LAW exam 3

Explain the process for forming a certified labor union.

1. Authorization Cards: a group of employees, with a mutuality of interest, organizes an effort to have other workers sign authorization cards; 30 percent of the collective bargaining unit must sign in order to proceed to the next step. 2. Filing with NLRB: authorization cards are filed with the NLRB, and a formal union certification process begins when the NLRB sets a date for an election. 3. Campaign: Union organizers campaign according to fair labor practices. Management is also permitted to engage in certain practices to campaign against unionization. 4. Election: Entire bargaining unit votes to either elect or reject unionization. A simple majority is to certify the union. 5. Certification or rejection: If a simple majority voted for unionization, the union is certified. The employer must recognize the union as the exclusive bargaining representative of the workers and is required to bargain in good faith with the union. If a simple majority voted against unionization, the union is rejected.

Differentiate between an economic strike and an unfair labor practices strike.

1. Economic strikes arise in the context of union members' failing to agree with the employer on wages or benefits. Permanently replaced. 2. Unfair labor practices strikers are entitled to immediate reinstatement with back pay once they unconditionally offer to return to work. An unfair labor practices strike doesn't lose its character as such if economic motives contribute to its cause.

List the two primary methods used to terminate agency relationships and give examples of each method

1. Express act is the termination of an agency relationship through termination or expiration. 2. Operation of law is the termination of agency relationships through destruction of subject matter, death, bankruptcy, or mental capacity

Recognize the dangers of the principal failing to notify third parties of an agent's termination.

1. Failing to properly notify appropriate parties may result in continued liability of the principal for acts of the agent despite the termination. Generally, an agency relationship is terminated either through express acts or through operation of law. 2. Express acts are acts which an agency relationship is terminated; can be either simple communication of the desire to terminate the relationship, the expiration of a fixed term, or satisfaction of purpose. 3. Operation of law is a method whereby an agency relationship is terminated as provided for in a statute or through certain common law doctrines covering the destruction of essential subject matter, death, bankruptcy, or lack of requisite mental capacity.

Define the duties that collectively comprise a fiduciary obligation owed by the agent to the principal.

1. Loyalty is the centerpiece of fiduciary obligation. The law requires that the agent hold the principal's objectives paramount. Unless the principal has knowingly agreed to the contrary or extraordinary circumstances exist, the agent is obliged to advance the principal's interest over her own interest. 2. Obedience is when an agent has the duty to obey lawful instructions from the principal and can't substitute her own judgement for the judgement of the principal. 3. Care is when an agent has the duty to act with due care when conducting business on behalf of the principal. This requires the agent to act in the same careful manner when conducting the principal's affairs as a reasonable person would in conducting her own personal affairs. 4. Agents have an ongoing duty to keep the principal informed and DISCLOSE any and all relevant facts to the principal. 5. The duty to ACCOUNT includes keeping records on data such as reimbursable expenses, checks or cash received on behalf of the principal, and any liabilities incurred in the course of the agent's conduct. The duty to account includes a prohibition against intermingling the principals funds with the agents own funds.

Apply the doctrine of respondeat superior and identify its impact and limits.

1. Respondeat Superior is a common law doctrine under which a principal (employer) is liable for the tortious action of the servant of agent (employee) when that act resulted in physical harm or injury and occurred within the agent's scope of employment. Form of vicarious liability. 2. Limited by a requirement that in order for a principal (employer) to be liable for the employee's tort, the act must have occurred within the employee's scope of employment. For the principal to be liable, the agent's tortious conduct must have been related to her duties as an employee of the principal, occurred substantially within the reasonable time and space limits, and been motivated, in part, by a purpose to serve the principal. 3. If an employee's misconduct causes physical harm to a third party's person or property, the employer is liable for both the injury and any related economic losses. However, if the employee's misconduct results in harm only to emotional state, reputation, or an economic loss, respondeat superior doesn't apply. 4. Another exception to the respondeat superior doctrine occurs when an agent, during a normal workday, does something purely for her own reasons that are unrelated to employment. During this time, the employee's conduct is thought of as being outside the zone that is governed by respondeat superior. The law recognizes this activity, called a frolic, as a protection for the principal against any harm suffered as a result of an agent's negligence while on the frolic. If the conduct is a small scale deviation that is normally expected in the workday, it is considered a detour. 5. Another case that arises in the context of liability under respondeat superior is when an employee causes an injury while traveling to or from the workplace. Courts have adopted the going and coming rule whereby employers are not liable for tortious acts committee by employees on their way to and from work.

List and describe the protections afforded under the major federal antidiscrimination statutes and identify the protected classes and theories of discrimination under Title VII.

