agency relationship for purposes of selling property o Insurance agent who is both an independent contractor and an agent of the insurance company for which he sells policies
• What relief is available to a plaintiff who successfully proves misappropriation of trade secrets under the TUTSA?
o A prevailing plaintiff may be entitled to injunctive relief and/or compensatory damages and unjust enrichment or reasonable royalty
• How is an agency relationship formed?
o A relationship is formed by an agreement between the agency and principle. Generally, the agreement need not be in writing and consideration is not required but a person must have contractual capacity to be a principle
• Be able to articulate the meaning of the term "conflict of interest."
o A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary.
• What is threatened misappropriation of trade secrets?
o A threat by a defendant to misuse trade secrets, manifested by words or conduct, where the evidence indicates imminent misuse
• List and discuss the elements of tortious interference with contract.
o A valid, enforceable contract must exist between two parties o A third party must know that this contract exists (Defendant) • Constructive knowledge standard o This third party (defendant) must intentionally induce a party to the contract to breach the contract (3rd party) • By engaging in predatory behavior- actions undertaken with the intention of unlawfully driving competitors completely out of the market
• Generally, what is a covenant not to compete aka non-compete agreement? Again, be sure that, as a practical matter, you know what you're talking about when you use this term.
o Agreement between an employer and employee in which the employee promises not to compete with the employer after the termination of the relationship for a certain amount of time o Restricted covenant and highly scrutinized for limiting ones ability to make money and livelihood
• Who must comply with the ADA?
o All employers must reasonably accommodate the needs of persons with disabilities unless to do so would cause the employer to duffer an "undue hardship". o An exception is state government employers who are generally immune under the Eleventh Amendment
• List the theories of discrimination that apply to Title VII, the ADA and the ADEA.
o Disparate treatment o Disparate Impact- the employee must prove that an employment policy or practice has a disparate impact on a protected group o Race discrimination o National Origin Discrimination o Religious Discrimination o Gender Discrimination o Harassment
• Explain the theoretical difference between disparate treatment and disparate impact discrimination.
o Disparate treatment: the plaintiff must prove that he was treated differently because of his protected status: • He is a member of a protected class • He was qualified for the position at issue • He suffered an adverse employment decision • Others not in the same protected class did not suffer similar adverse employment decisions • Employer defense: offer legitimate, non- discriminatory reason for his employment decision or he may rebut an element of the prime facie case • Employee's rebuttal: Pretext- the employee may rebut the employers proffered reason for the employment decision by offering evidence that it is pretext for a discriminatory motive o Disparate Impact: • The employee must prove that an employment policy or practice has a disparate impact on a protected group • Employers defense: if the employer can establish that the policy or practice is a business necessity, he will prevail. The employer may also disprove the employees disparate impact evidence • Employee's rebuttal- if the employee can prove that less discriminatory means of satisfying the business necessity were available and the employer refused to adopt them, the employee will prevail
• Explain the employment at will doctrine.
o Either party may terminate the employment relationship at any time for any reason unless doing so violates an employees statutory or contractual right
• What is a non-solicitation agreement?
o Employee agrees not to solicit customers of from employer o Employee agrees not to solicit former employer's employees
• Who must comply with Title VII?
o Employers, labor organizations/ agencies with 15 or more members/ employers
• What administrative responsibilities or risks does an employer have vis a vis an employee that it does not have vis a vis an independent contractor?
o Employment laws apply to only employer- employee relationships. Statutes governing social security, withholding taxes, workers compensation, unemployment compensation and workplace safety apply only when an employer- employee relationship exists. Laws that prohibit employment discrimination apply only to employers and employees
• Generally, what do state Workers' Compensation statutes provide? How do they mitigate an employer's risk of liability for negligence to an employee?
o Establish an administrative procedure for compensating workers who are injured on the job. o A workers right to recover is predicated on the workers status as an employee and the fact that the injury was accidental and occurred on the job or in the course of employment regardless of fault o In exchange for workers compensation benefits, an employee may not sue the employer for negligence o Generally allows an employer to purchase workers compensation insurance from a private insurer or a state fund
• Describe the National Labor Relations Act's ("NLRA's") protection of employees for engaging in concerted activity for mutual aid. This protection is referred to as employees' Sec. 7 rights because it is found in Section 7 of the NLRA.
