TIM 301 Final

**What are the potential liabilities of hotel spas?

* Licensing • A license evidences authorization from the state for the license holder to offer specified services • In most states the spa must be licensed • Additionally, many of the services offered by a spa require that the service-provider be licensed (e.g. manicurists, facialists, masseuses, and cosmetologists (hair, nail, and skin)) • Providing services without the license is illegal and penalties include fines and negative publicity • For a person who administers the service without necessary certification, an additional consequence might be jail time • Spa management should verify licenses * Sanitation and Nails • If sanitation surrounding manicures and pedicures is not given a high priority, customers can contract a fungus • Can lead to lawsuits * Wet and Slippery Floors • To avoid foot fungus, the spa should provide disposable spa slippers, flip-flops, or shower shoes so that customers are not in bare feet • Absent some form of footwear worn by patrons, the chance they will spread or contract fungus increases significantly • Another issue mandating care is that wet floors are slippery and cause patrons to trip and fall * Effect of Liability Waivers • To reduce liability, spas often require their customers to sign a waiver of liability which is a document stating that customers agree to waive their right to sue the spa/hotel if they are injured while at the facility • The law does not like releases from liability for wrongdoing • However, if the parties agree to such terms, and the terms are clear and unambiguous, many (but not all) courts will enforce them • Further, to be enforceable, the activity that caused the injury must be recognizable by the injured party as a potentially dangerous venture. • Fitness patron cannot be charged with realistically appreciating the risk of injury from simply reclining on a sauna bench • A waiver of liability may prevent an injured patron from successfully suing the facility provided the wording of the release is clear and the type of injury suffered is foreseeable * Property Stolen from Lockers • Spa customarily provides locker and lock for the visitor's use • Club is not a bailee if it is left in the locker and club does not know about it * Massages • This environment can lead to incidents of sexual abuse or rape • To avoid this type of liability, management should perform criminal background checks on all its workers and verify credentials including necessary licenses • Ongoing supervision likewise is critical * Tanning Booths • Tanning booths should be inspected regularly to ensure proper operation • Apparatus that malfunctions due even in part to the fault of the spa can result in injuries and liabilities • Employees must be carefully selected and thoroughly investigated prior to hiring, and thereafter monitored closely (e.g. peeping Toms)

What are the protected classes? How do the defenses apply to them?

*Race • No discrimination (Asians vs. non-asians, black vs. white). • Not tolerated • Defend claim of discriminatory firing by establishing a legitimate, nondiscriminatory reason for the termination • A way a plaintiff can show the employer's claimed explanation for a termination was not the reason is by showing that other employees who committed similar violations were retained * National Origin • National origin: the country where people were born or from which their ancestors came • Accent: if cannot satisfy job description of speaking good English, I may not hire you • Employer tolerance of ethnic slurs or jokes by employees or supervisor may constitute a hostile work environment based on national origin • Also abusive language, demeaning job assignment, and threats and intimidation based on their ethnicity • Refusal to hire someone whose English is faltering may constitute illegal discrimination on the basis of national origin. • However, if the ability to speak English is a business necessity for the job, an employer who refuses to hire an applicant not well-versed in English is not discriminating illegally (e.g. waiter or concierge) • An employer can refuse to hire a job applicant based on accent if it materially interferes with job performance *Religion • Bar mitzvah, catholic services. • Must make reasonable accommodation unless its going to cause undue hardship (you're the only guy in that job, you don have to do anything but try to find a substitute) • Have to pray 3-4 times a day on your prayer mat • Yes Neiman Marcus has to accommodate it, but not necessarily in the middle of the store - rule of reason • If the employer can demonstrate that such an accommodation would cause undue hardship to the business, it can refuse to grant the days off • Show it made a good-faith attempt or that to do so would cause undue hardship • Another reasonable accommodation an employer might provide is means of communication among employees to facilitate their finding substitutes, such as a bulletin board in the employee break room • Not required to grant a preferred accommodation, but merely a reasonable one (e.g. cover tattoos/piercings with band aids) • Before an employer is required to make a reasonable accommodation of an employee's religious practices, the employee must establish that the religious foundation for the requested accommodation is bona fide * Gender • We need female strippers, not male strippers • Gender differentiated grooming standards for images • An employer cannot refuse to grant women or men a benefit of employment based on their gender (e.g. higher wages) • Hiring only one gender for a particular job generally constitutes discrimination • An employer cannot use the argument that a particular job is dangerous as a basis to hire only for men; she should decide for herself whether she chooses to incur the risks associated with certain jobs • To establish a case of discrimination for failing to hire or promote based on gender, plaintiffs must establish that they are qualified for position they seek • Employer is permitted to exercise legitimate concern for the business image created by the appearance of its employees • Minor differences in an employer's appearance rules for men and women that reflect customary modes of grooming for one sex but not the other do not violate Title VII

What are the three times when licensee is not liable for passengers injury?

1. If he got the driver drunk(er), the passenger cannot sue the driver if they get into an accident 2. If he purchased liquor for a minor who is driving, the licensee is not liable. 3. If the passenger knows the driver is intoxicated, he should not get in the car • If the passenger did not contribute to the driver's intoxication, the bar or restaurant may be liable for the passenger's injuries • Some states have determined that the act of riding with an inebriated driver is negligent. These states apply a comparative negligence apportionment of liability between the bar and the passenger.

Most states restrict sale of alcohol to which three individuals?

1. Minors 2. Visibly intoxicated 3. Habitual drunkard • In Hawai'i, if you know someone is intoxicated and going to get into a car, but you do not stop serving them

What's the most important document in the franchising?

The agreement

What is the normal blood alcohol content in Hawaii and most jurisdictions to deem you legally drunk?

• Blood alcohol content: you are illegally intoxicated if you reach the level of 0.08%

**What's the difference between a casino and hotel?

• Casino = hotel + gambling

How does ADA apply to employment?