1. Title VII: Covers comprehensive set of job-related transactions and prohibits discrimination in the workplace on the basis of an employee's race, color, national origin, gender, religion, or pregnancy. The law applies to any private sector employer with 15 or more full-time employees and to unions, employment agencies, state and local governments, and most of the federal government. 2. Age Discrimination in Employment Act: A federal statute that prohibits employers from discriminating against employees on the basis of their age once employees have reached the age of 40. 3. Americans with Disabilities Act: Requires that employers with 15 or more employees make reasonable accommodations for a disabled employee in the workplace as long as the accommodations don't cause the employer to suffer an undue hardship. 4. Equal Pay Act of 1963: makes it illegal for employers to pay unequal wages to men and women who perform equal work.

Apply the two standards used in a sexual harassment claim and articulate ways to reduce liability for harassment.

1. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are considered violations of Title VII if the conduct (1) occurs in the context of explicit or implicit conditions of an individual's employment or as a basis for any employment decisions of (2) unreasonably interferes with an individual's work performance or creates an offensive work environment. 2. Remedies include an injunction, reinstatement, compensatory damages in the form of back pay, retroactive promotions, and requirements that the employer take certain actions in order to remedy patterns or practices resulting in discrimination.

Describe the main statutory protections for workers and regulations on employers in the areas of wages and hours, retirement, health care, sudden job loss, work-related injuries, and workplace safety.

1. Wages and Hours: The FLSA provisions mandate payment of a minimum wage, a max 40-hour workweek, overtime pay, and restrictions on children working in certain occupations and during certain hours. 2. Retirement: Employers are not required to establish retirement plans for their employees, although as a competitive matter many often do. If an employer offers retirement benefits, they are typically in the form of a pension or through a tax-deferred retirement savings account. 3. Health Care: The Patient Protection and Affordable Care Act relies on a combination of employer plans and government managed health care exchanges. While the public policy goal is that businesses will provide their employees with health care coverage, a business may choose not to provide coverage and instead pay a penalty fee to the US government. If the employer does provide a health care plan, two federal statutes regulate certain aspects of administering the plan. First, HIPPA sets administrative rules and standards designed to protect employee medical information and records form disclosure to a third party. Second, COBRA mandates that employers provide continuous coverage to any employee who has been terminated even if for a cause. 4. Sudden Job Loss: The Federal Unemployment Tax Act (FUTA) provides limited payments to workers who had been temporarily or permanently terminated from employment through no fault of their own. FUTA established a state-administered fund to provide payments to workers who have suffered sudden job loss. Only the employer pays FUTA taxes. 5. Work Related Injuries: Workers compensation statutes establish a structure for an injured employee to be compensated through a statutorily mandated insurance program as the exclusive remedy for workplace injuries or illnesses. Employees with job-related injuries or illnesses are paid based on a percentage of the employee's salary at the time of the occurrence. Compensation is funded through employer-paid insurance policies. The employee is paid regardless of any issues related to fault or negligence of the employee, the employer, or any third party. This plan ensures an injured worker a continuous income for an injury that requires them to stop working. 6. Workplace Safety: Occupational Safety and Health Act (OSHA) statutes and regulation is to make the workplace as safe as possible for workers engaged in business operations through setting national safety standards, mandating information

Number of employees required for laws to apply as well as the applicable employer defenses

15

ADEA: Age Discrimination in Employment Act:

A federal statute that prohibits employers from discriminating against employees on the basis of their age once employees have reached the age of 40.

Recognize, define, and give examples of an agency relationship.

An agency is a legal relationship in which the parties agree, in some form, that one party will act as an agent for another party, called the principal, subject to the control of the principal. The first step in creating an agency relationship is for the principal to manifest some offer to form an agency. Consent occurs when an agent agrees to act for the principal.

Classify agents as either employees or independent contractors by applying the direction and control tests.

Courts apply the substance-over-form analysis to determine the classification of an agent. Fundamentally, the agent is classified based on the amount of direction and control that the principal has over the agent in terms of setting the agent's work schedule and pay rate and determining the level of day-to-day supervision required. In an employer-employee relationship, the employer principal sets work hours, decides what salary to pay, and exercises control over the employee agent's working conditions and responsibilities. Independent contractors work based on a deadline but typically choose their own schedule.

Articulate the duties owed by a principal to the agent and to third parties.

Duties owed by a principal to the agent includes payments made or expenses incurred within the agent's actual authority, and payments made by the agent for the principal's benefit but done without authority, so long as the agent acted under a mistaken good faith belief that he had the authority to act. Duties owed to a third party include claims made by third parties on contract entered into by an authorized agent and on the principal's behalf. And claims made by third parties for torts allegedly committed by the agent if the agent's conduct was within the agent's actual authority or the agent was unaware that the conduct was tortious.

COBRA: Consolidated Omnibus Budget Reconciliation Act.

Employers provide continuous coverage to any employee who has been terminated even if the worker was terminated for cause. Requires that the employer provide the exact health coverage for up to 18 months.