o Establishes the rights of employees to engage in collective bargaining and to strike, defines a number of employer practices as unfair to labor, established the National Labor Relations Board which overseas union elections and prevents employers from engaging in unfair and illegal union- related labor practices
• What are the prohibited bases of discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII")?
o Discrimination (making an employment decision) based on: SCORR • Sex, color, national origin, race, religion
AGENCY FORMATION AND DUTIES
AGENCY FORMATION AND DUTIES
• Identify two statues that address the theft of trade secrets and major differences between them.
o Although trade secrets have long been protected under common law, today most state laws are based on the: • Uniform Trade Secrets Act, which has been adopted in 47 states • Economic Espionage Act, which makes theft of trade secrets a federal crime o Those who disclose or use another's trade secret without authorization are liable to that other party if: • They discover the secret by improper means • Their disclosure or use constitutes a breach of a duty owed to the other party o Stealing confidential business data by industrial espionage, such as by tapping into a competitors computer, is a theft od a trade secret without any contractual violation and is actionable in itself
• Discuss the administrative process that a prospective plaintiff must take before filing a lawsuit alleging a violation of Title VII, the ADA or the ADEA?
o An employee alleging discrimination must file a claim with the EEOC before a lawsuit can be brought against an employer. The EEOC may investigate the dispute and attempted to obtain the parties' voluntary consent to an out of court settlement. If a voluntary settlement agreement cannot be reaches, the EEOC may file a suit against the employer on the employees behalf o The EEOC does not investigate every claim of employment discrimination, generally taking only priority cases such as cases that may affect many workers and those involving retaliatory discharge o If the EEOC decides not to investigate a claim, the employee may bring his or her own lawsuit against the employer
• What is required for a covenant not to compete to be enforceable in Texas? If you quote the statute, be sure you understand what it means and can articulate that.
o Ancillary to an otherwise enforceable agreement (interest to protect) o Reasonable in its restrictions
• When is a non-solicitation agreement enforceable?
o Ancillary to an otherwise enforceable agreement (interest to protect) o Reasonable in its restrictions
• To what remedies might a prevailing plaintiff be entitled under Title VII?
o Back pay- amount from the time of act to time judgment becomes final o Front pay- speculative, not common o Reinstatement- not common o Compensatory- non economic (general) for pain and suffering, inconvenience o Malice= punitive • $50,000 15-100 employees • $300,000 501+ employees (per plaintiff not claim) o *CAPPED on # of employees
• What remedies are available to a whistleblower who is the victim of retaliation under the Sarbanes Oxley Act and Dodd Frank?
o Back pay- owed from the retaliation o Front pay- what they would have been paid o Reinstatement o General damages for pain and suffering
• What does the prohibition on race discrimination ban?
o Based on race applying to all racial groups. It includes discrimination based on the race of an applicants or employees spouse, and racial harassment
• What must a plaintiff prove to establish harassment based on a hostile environment?
o Be unwelcome by the victim o Be based on gender o Be sufficiently severe or persuasive to create an abusive working environment o Affect a term, condition or privilege of employment
• What does the prohibition on national origin discrimination ban?
o Broadly construed to include physical, cultural, and linguistically characteristics of a group. It does no prohibit discrimination based on citizenship. Citizenship an the right to work in the US are addressed by the Immigration Reform and Control act of 1986
• What are English Only policies?
o Can be discriminatory based on national origin if it's a blanket policy- presumption of discrimination is already established o This English-Only Language Policy addresses the business necessity of requiring employees to use English in speaking and in taking direction in specific circumstances.