• If you hire someone with a handicap, you have to provide them with reasonable accommodation. As long as it is "readily achievable" (doesn't cost too much money); you don't have to build them an elevator, but you can move aisles or enlarge bathroom • Provide them with reasonable accommodations means so that he is able to perform the essential functions of his job • Potential liability a defendant faces in a lawsuit is significant and includes: 1. Compensatory damages, including emotional pain and suffering, mental anguish, and loss of enjoyment of life 2. Punitive damages 3. Attorney's fees 4. Expert witness fees 5. Reinstatement where an employee was wrongly terminated 6. Back pay • Americans with Disabilities Act (ADA) is a commitment to equal opportunity for the disabled • Many employers declined to hire people with disabilities because of stereotypes and should not be the basis for employment decisions • Employer cannot refuse to hire and cannot otherwise discriminate against a disabled person who can, with reasonable accommodation if needed, perform the essential functions of a job. • Disability: a physical or mental impairment that substantially limits a person's ability to walk, see, hear, perform manual tasks, learn, work, or care for himself • The disability must be permanent or long term (e.g. not hurt hand) • Essential functions: core responsibilities of a job as distinguished form marginal or incidental assignments • Applies to employers with a minimum of 15 employees • In determining what functions are essential to a job, a court will consider the following: • The employer's judgment as to which functions are essential • Written job descriptions drafted before job was advertised or interviewing began • The amount of time on the job allocated to performing the function • e.g. Server: lifting, carrying, lowering heavy trays • Circumstances that may render a job function essential: • The reason the position exists is to perform that function • Only a limited number of employees are available who can perform the task • The function may be highly specialized and the reason for hiring a particular person is her expertise or ability to perform that duty • If an employee with a disability is able to perform the essential functions of the job but needs a reasonable accommodation to do so, the employer may be obligated to make the adjustment • What constitutes a reasonable accommodation depends on the facts of each case • ADA may require an employer to: • Restructure the job • Modify facilities to make them accessible (e.g. enlarging doorways) • Modify work schedules • Acquire equipment (e.g. magnifiers or stool) • Modify exams and training programs for the visually impaired or learning disabled • Employers are not required to provide personal use items such as hearing aids or eyeglasses • 70% cost less than $500 and 50% cost less than $50 • Some tax incentives are available for providing accommodations • Employer's duty applies to applicants for employment, and employees already on staff who are or become disabled and cannot perform their original jobs without some restructuring • Reasonable accommodation in these circumstances can include (in addition to the aforementioned) reassigning employees to a vacant job for which they are qualified. • If accommodations are unavailing and no alternate job is available, the employer is not required to continue the employment • The ADA does not require employers to create vacancies for disabled employees • If the accommodations required to enable the employee to perform the essential job functions are not reasonable, but rather impose an undue hardship on the business, the employer can legally refuse to extend employment to the disabled person • Undue hardship: accommodation that requires significant difficult or expense on the part of the employer, or major modification of the employer's business, taking into account such factors as the nature of the business, cost of the accommodation, and the business's resources (e.g. stop music at a nightclub for a hearing impaired server) • An employer is not required to give preference to a disabled person, but can instead hire the most qualified applicant • At a pre-employment interview, an employer cannot ask job applicants about the nature of a disability • The employer is permitted to inquire whether the applicant can perform the essential functions of the job and to demonstrate the ability. Follow-up: is there anything we could do to accommodate you so you could perform that task?

What are the liabilities of other attractions?

* Care of Animals - Negligence • Wild animals are unpredictable and need to be securely caged so they cannot contact parkgoers • Employees too are at risk • Did the park take appropriate precautions and did it adequately train the feeder? * Parades • Tricks can be dangerous and cause injuries, and the company can be liable * Skating Rinks • Skaters can collide, causing one or both to fall and suffer injuries • Operator of a rink should develop safety rules for skaters and post signs announcing the rules • Operator should provide monitoring to avoid rowdy or inappropriate behavior that might heighten risks * Other Amusements • Additional attractions that can result in liability if facility fails to exercise reasonable care in their maintenance and operation include rock climbing walls, bicycle paths, go-carts, tube slides, fireworks displays, bleachers for viewing events, and pedestrian walkways

What's the difference between the Warsaw Convention and the Montreal Convention?

*Warsaw Convention: • Until 2003 international flights were governed by the Warsaw Convention, an international treaty that sets limits of liability for lost, stolen, damaged, or misdelivered baggage • Limitation on liability for checked luggage on international flights was $9.07 per pound up to 44 pounds or about $400; the limit for carry-on baggage was $400. • In exchange for limited liability, the airline is responsible when luggage is missing or lost; the passenger does not need to prove that the airline was negligent • The airline can rebut this presumption if it can show it took all possible precautions to avoid the loss • Further, passengers have the option of purchasing insurance to cover loss in excess of the Convention's maximum • Under the Warsaw Convention, if the airlines failed to issue a baggage check (with weight) and luggage was lost or stolen, the airline was unable to benefit form the Convention's limitation of liability • Willful misconduct: E.g. airline's callous disregard for plaintiff's plight and willful renunciation of its contractual obligation its passengers was motivated by selfish economic interest *The Montreal Convention • Since 2003 • Changes: 1. Maximum recovery for damage to property in the approximate amount of $1,400 2. Calculation of the amount of damages awarded for property loss based on the law of the state or country where the action is commenced 3. Relaxation of the requirement that an airline issue a baggage check with prescribed contents 4. Elimination of the loss of limited liability if the airlines fails to comply with the documentation 5. Introduction of a requirement that airlines maintain adequate insurance to cover their potential liability 6. Authorization for a plaintiff to bring a lawsuit at the place of his residence

**What are the liabilities of a casino as compared to a hotel?

- Contracts and gambling debts - Compulsive/problem gamblers - Negligence - Strict liability (not subject to extremely strict liablility) - Criminal activity at casinos (including casino, and duty owed to intoxicated patrons who become crime victims) - False imprisonment - Trademark/copyright infringement

If the patron gets drunk and injures himself, what is your liability as licensee?