Substantially younger

If a plaintiff is attempting to prove age discrimination based upon the fact that younger employees are treated more favorable, then the plaintiff must prove that the younger employees are substantially younger.

Equal pay act:

Makes it illegal for employers to pay unequal wages to men and women who perform the same work.

ERISA: Employee Retirement Income Security Act

Provides pensions and retirement funds. Coverage subjects employers that establish retirement benefits to the requirements of ERISA laws and regulations, which primarily require employers to make certain disclosures related to investment risk and provide transparency to plan beneficiaries.

SSA: Social Security Act

Provides retirement income. Coverage provides a broad set of benefits for workers, including a retirement income from the federal government; funded by mandatory employment taxes paid into a trust fund by both employer and employee and administered by the federal government.

FUTA: Federal Unemployment Tax Act

Provides temporary and permanent unemployment. Coverage provides limited payments to workers who have been temporarily or permanently terminated from employment through no fault of their own; funded by the employer only.

OSHA: Occupational Safety and Health Act

Provides workplace safety. Coverage sets workplace rules and regulations, administered and enforced by the OSHA to promote the safety of workers and prevent workplace injuries.

ADA: Americans with Disabilities Act

Requires that employers with 15 or more employees make reasonable accommodations for a disabled employee in the workplace as long as the accommodations don't cause the employer to suffer an undue hardship.

Describe the cooling off period for national emergencies under the LMRA

The NLRA allows a federal court to enforce a strike prohibition for a period of 80 days if a strike threatens national public health or security. During this cooling-off period, the government facilitates negotiations between the parties, and any strike during this time is illegal

Identify federal statutes that impact labor-management relations and give examples of specific protections for workers that are set out in each law.

The National Labor Relations Act is the centerpiece of labor-management regulation statutes. It provides general protections for the rights of workers to organize, engage in collective bargaining, and use economic weapons in the collective bargaining process. 1. Collective bargaining is the process of negotiating an agreement on behalf of an entire workforce, as opposed to individuals negotiating privately on their own behalf. The statute also contained an enabling provision that formed the National Labor Relations Board to administer, implement, and enforce the law's wide-sweeping provisions.

Describe the functions of the NLRB,

The National Labor Relations Board is an independent federal agency created by the NLRA and charged with administering, implementing, and enforcing NLRA provisions, as well as monitoring union elections for fraud and setting guidelines for employers and unions in regard to fair labor practices.

Explain the process for creating an agency relationship and the impact of that relationship on the liability of the principal.

The first step in creating an agency relationship is for the principal to manifest some offer to form an agency. Manifest is when courts apply an objective standard to determine whether the principal intended that an agency be created. The next step is when consent occurs when an agent agrees to act for the principal. In addition to giving consent, the parties must have an understanding that the principal is in control of the agency relationship. The law doesn't require any formal expression of an agency relationship between parties. EX. In the Bosse v. Brinker case, the court held that an agency relationship requires three elements: 1. Consent, 2. Right of control, 3. Agent's conduct that benefits the principal in some way.

List the sources of an agent's authority to bind the principal in contract and give examples of each source.

The power to bind the principal in a certain transaction is derived from the agent's authority. The primary sources of an agent's power are: 1. Actual authority- occurs either when the parties expressly agree to create an agency relationship or when the authority is implied based on custom or the course of past dealings EX. The president of a corporation is thought of as having implies powers to bind the corporation to virtually all contracts that she determines are in the best interest of the corporation. The president need not obtain express approval from the board of directors for day-to-day transactions. 2. Apparent authority-occurs when there is an appearance of legitimate authority to a third party rather than express authorization by the principal EX. Arises from actions of a principal that lead a third party to believe that an agent has the authority to act on the principal's behalf. 3. Ratification- a retroactive source of the agent's authority that occurs when the principal affirms a previously unauthorized act by either expressly ratifying the transaction or not repudiating the act. EX. An agent of A hires someone to do business without the principal's approval even though the principal may be pleased with the business.

What is a lockout

The shutdown of a business by the employer to prevent employees from working, thus depriving them of their employment and putting economic pressure on the unions members before the union can do the same to the employer through a strike.

Disparate impact

Theory of employment discrimination in which employee evaluation techniques that aren't themselves discriminatory have a different and adverse impact on members of a protected class.

Mixed motives

Theory of employment discrimination in which the cause of the adverse employment action was motivated by both legitimate and discriminatory motives.

FMLA: Family and Medical Leave Act

provides medical leaves. Coverage requires that an employee returning from a medical leave, whether taken to care for himself or an immediate family member, be reinstated at the same rate of pay.

FLSA: Fair Labor Standards

provides minimum wages and a maximum of 40 hour work weeks as well as child labor restrictions limiting children under 14 from working. Coverage includes mandates 1. Payment of minimum wage, 2. Max 40-hour workweek, 3. Overtime pay rate, and 4. Restriction on children working in certain occupations and during certain hours.