• What are the sources of law that govern agency relationships?
o Common law- when an agency relationship exists, they have certain duties each owes to each other that arise out of mere existence of the agency relationship o Statutory law- specific types of agency relationships ex. Partners o Contract law- governs relationships
• What common law duties does the principal owe to the agent? Be sure you understand what each requires.
o Compensation- principals duty to pay the agent for services rendered and payment in a timely manner. Unless the relationship is gratuitous, must pay agreed upon value for the agents services or customary compensation if no agreed amount o Reimbursement and indemnification- the principal has a duty to reimburse the agent for any funds disbursed at the principal's request and to reimburse the agent for any necessary expenses incurred in the course of the reasonable performance, but no reimbursement of their own misconduct. Duty to compensate an agent for liabilities incurred because of authorized and lawful acts and transactions. Must compensate the agent for the value of benefits that the agent confers on the principal (amount in contract) o Cooperation- Duty to cooperate with the agent and to assist the agent in performing duties and do nothing to prevent performance • Exclusive agency: the principal cannot compete with the agency or appoint or allow another agent to compete- if breaches then exposed to liability for agents lost profits o Safe working conditions- common law requires that the principal provide safe working premises, equipment, and conditions for all agents and employees. Principals duty to inspect working areas and to warn agents and employees about any unsafe conditions
• The "outside relationship" consists of the relationship between the principal and third parties and between the agent and third parties. Considering the outside relationship, what issues may arise? You do not need to analyze/discuss these issues but should be aware of the risks.
o Contractual issues o Exposure to tort liability o Inter se?
• What is gender stereotyping?
o Courts have interpreted Title VII's prohibition against sex discrimination to mean discrimination against men because they are men and women because they are women.
• Be able to articulate why an agent is prohibited from accepting outside benefits without the principal's consent, representing multiple principals whose interest conflict and competing with the principal.
o Creates a conflict of interest: what interest is there to maintain and protect- cannot have any other relationship or interest that would impair ability to be loyal
• What does it mean to "cure" or "waive" a conflict of interest? (Highlighted)
o Disclosure of a conflict to all relevant parties and receive their consent
• What are the sources of exceptions to an employer's right to terminate an employee at will?
o Exceptions: • Based on Contract theory- implied contracts • Based on Tort theory- in some situations, the discharge of an employee may give rise to an action for wrongful discharge under tort theories, abusive discharge procedures may result in a lawsuit for intentional infliction of emotional distress or defamation, and some courts have permitted workers to sue under the tort theory of fraud when an employer made false promises to a prospective employee • Based on Public Policy- discharge for whistleblowing
• What is required for protection from retaliation for whistleblowing under the Dodd Frank Wall Street Reform and Consumer Protection Act ("Dodd Frank")?
o Expanded Sarbanes Oxley with provisions extensive whistleblower protections for employees in the financial services industry
• What protection does Title VII afford to women who are pregnant?
o Expanded the definition of gender discrimination to include discrimination based on pregnancy- women effected by pregnancy, childbirth, or related medical conditions must be treated- for all employment related purposes, including the receipt of benefits under employment benefit programs- the same as other persons not so affected but similar in ability to work
• What are the rights of the partners?
o For the management, each has one vote in partnership matters regardless of capital contribution o In regards to general matters, majority rules
• What relief is available to a plaintiff who successful proves threatened misappropriation of trade secrets under the TUTSA?
o For threatened misappropriation, a prevailing plaintiff is entitled to injunctive relief only
• What must an employee prove to establish disparate treatment by failure to accommodate his religious practices?
o Has a bona fide religious belief that conflicts with an employment requirement o Informed the employer of this belief, and o Was disciplined for failure to comply with conflicting employment requirement Example: Blockbuster employee who didn't shave or cut hair due to religious reasons and was fired after new manager came in and fired him for not following clean cut policy
• What are the risks of misclassifying an employee as an independent contractor? Consider which federal agencies enforce the various statutes that apply to employees.