- In most states, dram shop acts do not impose liability for injuries to wrongfully served customers. In those states, the act imposes liability only for injuries to a third person Minority Rule: • A minority of states allow a wrongfully served patron to sue a licensee for resulting injuries, some based on particulars of the state's dram shop law and others based on negligence. • In states that allow the wrongfully served driver to sue, the bar can assert the defense of comparative negligence, thereby requiring the jury to allocate the relative liability for the accident between the tavern and the intoxicated patron and reducing the bar's liability accordingly • Regardless of whether a particular state holds the bar liable to the drinker, a licensee that makes an illegal sale of alcohol faces fines and license suspension

What is the three main purposes of zoning?

1) Balance development within the area (residents there, industrial there, commercial over there) 2) Preserve residential quality of the neighborhood 3) Minimize adverse effects - no strips joint or auto shop by your home

What are the defenses against job discrimination?

1) Bonafide Occupational Qualification • If you need a female model and a male model comes in, it's not discrimination 2) Business necessity • Necessary for you to speak English that everyone can understand 1. Bona fide occupational qualification (BFOQ) relieves an employer from liability for disparate treatment (intentional) discrimination where selection of an employee based on gender, religion, age, or national origin is reasonably necessary for the normal operation of the employer's business • To qualify, two elements are necessary: 1. The job in issue must require a worker for a particular gender, religion, age, or national origin 2. Such requirement must be necessary to the essence of the business' operation • E.g. Hiring only women to model women's bathing suits, must be younger than 60 to be a pilot • Defined narrowly • BFOQ is not a defense to a claim of racial discrimination 2. Business necessity may relieve an employer of liability for disparate impact (unintentional) discrimination • If a neutral selection criterion has a disparate impact on a protected class, but constitutes a business necessity, the requirement will not violate the Civil Rights Act of 1964 • Business necessity: the criterion has an obvious relationship to job performance • E.G. Speaking fluent English • Defined narrowly, thereby minimizing the number of potential employees who can be eliminated from consideration

How do you prove infringement?

1) Own mark: prove that you own the mark; ownership 2) Likelihood of confusion: if you use the big M and sell tacos, people will be confused • If you have an L&L in China, there is no likelihood of confusion because of the geographic proximity • Plaintiff must show two things: 1. Ownership of a distinctive mark or name 2. That defendant's use of a similar mark or name is likely to cause confusion as to the source of the products or services • Test for infringement is whether the second user's adoption of the name is confusingly similar to the original user - that is, will consumers be diverted by the name from doing business with the first user and do business with the second instead? • The more similar the names and products being offered by the two companies, the more likely a trademark infringement will exist • Even the script used to promote a name can add to the likelihood of confusion

If flight is overbooked, what are the procedures an airline must follow?

1) Volunteers: bump up to first class/business or they ask people to catch next flight and receive some sort of compensation 2) Airlines priority rules , which all airlines must develop and file with the DoT (e.g. first-come, first-served, reservation time) • Airline is liable if they fail to follow its priority rules • Anytime an airline is forced to deny passage to a traveler with a confirmed reservation, the airline should assist the customer in arranging alternate travel plans to limit its liability Rights of Would-be Passengers • An involuntarily bumped traveler may be entitled to damages for breach of contract and, in those cases where the carrier fails to assist the traveler in making alternate plans, to punitive damages. • Can sue for inconvenience, loss of time, anxiety, and frustration • Cannot sue for the tort of fraudulent representation because the practice of overbooking in airlines is public information, openly discussed by carriers.

What are the three ways you can sue if you have unadulterated food (spoiled food)?

1) Warranty of Merchantability (Contract) • "Merchantible": goods are at least of average quality and fit for their ordinary purpose • "Merchantible food": fit for human consumption; depends on where you are • "Privity" of contract: If I buy it, then I am able to sue. If I buy dinner for my friend and she gets sick, she cannot sue. The person paying can sue though. Most jurisdictions gets rid of it. 2) Strict Liability (Tort) • Requirements 1) Defendant sold defective food 2) Plaintiff got sick 3) Defective food caused injury • Becomes the defendant's burden of proof • To bypass the privity requirement, most states have adopted a related cause of action called strict products liability that is based in tort law rather than contract; thus, privity is not required • Food is defective if it is adulterated, contains foreign or unexpected objects, or is otherwise not fit for human consumption • If a diner becomes ill from food, but the cause is inherent in the food, poses no threat to most people, and the restaurant took precautionary measures to protect diners from the illness, the food will not be considered defective 3) Negligence (Tort) • An additional basis for suing a restaurant that serves unhealthy food is negligence • An injured diner claims the restaurant was careless while preparing the food and that inattentiveness led to the meal being tainted

What are the two types of test for objects in food? Which one is normally used by most jurisdictions?

1. Foreign natural test (tell guest don't complain, clams come from clam shells! Chickens have bones!) • If the object is foreign (unrelated to the components or ingredients of the product), the warranty is breached 2. **Reasonable expectation test - more acceptable, most jurisdictions use (guest sues based on reasonable expectation test - you don't expect the object in your soup) • Examines whether an object found in food ought to have been anticipated by the consumer • Relies on widely shared standards that food products ought to meet • More circumstances are likely to constitute breach of the warranty because some objects may be natural but unexpected (e.g. bone in chicken pot pie) • Outcome is not always clear because reasonable people might disagree about what should be anticipated. • In judging the merchantability of food, courts recently have been favoring the reasonable expectation rule over a strict application of the foreign/natural test • Even the presence of natural substances can sometimes render food unfit

What are the seven per se violations of anti-trust?

1. Price-fixing agreements: competitors agree among themselves to sell goods at a certain price and not lower 2. Vertical price-fixing: a manufacturer establishes minimum prices at which lower-level dealers in a distribution system (e.g. retailers) can sell a product 3. Territorial division agreements: competitors assign to each other a territory and agree not to compete in the others' territories, thereby each obtaining a monopoly within a specified geographical area 4. Group boycott: two or more sellers refuse to do business with a particular person or company, intending thereby to eliminate competition or block entry to a market 5. Resale price-maintenance agreements: a manufacturer determines the price at which retailers must sell 6. Price discrimination: seller of goods charges different prices to different buyers for the same product (not applicable to services) 7. Exclusive dealing contracts: a seller (usually a wholesaler) forbids a buyer (usually a retailer) from purchasing the products of the seller's competitors

What are the two types of sexual harassment?