o How a court decides this issue can have a significant effect on the rights and liability of the parties o Disputes involving employment law- federal governing employment discrimination only apply with employer- employee relationships. Protection under employment discrimination statutes provides a significant incentive for workers to claim they are employees o Disputes involving tort liability- whether a worker is an employee or an independent contractor can also affect the employers liability for the workers actions o IRS- the degree of control the business exercises over the worker- misclassifications means employer responsible for paying applicable social security, withholding and unemployment taxes
• Under the TUTSA, when is one liable for misappropriation of a trade secret acquired accidentally or by mistake?
o If the information was acquired by mistake, then one may be liable for use or disclosure of the information if he knew or had reason to know that the information was a trade secret before he materially changed his position
• How does an express or implied contract that provides for a specific duration of employment limit the employer's right to terminate the employee? (Highlighted)
o If you have an expressed or implied contract for duration of employment based on salary per period, it limits employers right to terminate o Can only terminate for "just cause," no longer at- will
• Understand and be able to apply the analysis for establishing disparate treatment. Understand the specific requirements as well as the purpose of each step in the analysis.
o If you meet the requirements, you make out the prima facie case meeting the initial burden of proof and will win unless the employer can present a legally acceptable defense o The burden shifts to the employer- defendant who must articulate a legal reason for not hiring the plaintiff. To win, the plaintiff must then show that the employers reason is a pretext (not the true reason) and that discriminatory intent actually motivated the employers decision
• How can an employer mitigate the risk of liability for harassment based on the Faragher defense analysis?
o Implement written anti-sexual harassment policies which include accessible grievance procedures o Immediately and thoroughly investigate complaints o Implement reasonable remedial action o Carefully screen, train and monitor supervisors
• Can an established business relationship be the subject of tortious interference?
o In Texas, as long as there's an established business relationship, if a third party tries to severe the relationship, there is potential liability for tortious interference
• Might an agent be liable for breaching its duty to a principal for preparing to compete with the principal if no competition occurs until after termination of the agency relationship? (Highlighted)
o In the absence of an enforceable restrictive covenant and/or the misappropriation of trade secrets, an employee is not bound by any duty to refrain from competing with his former employer after the termination of the employment relationship. o Even before the termination of the agency, he is entitled to make arrangements to compete, except that he cannot properly use confidential information peculiar to his employer's business and acquired therein. Thus, before the end of employment, he can properly purchase a rival business and upon termination of employment, immediately compete. He is not, however, entitled to solicit customers to such rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer's business.
• Under the TUTSA, what are proper means of obtaining a trade secret?
o Independent development and o Reverse Engineering unless prohibited ex. By contact or licensing agreement
• As a practical matter, what is a trade secret? Understand generally what you're talking about when you use the term "trade secret." Later questions address the legal definition.
o Information of commercial value, such as customer lists, plans, reach and development, maybe also pricing information, marketing methods, production techniques, and generally anything that makes an individual company unique an that would have value to a competitor o Protection of trade secrets extends both to ideas and their expression o Because of this^ and No registration or filing requirements for trade secrets, trade secret protection may be well suited for software
• Under the Texas Uniform Trade Secrets Act ("TUTSA"), what constitutes a trade secret? In other words, what must a plaintiff prove to establish that information is a trade secret?
o Information, including but not limited to, "a formula, pattern, compilation, program, device, method, technique, process, financial data, or list of actual or potential customer or supplier" that meets the following criteria: • Derives independent economic benefit, actual or potential • 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
• In a particular situation, if a conflict of interest can be cured or waived, does that necessarily mean it should be? Why or why not? In other words, consider the ethical issues regarding asking a principal to waive a conflict of interest. (Highlighted)
o It shouldn't be waived if you cant maintain acting in the best interest of the employer
• From the employer's perspective, what are the advantages of hiring an independent contractor rather than an employee?
o Less likely to have vicarious liability o Doesn't have to provide so many benefits
• What is required by a partner's duty of care.
o Limited to refraining from "grossly negligent or reckless conduct, intentional misconduct or a knowing violation of the law". A partner is not liable to the partnership for simple negligence or honest errors in judgment in conducting partnership business
• What is required for protection from retaliation for whistleblowing under the Sarbanes Oxley Act?
o Mandates corporate governance standards of publicly trade companies in addition to whistleblower protection provision o Applies to publicly traded companies, mutual finds, and "any officer, employee contractor of agent of such company" o Prohibits them from retaliating against employees who "provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation, any rule or regulation of the Securities Exchange Commission, or any provision of federal law relating to fraud against shareholders o The whistle blower is protected if he reports the alleged violation to either the appropriate law enforcement official or his supervisor, or any other employee who has authority to investigate, discover or terminate alleged conduct
• Under the TUTSA, when is one liable for misappropriation of trade secrets for merely acquiring a trade secret?
o Misappropriation requires acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means
• Under the TUTSA, when is one liable for misappropriation of trade secrets based on the use or disclosure of a trade secret?
o Misappropriation requires disclosure or use of a trade secret of another without express or implied consent by a person who: • Derived from or through a person who had utilized improper means to acquire it • Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use • Derives from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use o Before a material change of the person's position, know or had reason to know that is was a trade secret and that knowledge of it had been acquired by accident or mistake
• To what damages is a plaintiff who successfully proves the breach of a covenant not to compete entitled?
o Monetary damages and injunctive relief o Employer may be asked to revise restrictions in which the employer is only entitled to injunctive compensation
• What is the Equal Employment Opportunity Commission?
o Monitors compliance with title 7
• What affirmative defense is available to the defendant in a tortious interference suit?
o No liability of it can be shown that the interference was justified or permissible, o Bona fide competitive behaviors- through aggressive marketing and advertising strategies for instance- is permissible interference even if it results in the breaking of a contract
• Does designating a worker as an independent contractor in a contract of employment definitively establish his status as such? (Highlighted)
o No the IRS (international Revenue Service) can change their status to an employee
• What are the four components of the agent's duty of loyalty? Be sure you understand what each prohibits.
o Outside benefits or secret benefits- an agent is not entitles to receive befits from outside the agency relationship unless the principal knows about and agrees to the agents receipt of the benefits o Representation of more than one principal- An agent may not act on behalf of two or more principals whose interests conflict o Confidential information- an agent can neither disclose nor use for his own benefit confidential information obtained during the course of agency. This duty services termination of agency relationship. An agent who discloses or uses such information after the agency relationship has ended may still be liable for breach of duty of loyalty o Competition with the principal- an agent may not compete with the principal in any matter within the score of the agency business during the course of the agency relationship
• Contrast a trade secret to other forms of intellectual property e.g., patents.
o Patents: A grant from the government that gives an inventor exclusive rights to an invention o Copyright: The right of an author or originator of a literary or artistic work, or other production that falls within a specified category, to have exclusive use of that work for a given period of time o Trademark (service mark and trade dress): Any distinctive word, name, symbol, or device (image or appearance) or combination thereof, which an entity uses to distinguish its good or services from those of others. The owner has exclusive rights to use that mark or trade dress
• What common law duties does the agent owe to the principal? Be sure you understand what each requires.
o Performance- agreement to use reasonable diligence and skill in performing the work, failure may be a breach of contract. • Standard of care- the degree of skill or care required of an agent is usually that expected of a reasonable person under similar circumstance • Gratuitous agents- an agent acting without payment cannot be liable for a breach of contract because there is no contract. Subject to tort liability- once a gratuitous agent has begun to act in an agency capacity, he or she has the duty to continue to perform in that capacity. Subject to same duty of care o Notification (duty of notification, duty to inform) • An agent is required to notify the principal of all matters that come to her or his attention concerning the subject matter of the agency. The law assumes that the principal is aware of any information acquired by the agent that is relevant to the agency regardless of passing info to the principal. Notice to the agent is notice to the principal. o Loyalty- Fundamental in fiduciary relationship- agent has duty to act solely for the benefit of his principal and not in the interest of the agent or third party. Cannot represent two principals in same transaction unless both know of the dual capacity and consent • Maintain confidentiality • Actions must benefit the principal o Obedience- when acting on the behalf of the principal, an agent has a duty to follow all lawful and clearly stated instructions of the principal. Deviations= violation of duty unless in emergency situations when instructions aren't clearly but must act in good faith and reasonable manner under the circumstances o Accounting- unless agreed upon, agent must make available to the principal an account of all property and funds received and paid out on the principal's behalf- includes gifts from 3rd parties in connection with agency. Must maintain separate account and not intermingle with personal account
• Consider the distinction between competition and preparation to compete. (Highlighted)
o Preparation is the act or process of getting ready, by collecting facts and materials, research, to compete with the principal during employment o Preparation to compete is not prohibited however competition is prohibited under and agents duty of loyalty to the principal
• What does the Age Discrimination in Employment Act ("ADEA") prohibit? Hint: "discrimination based on age" is incomplete, too; you need to be slightly more specific.