1. Quid pro quo: • I'm your supervisor, if you don't sleep with me, Im not gonna promote you/give you a raise. • Supervisor to subordinate • For quid pro quo sexual harassment, the harasser's employer is liable • The theory is respondeat superior - the employer is liable for the wrongful acts of an employee done in furtherance of the employee's job responsibilities (granting benefits) 2. Hostile environment: • You don't need physical touching or a proposition • Unwanted conduct • Making inappropriate jokes • Have sexual harassment policy posted publicly • Doesn't have to have a pattern, once is enough • If you are a supervisor and harass an employee, the employer is liable for your actions because supervisor represents management. • If a customer or co-worker the employer is only liable if he knew/should have known that it has happened/was happening • Employer is presumed liable, but an affirmative defense exists • Employer can escape liability if it satisfies three elements: 1. No adverse employment action as taken against the employee (e.g. not fired) 2. The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior 3. The plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm (e.g. did not report) • Sexual harassment: form of sexual discrimination and constitutes a violation of Title VII • Includes two types of illegal action: 1. Quid pro quo sexual harassment: Unwelcome sexual advances or requests for sexual favors in return for job benefits 2. Hostile work environment sexual harassment: Verbal or physical conduct of a sexual nature that creates an intimidating, hostile, or offensive work environment * Quid Pro Quo Sexual Harassment • Applies where an employee is forced to submit to unwelcome sexual advances as a condition for receiving a job benefit (e.g. hiring, a promotion, a raise, or continuation as an employee, granting leave of absence, training, good evaluations) * Hostile Environment Sexual Harassment • Addresses the circumstance where harassing conduct of a sexual nature permeates the workplace • The offending behavior could be taunting, lewd jokes, touching or brushing up against the victim, comments about a person's appearance or their sexual practices, sexually suggestive comments or noises, repeatedly asking an employee out on a date when the invitee has indicated a lack of interest, obscene gestures, giving personal gifts, and like conduct. • An employer who creates or condones a sexually hostile work environment risks liability for gender discrimination • To qualify as sexual harassment, the conduct must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment • Court looks to the totality of the circumstances including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance • Casual or isolated incidents of discriminatory conduct such as a few sexual comments or slurs will not constitute a hostile environment * Sexual Harassment by Co-Workers • An employer may be liable for sexual harassment when co-workers harass an employee • For an employer to be liable, the employer must be aware of the harassment, as where it is occurring openly and blatantly, or where the harassed employee reports it to a superior * Sexual Harassment By Customers • An employer who condones or tolerates a sexually hostile work environment created by customers may also be liable to the employee • Employer ultimately controls the conditions of the work environment and has a duty to protect employees from abuse • To avoid liability, the manager should have honored her request to be reassigned, insisted that the customers cease their abusive conduct, or require that they lave the restaurant * Outside Scope of Employment • If the sexual harassing conduct occurs outside work hours and away from the place of employment, the conduct is considered to be outside the scope of a supervisor's employment responsibilities and the employer will not be responsible

What are the five tests of intoxication?

1. Slurred speech 2. Bloodshot eyes 3. Change of personality 4. Flushed face 5. Lack of coordination

What are the requirements for food preparation and how about donated foods. How does liability and the Good Samaritan act apply?

Food Preparation • Some aspects of food serve present particular safety risks to employees. The restaurateur has a duty to exercise reasonable care to minimize these risks. • Kitchen areas are inherently dangerous; most of the equipment can cause serious injuries if misused. • Hazards associated with flaming foods, and also dropped food, which can result in slip-and-falls. • If you donate food, and you are grossly negligent (you knew it was spoiled and were negligent), you can be liable • Unless you were grossly negligent, the good Samaritan Act will protect you • Even if you have the protection of the Good Samaritan Act, why go through the possibility of being sued?

What is Hawaii - HRS 378-2?

Hawaii Fair Employment Act

** If there are two or more licensees, how do you apportion the liability to the two or more licensees?

The federal court judge goes to each establishment he went to and then he finds out if each establishment served person while he was drunk. Divide which one was more responsible for getting him drunk.

What do we have to look for in regards to theme parks and amusement rides?

Theme parks: • If you have a ride, make sure they forewarn you that if you're diabetic, claustrophobic or whatever, that you could get injured • If someone gets hit by firework, it's strict liability • Crowd control requires attention and reasonable care by the park • The facility is not required to tolerate customers who damage property, injure others or otherwise disrupt activities • The park can establish reasonable rules of conduct to ensure that visitors are not exposed to risk of injury by others *Amusement rides: • Theme parks should alert potential riders to anticipated risks (e.g. no smoking, eating drinking; no wearing loose articles; should not ride with heart or nervous disorders or if pregnant) Assumption of risk: • The rule of assumption of risk, sometimes called the "no duty" rule, will be applicable in some cases • The participant in an activity impliedly consents to commonly appreciated risks associated with that venture • A person injured from the usual and expected risks inherent to an activity is not entitled to compensation (e.g. dizziness vs. head injury from insufficient cushioning on a ride) Minimum height rules: • Park should anticipate some disagreements with customers on whether certain youngsters meet the requirement • If not properly managed, these disputes can escalate to verbal and physical fights, resulting in claims against the park of assault, battery, and false imprisonment Ride Safety: • Government regulations require that carnival rides be at all times in a safe condition and in conformance with operation and maintenance procedures provided by the manufacturer • All aspects of the ride's operation are implicated - set up, integrity of the structure inspection schedule, electrical mechanisms and hook-up, and more • Violations of these rules can result in serious injury and even death to riders • Some state laws provide that a violation of these regulations results in death constitutes manslaughter, a serious crime recklessly causing a person's death (could result in prison term) Ride Safety (Negligence): • Freakish accidents can happen if attention to safety is lax • Establish procedures requiring mechanics to ensure that all employees are clear from dangerous locations before testing rides, and provide appropriate training on the safe testing of rides • Proper assembly and adequate training of employees who set up the rides are critical • Component parts must be adequately affixed to the ride's structure • Otherwise they can come loose and cause injury Fences: • Fences can act as barriers for protection of passersby and others for demarcation of the area where riders can gather while waiting to board • Fences need to be properly installed and maintained, if not, liability can result

What is the Nutrition Labeling Act of 1999 and what does it require?

e.g. Lite, Fat free, Low calories, Low fat, Cholesterol free, No MSG, Fiber, Sugar, Sodium Application to Packaged Foods • Mandatory nutritional labels are required for all packaged goods and they must contain the info specified in the following: 1. Standardization of serving sizes, because info such as fat grams and calories are based on serving sizes. 2. Regulation and standardization of the use of words such as light, cholesterol-free, and low calorie 3. Mandatory labeling of fat content by weight, specifying both total fat and saturated fat 4. Mandatory labeling of fiber content by weight 5. Mandatory labeling of the content of the following as percentages of the United States Recommended Daily Allowance: total fat, saturated fat, cholesterol, sodium, carbohydrates, and fiber 6. Limitations on health claims. The statute specifies the permissible representation of the relationship between foods and disease avoidance. It permits only claims that the food "may" or "might" reduce the risk of disease and precludes statements that suggest a guaranteed reduction of risk. Application to Restaurants • Whenever a restaurant makes a claim about the nutritional content or the healthfulness of a food product, the restaurant is required to provide to patrons upon request the same info as is required to be on a label of a food package. • Information is not required to be included on the menu, it need only be available "upon request". • Restaurants can rely upon info from nutrient databases, cookbooks, and analyses, "or other reasonable bases that provide assurance that the food or meal meets the nutrient requirements for the claim."

What are the rights of traveler in regards to baggage claim (domestic vs. international). How do you get compensation? Where do you look if its domestic or international flight?

• A tariff provides that when travelers hand their baggage to an airline to have it transported to their destination, they are entering into a contract with the airline • Passengers are entitled to compensation only for a portion of their lost property; compensation for emotional stress is not permitted, nor are punitive damages. • Domestic flight: you have one day to claim damaged luggage. You cannot get punitive damages or emotional distress, only money for the baggage • If you cannot find your luggage, look at the tariff • Neither the Warsaw Convention nor the Montreal Convention applies to domestic flights • Limits of liability for lost luggage on domestic flights • As with international flights, airlines must offer passengers the option of purchasing insurance coverage above the tariff's maximum. • If you lose baggage internationally, you look at the conventions • You can choose which one, so go with Montreal 1. Warsaw: if there's no fault at the airlines, they'll compensate you up to $75,000 for injuries; gives you money per pound 2. Montreal - liberal: give you $140,000; gives you more money

What is public domain of a trademark or service mark & what does it mean?

• A valuable trademark may be lost if the word becomes used in common speech (e.g. Kleenex, Aspirin) • What began as a trademark ended as a frequently used word in normal parlance • Trademark goes into public domain when the public has come to consider the word as the generic name for the thing itself rather than as an indication of a specific manufacturer or that manufacturer's specific product

What are the four applications of the rule of reason in regards to anti-trust?

• Activities that may restrain competition and are judged according to the rule of reason: 1. Territorial restrictions: a manufacturer restricts the territory in which dealers can sell, thereby preventing other dealers from competing in a given territory 2. Monopoly: one firm controls the market for a particular product with the intent of excluding competitors 3. Tying arrangements: a seller conditions the sale of a product on the buyer's agreement to purchase an additional product produced or distributed by the seller 4. Mergers: two businesses are combined into one, resulting in a reduction of competition • Consider: • Are they a monopoly? • Do they dominate the market? • Do they have a financial interest in the profits of the other company • Reason for imposing the restriction • Mini-monopolies are not illegal: Hotel can prohibit from its premises business that compete with hotel services or stadiums can prohibit spectators from bringing in food • Loyalty provisions are okay

What is the Fair Labor Standards Act?

• Adopted in 1938, to eliminate the unfair methods of compensation and labor conditions injurious to healthy and efficiency of workers • Mandates minimum wages, one-and-one-half pay for overtime work, equal pay for equal work, and restrictions on child labor • Guarantees minimum wage (company of $500,000 or more) - $7.25 an hour • An employer can credit a percentage of the tips against the hourly minimum-wage requirement (59%), but this cannot exceed the tips actually received by the employee • Overtime: you're entitled for overtime if you work 40+ hours • Exempt: salaried pay (executive and administrative/professional employees) • Time Worked: what constitutes time worked for purposes of determining the number of hours for which an employee is entitled to hourly pay and for determining whether an employee has worked overtime • Coffee and snack breaks • Meetings to discuss daily operations problems • Rest periods of 20 minutes or less • Travel form job site to job site or to customers • Required training • Clearing a cash register or totaling receipts after regular work hours • Equal work = equal pay, in US yes. Same job description, male/female, black/white, same pay, same classification, same work • Equal Pay Act: Requires that men and women who do the same job, or jobs that require equal skill, effort, and responsibility be paid the same or according to the same pay schedule • Is the job the same? • Do they have a "common core" of tasks; or whether much of the work involved is very similar • Generalized responsibilities or similar titles are not sufficient

What are the restrictions on child labor?

• Age you can start working: 14 • Lot of jobs they cant do • Here to protect the children • During the school year, an employee who is 14 or 15 cannot work more than 18 hours a week, not more than 3 hours on a school day, and cannot begin work earlier than 7:00 a.m. or end later than 7:00 p.m. • During vacation, can work up to 8 hours a day, but cannot exceed 40 hours a week. The workday cannot begin earlier than 7:00 a.m. or end later than 9:00 p.m. • No federal law restricts the number of hours a 16- or 17-year-old can work • Some states have additional, stricter rules • Intended to protect young people's safety • A worker under the age of 18 cannot operate meat grinders, meat-slicing machines, meat- and bone-cutting saws, or power driven knives used for meat processing • Cannot operate dough mixers, batter mixers, bread slicing and wrapping machines, and cake-cutting band saws • Cannot deliver messages, food, or other goods between 10:00 p.m. and 5:00 a.m. • State statutes can also be stricter

What is the Age Discrimination in Employment Act?