o Prohibits employment discrimination on the basis of age against individuals forty years of age or older and mandatory retirement for non-managerial workers. Also encompasses claims of retaliation for complaining about age discrimination, thus protecting federal and private- sector employees from retaliation based on age-related complaints
• What does the Americans with Disabilities Act ("ADA") prohibit? Hint: "discrimination based on disability" is an incomplete answer. You need to be more specific as per our class discussion.
o Prohibits making a decision based on disability, he is otherwise qualified to perform essential function with or without reasonable accommodation
• What are the two types of harassment?
o Quid Pro Quo: "this for that"- it is the most blatant form of sexual harassment and is generally easy to recognize. It involves an exchange of sexual favors to gain tangible job benefit or to avoid a tangible job detriment o Hostile Environment: since hostile environment type sexual harassment des not necessarily involve a tangible job benefit/ detriment, it may be more difficult to prove
• Give five examples of means of maintaining the secrecy of information.
o Recognize there is an insider and outsider threat to your company o Identify and value trade secrets o Implement a proactive plan for safeguarding trade secrets o Secure physical and electronic versions of your trade secret o Confine intellectual knowledge on a "need to know" basis o Provide training to employees about your company's intellectual property plan and security
• List examples of public policy exceptions to an employer's right to terminate an employee at will. (Highlighted)
o Refusing to perform an illegal act o Reporting illegal activity o Exercising legal rights o Performing public duties
• What specific obligations are included in a partner's duty of loyalty?
o Requires a partner to account to the partnership for "any property, profit, or benefit" derived by the partner in the conduct of the partnership's business or from the use of its property. A partner must also refrain from competing with the partnership in business or dealing with the firm as an adverse party
• How does an employer determine whether a worker is an employee or an independent contractor? (Highlighted) Understand the overall aim of the Right to Control Test and know, understand and be able to apply the factors in the test.
o Right to control test (D-D-D-T-L-P-S) • How much control does the employer exercise over the details of the work- more control= employee • Is the worker engaged in an occupation or business distinct from that of the employer- yes= independent contractor • Is the work usually done under the employers direction or by a specialist without supervision- under employee's direction= employee • Does the employer supply the tools at the place of work- Yes= employee • For how long is the person employed- long= employee • What is the method of payment- by time period or at the completion of the job- Time period= employee • What degree of skill is required of the worker- degree of skill for specialized skill= independent contractor
• What factors indicate the existence of a partnership?
o Sharing profits or losses o A joint partnership of the business o An equal right to be involved in the management of business o Expression of intention o An agreement to contribute or actual to capital
• What is the source of law that governs partnerships?
o Statutory- uniform partnership act, Texas business organization code • Inter se • 3rd party rules o Contract law- if there's a contract or partnership agreement it governs the rights and responsibly of partners or partnerships o Common law (of agency)- each is an agent of partners or the partnership and have fiduciary obligations
• What is whistleblowing and what is the risk to the whistleblower?
o Telling government authorities, upper level managers or the media that her or his employer is engaged in some unsafe or illegal activity o Risk: getting fired or retaliation
• What types of provisions are typically found in a partnership agreement?