• Age: 40 • If you are above 40 and if someone younger gets the job who is not as qualified, it can be presumed that it's age discrimination • In Hawaii you can sue at any age • Can require pilots to retire after 65 • Judges after the age of 70 have to retire in Hawaii • Federal judges can be judges til they die (92 years) • Age Discrimination in Employment Act (ADEA) bars an employer from discriminating against an employee on the basis of being 40 years of age or older • Make it unlawful for an employer to refuse to hire, discharge, or otherwise discriminate with respect to compensation or conditions of employment because of a person's age • Purpose: to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and worker find ways of meeting problems arising from the impact of age on employment • Attempts to balance the needs of seasoned workers with those of the business communities • Does not mandate that an employer hire a person over 40, but rather requires the employer to make decisions based on legitimate reasons other than age, such as qualifications • An employer can refuse to hire older workers if it can show that youth is a legitimate business necessity (hiring young males to model teen fashions)

What is agency law and how does it apply to travel agents?

• Agency law requires the agent disclose the client the identity of the principal so the client can investigate the reputation or credit of the principal • If the agent fails to disclose the identity of the principal or that the agent is acting for another party, the client can assume the agent is acting on his own behalf and is liable as a principal • Agency: a relationship in which one person acts for or represents another based on authority voluntarily given by that other person. Involves two parties: • Principal: the person who authorizes the agent to act on his behalf. Typically controls the method used by the agent to do the authorized tasks. • Agent: the person so authorized, the one who represents or acts for the principal consistent with the principal's directions • Travel agent sometimes is the legal representative (agent) of the traveler and sometimes is the legal representative (agent) of a travel service provider. • When an agent acts on behalf of a principal within the scope of the authority given by the principal, the principal is legally bound by (liable for) the agent's acts and the agent is not. • If agent arranges plane reservations, airline is required to provide it, not agent • If agent acts outside the bounds, the agent may be liable for fraud for misrepresenting his authority and is liable to the traveler for losses incurred • Must be within its scope for travel agent/airline to be liable

What constitutes illegal job discrimination?

• An employer cannot discriminate against workers on the basis of protected classes: race, skin color, religion, gender, pregnancy, national origin, disability, age (if employee is at least 40 years old), or union membership • Some states also protect sexual orientation • Prohibits discrimination not only in hiring and firing, but also in promotion, access to training, disciplining, work assignments, shift assignments, vacation time, and more - Title VII of the Civil Rights Act of 1964 and Americans with Disabilities Act • Outlaws: • Disparate treatment discrimination: intentional discrimination • Disparate impact discrimination: neutral practices that result, often unintentionally, in unequal treatment

What is the purpose of the Indian Regulatory Gaming Act and how does it apply?

• Balance interests of the state in regulating high state gambling with "sovereign authority" of the tribe • Federal government maintains some oversight of gaming conducted on reservations in the Indian Gaming Regulatory Act • Provides a comprehensive design for regulating gaming activities on Native American lands • One objective is to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments • IGRA divides gaming into three classifications, each subject to different degrees of tribal, state, and federal jurisdiction and regulation • Such a treaty is initiated by the tribe requesting the state in which the lands are located to negotiate for the purpose of entering into an agreement governing such gaming • Compacts: these treaties are written agreements between a state and an individual tribe, and they govern the operation of casino gaming on Native American lands • If tribes do not satisfy these prerequisites, the federal government is authorized to obtain search warrants and seize slot machines and related devices and paraphernalia from the casinos • Managers and operators are subject to federal prosecution • U.S. government can seek injunctive relief against the casino to prevent it from operating

How do you protect your trademark & servicemark?

• Best way to protect your trademark/servicemark is to register it with the US Patent & Trademark Office • Not necessary, but it's a good idea to make sure you're not copying another company • A company can obtain a trademark or service mark in its name or logo simply by using it in connection with its business • When two companies are using the same name, the test to determine who has the superior right to the name is who used it first

When can an airlines cancel a flight?

• Can cancel a flight if it affects the safety of the passengers (e.g. mechanical problems, poor weather) • If the flight is cancelled, they still need to get you there. • In normal contract situations cancellation would constitute a breach of the airline's contractual duty, and liability would result • There are conditions under which the airline is not bound to fly (e.g. mechanical problems, poor weather) • In such cases, cancellation of a flight will not result in liability • To avoid liability, the airline must assist passengers in locating alternate flights to reach their destination • Liability will result if the airline fails to adequately aid travelers in making substitute plans • Some airlines have a tariff stating where the airline deemed cancellation of a flight to be reasonably necessary for the safety of its passengers, it could cancel without liability • Sometimes an airline's efforts to aid a passenger whose flight has been canceled or delayed are frustrated by the negligence for another airline • Liability may fall on the second airline and not the one that canceled the original flight (original airline is working as an agent for the traveler, not the second airline) • Airlines are required to aid travelers whose flights with other airlines are canceled

What is the liability to a person who is injured on plane not due to negligence by airlines?

• Check the tariff, to see how much they will compensate you up to • Check the conventions • No emotional distress (even if you lose a family heirloom or pet) • Accidents that occur on board a plane and cause physical injury to a passenger are covered by the Warsaw and Montreal Conventions • Airline's liability for personal injury is limited by those Conventions • Maximum amount recoverable under the Warsaw Convention was $75,000 • Damage to wheelchair was on board, but wheelchair caused injury, Warsaw Convention is applicable • Montreal Convention increases liability of airlines for death or personal injury to passengers to approximately $140,000 per passenger • Liability up to that limit does not depend on negligence of the carrier • If the death or injury as due to the carrier's negligence, the liability is unlimited

What are the remedies for someone who is suing someone who has discriminated?

• Compensatory damages • Punitive damages • Attorney fees • Back pay • Remedies are substantial, until 1991 they were limited to: 1. An injunction, which is a court order precluding the employer from continuing the offending conduct 2. A court order requiring the employer to adopt a policy forbidding discrimination and mandating implementation of the policy 3. Attorney's fees, thereby relieving the plaintiff of this substantial expense 4. Back pay, if the plaintiff suffered a loss of income due to the discrimination • Back pay: difference between 1. The amount of money the plaintiff would have earned in the absence of discrimination, which might include increased salary that would have accompanied a promotion that he or she was denied or salary that was lost due to wrongful termination 2. The amount of money the plaintiff earned as the victim of discrimination • Can include the pay earned in alternate employment or if the plaintiff did not seek another job, what he could reasonably have earned had he looked for employment • Civil Rights Act of 1991 expanded categories of plaintiffs to whom a judge can award compensatory or punitive damages • Intentional discrimination remains a prerequisite • Compensatory damages include: back pay, future monetary losses, emotional pain and suffering, mental anguish, and other nonmonetary losses • Authorizes compensatory and punitive damages as a remedy for plaintiffs seeking redress, not only from race and skin color, but also based on gender, religion, or national origin • Age discrimination is still not included • Plaintiffs discriminated on basis of race and skin color can collect unlimited damages, while there is a cap on any suit involving gender, religion, or national origin. The amount is based on the number of employees an employer has, and does not apply to back pay awards, which are limited on the amount of pay lost. Punitive damages: • Punitive damages can be awarded only when employer engaged in illegal discrimination "with malice or with reckless indifference to the federally protected rights" of the employee • Requires proof of evil motive or intent, or callous indifference of the sort that calls for deterrence and punishment over and above that provided by compensatory awards Expert witness fees: • Each expert witness must spend time reviewing the case, researching particular issues, preparing for trial with the plaintiff's attorney, and testifying.

What is the Family and Medical Leave Act?

• Family problems, adoption, mom/dad in hospital, child • 3 months (12 weeks or 1,250 hours) until you're entitled to it without pay, and you are allowed to come back and get your job • To qualify you have to have both: work for one year and up to 1,250 hours during the prior year • FMLA addresses employees with problems obtaining time off from work to care for sick family members • Entitles eligible employees to take up to 12 weeks of unpaid leave per year for childbirth, adoption, foster placement, or to take care of a child, spouse, or parent who has a serious health condition, or for the employee's own serious health situation • To be eligible: 1. Must have been employed for at least 12 months before the leave commences 2. Have worked at least 1,250 hours during the 12-month period immediately prior to the leave • Employers must carry on their payroll 50 or more employees for each working day for each of 20 or more weeks in the year • Upon returning from the leave, an employee must be reinstated to the position held before the leave or to a comparable position with equivalent pay, benefits, or other terms of employment • If upon return from a leave the employee is unable to perform the tasks of his job, the employer is not obligated to reinstate him to that job • Prohibits retaliation against an employee who exercises his rights under the Act • An employee whose violation of company rules is discovered during his leave can be terminated for violation of the rules (e.g. unauthorized use of company card)

What are the rights of an airlines captain, what can he do?

• Federal Aviation Act: Occupants of the plane can readily be placed at risk, so the law gives pilots significant latitude in deciding to remove a ticketed passenger from the plane prior to takeoff • Such a refusal cannot give rise to a claim for damages unless the carrier's decision as arbitrary or capricious (impulsive) • When the pilot/airline is sued, the court will make an objective assessment of the carrier's decision and the circumstances/fact know at the time, the time constraints under which the decision was made, and the general security climate in which the events unfolded • The pilot is entitled to rely on a flight attendant's representations that a passenger is disrupting the attendant from performing her safety-related duties; the pilot is not required to pursue further inquiry of the circumstances • Airline personnel are wary of any attempt by a passenger to access the cockpit

How does one compensate for loss of an animal when being shipped from one destination to another by airlines?

• First document you look at if your pet is missing is the tariff • Value of pet: you get the value of your pet, nothing more; regardless of emotional attachment • If not enough in tariffs, then purchase insurance (airline is obligated to sell insurance)

Define franchising.

• Franchise: an arrangement in which the owner of a trademark, service mark, or copyright licenses others to use the mark or copyright in the sale of goods or services

What laws govern riverboats/ships on high seas?

• Gambling on the riverboat: don't worry about state laws, worry about maritime law because you're not really in the state statutes. • Everything that happens on high seas is covered by the Jones Act • Many cities bordering on waterways are home to riverboat casinos, as laws that prohibit gambling on shore do not apply at sea • In some states, a riverboat can be located dockside but totally in a body of water, while in other states, a boat must travel a certain distance off shore • Maritime laws affect events occurring on boats on the waterways of the U.S. • Sometimes the outcome of a case depends on whether maritime or state law applies • Litigation has resulted to determine which laws apply to riverboat casinos • One issue that varies greatly is the remedy for when an employee is injured while on duty. According to state law, recovery is limited by workers' comp laws (quicker resolution outside of court, but doesn't allow damages for pain & suffering). • Jones Act: enables employees injured while on a boat to sue in a court for the full value of their injury, including pain and suffering • To apply, the boat on which the injury occurred must qualify as a "vessel in navigation" • Even a boat capable of navigation is not viewed as a vessel if it is moored indefinitely to the shore with intent to be used for gaming purposes only, and not navigation • In 1999, the law changed allowing gaming on permanently moored barges • However, Jones Act still does not apply, and employees are limited to the workers compensation remedy • Even where the boat is moved on occasion (e.g. for maintenance), if its primary purpose is to house a moored casino, the Jones Act will not apply • Even if it is built to navigate, if it ceases its transportation function, Jones Act does not apply

What is the liability of the travel agent for negligence of supplier (airline, hotel, cruise line)?

• Get on board boat, and you slip & fall, it's the supplier fault (not travel agent, not tour company) • Responsibility and duty of supplier to make sure you're safe and secure • Travel agents and tour operators are not liable to travelers when the latter are injured at recommended facilities due to the suppliers' carelessness.

With the dram shop act, what is liability now to licensee?