o Terms of existence- specific period of time o Division of profits and losses o Compensation of partner who is employed o Provision for withdrawing or contributing capital o Redemption for wanting to withdraw o Means of dispute resolution
• What is required for protection from retaliation for whistleblowing under the Federal Whistleblower Protection Act?
o The Federal Whistleblower Protection Act of 1989 protects federal employee who report alleged illegal activity to an appropriate law enforcement official from retaliatory action
• Understand and be able to apply the analysis for establishing disparate impact. Understand the specific requirements as well as the purpose of each step in the analysis.
o The complaining party must first show statistically that the employer's practices, procedures, or tests are discriminatory in effect. Once he makes out his prima facie case, the burden of proof shifts to the employer to show that the practices or procedures in question were justified o Two ways of proving disparate impact discrimination exists: • Pool of applicants- comparing the employers workforce to the pool of qualified individuals available in the local labor market • 1) As a result of educational or other job requirements or hiring procedures • 2) % Of non whites, women or members of a protected class • 3) Does not reflect % of that group in the pool of qualified applicants o If plaintiff can show connection between practice and the disparity than there is the prima facie case and doesn't need evidence of discriminatory intent • Rate of hiring- comparing the selection rate of whites and nonwhites (or over another protected class) regardless of racial balance in the employers workforce
• Explain thoroughly the Faragher defense to harassment.
o The first question in determining an employer's liability for harassment is whether the plaintiff suffered tangible job detriment. If yes, then the employer is strictly liable, subsequent remedial action is not a defense by may impact damages. If no, then the employer has a defense- if the harassing employee was a supervisor, the employer may offer evidence that • 1) The employer took reasonable steps to prevent and correct the situation • AND 2) the employee unreasonably failed to take advantage of the corrective or preventative opportunity. o If the harassing employee was a co-worker, the employer may be liable if he knew or show have known about the harassing behavior and failed to take remedial action
• Explain Texas' public policy exception to an employer's right to terminate an employee at will. (Highlighted)
o The only public policy exception to the at-will employment doctrine provides that an employer may not legally terminate an employee for refusal to perform an illegal act that carries criminal penalties
• What does the prohibition on gender discrimination ban?
o The prohibition on discrimination based on sex includes that based on pregnancy, childbirth and related medial conditions, and sexual harassment. Title VII does not prohibit discrimination based on sexual orientation, but some state anti-discrimination statutes do
• Under the TUTSA, what are improper means of obtaining a trade secret?
o Theft o Bribery o Misrepresentation o Breach or inducement of a breach of a duty to maintain secrecy or o Espionage through electronic or other means
• How does the Lily Ledbetter Fair Pay Act amend Title VII?
o This act makes it so if a decision is made 1/1/15, but goes into effect 1/1/16- retiring 1/1/20, its 180 days from that point of retiring and that damages go back two years o The new act states that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action
• What restrictions on the employee must be included in the covenant not to compete for it to be enforceable?
o Time- one year is reasonable per se, leaving out time means forever which is not reasonable o Geography- where did the employee perform services is usually reasonably, leaving out means all over the world and no reasonable o Scope of activity- what the employee did for the employer- same industry is unreasonable
• On what protected bases does Title VII prohibit harassment?
o Title VII of the Civil Rights Act of 1964 prohibits harassment based on all of the prohibited bases of discrimination- sex, color, race, religion, and national origin
• Define partnership.
o Two or more persons operating as an unincorporated business for the purpose of making a profit o Persons may be individuals or entities
• What is a joint venture?
o Two or more persons or business entities combine their efforts or their property for a single business transaction
• Define wrongful discharge.
o Whenever an employer discharges an employee in violation of an employment contract or a statutory law protecting employees, an employee may bring an action for wrongful discharge
• Describe the bounty program provided by the Dodd Frank.
o Whistleblowers who provide original information to the SEC or the Commodity Future trading Commission may recover between 10% and 30% of the monetary sanction in excess of $1,000,000 collect by the agency
• Does an employer have an absolute duty to accommodate an employee's religious practices?
o Yes- Title VII imposes a duty on employers to reasonably accommodate an employees or applicants religious practices