• If the licensee (the bar/restaurant/liquor store) sells alcohol illegally to someone who is intoxicated/minor and the person gets into an accident. The person who is injured gets to sue the licensee if you served alcohol illegally • Objectives of dram shop acts are to discourage proprietors from selling alcohol illegally and to afford compensation to victims whose injuries emanate from the unlawful sale of alcohol • In a few states, the amount of damages that a plaintiff can collect from a licensee is capped at a specific amount on the theory that the major share of responsibility for the injury should fall on the intoxicated driver

What is geographic proximity and its relevance to likelihood of confusion?

• If the trademark owner and second user do not compete in the same markets, the public is unlikely to confuse one for the other • When two parties employ the same mark on goods of the same class, but they operate in remote and separate markets, the second user may legally continue to use the name • An exception is where it appears that the second adopter has selected the mark to benefit from the reputation of the first user or to forestall the expansion of the first user's business • If the term is geographic and difficult to protect than a fanciful word, it may be okay

What happens when rent a car overbooks?

• If there's an overbooking on a rental car, and they don't have any more cars • Go to hertz, get a comparable car, and avis has to make up the difference in price

What is retaliatory discharge?

• If you complain about working conditions (you have a right; e.g. OSHA) and your employee gets cited and they say you shouldn't have told and you fire them, that's retaliatory discharge and you can get compensation • Employer might have to do back pay, forward pay, promotion, etc. • If employees commence a lawsuit under the FLSA, the employer is prohibited from discharging or otherwise discriminating against such employees

How do you file a complaint with the EEOC?

• If you feel discriminated against, you have to file a complaint with EEOC • They must make a finding within 180 days • You can't just sue automatically, you have to go through EEOC first • If you do not get a ruling in your favor, you can sue within 90 days; but you must wait til you get that ruling! • If they do not give a ruling within 180 days, you can sue your employer • Before a Title VII action can be brought in federal court, a discrimination charge must be filed with the EEOC, which has regional offices • Reason is Congress' intention that the principal administrative mechanism to resolve employment discrimination claims is that agency • If successful, the EEOC's investigation will avoid the need for a lawsuit • Rules and procedures for filing and strict time limits • Employee must file a claim with the agency within 180 days after the alleged discriminatory act • EEOC staff will meet with the employee and make an initial assessment of whether the claim is supported by the facts and whether it should proceed • If the EEOC declines the claim, the employee can proceed with a lawsuit in court against the employer • If the EEOC prosecutes the claim, it will prepare a complaint, forward it to the employer, and meet with them to reach a resolution • If EEOC fails to act on a claim within 180 days of filing, the employee can request a right-to-sue letter authorizing the worker to file a lawsuit in federal court against the employer notwithstanding inaction by the EEOC • Once the employee receives the letter, he has 90 days to file the lawsuit. • If the employee waits long, it will be dismissed

What is due process with licensing?

• If you have a license from the state and it gets taken away, you can appeal to overturn decision - this is call "due process" • The licensee is entitled to due process: the right not to be deprived of property (including a license) without fair hearing • Before a license can be revoked, the licensee is entitled to reasonable notice of the grounds for which revocation is sought, sufficient time before the hearing to prepare a defense, a hearing, the opportunity to obtain an attorney, an impartial decision-maker, and a decision based solely on the record, meaning the evidence presented at the hearing • Licensee is entitled to info identifying the specific conduct attributable to him that allegedly violates the rules relating to the license, so they have sufficient info to address the allegations and prepare a defense • Licensee must be provided with the date of the hearing • Where a licensee receives a notice to appear before the licensing board and believes the notice is inadequate, the licensee should request additional info concerning the charges or additional time to prepare a defense, as the case may be. Failure to object may result in a waiver of any due process defects in the notice.

If you work for an American Company abroad, do you get the same rights you would in America?

• If you work in China for an American company, you get the same rights that Americans do • If you work in a Japanese company in America (e.g. Toyota), you do not get the same rights that an American company would have • Treaty or binding international agreement that says the company must give preference to nationals over international

What is the Mandatory Verification Employment Act (Immigration Reform & Control Act)?

• If you work in the United States, you have to be a legal resident. • You do not have to be a citizen to work, but you have to have the proper identification (e.g. green card) • Within 3 weeks that you find out they're an illegal alien, you can dismiss them. You don't have to call the authorities,that's not your job. • Immigration Reform and Control Act: enlists employers in the effort to prevent illegal aliens from working in this country • Requires employers to verify the employment status of workers they hire • Employer must complete and retain a form called the Employment Eligibility Verification Form (Form I-9) • Primary purpose is to verify that the individual is authorized to work in the U.S. • Employee must present identification and proof that he has permission from the INS to work here • No later than three days following the date of hire, the employer must sign Form I9, under penalty of perjury, stating that the employer has verified that the individual is not an unauthorized alien • If the employee is unable to locate the necessary documents, the employer may allow 21 days for the employee to secure them. • If the employee has not produced them by the end of the 21 days, the employer must terminate that worker • IRCA prohibits discrimination in employment based on citizenship status, which means an employer cannot refuse to hire, based on lack of citizenship, a qualified alien authorized to work • The IRCA also provides a preference in hiring and recruiting for a U.S. citizen over an alien if the two individuals are equally qualified

What if there's an accident, who is liable? Whose insurance has first priority? Who's liable for defective car initially?

• In Hawaii, insurance on the car comes first: rental car's insurance is primary • If it's your fault, rental car will go after you when they pay. If it's not your fault, the rental car will take care of it. • If you don't take out additional insurance, it's your insurance company that pays the difference. • When a rental car is involved in an accident while a customer is driving, the rental company generally is not liable to people injured • Exception is the circumstance where it negligently entrusts the vehicle to a lessee

What is the requirement of an airlines in regards to providing access to a handicap on the airlines, what does he have to be able to do?

• Look at American Disabilities Act or Air Carrier Access Act • If you're handicapped, as long as you have mobility (can on your own accord/power get on and get off an airplane), the airplane cannot refuse you a seat. • If you can't make it to the next gate, let the airline know you need help beforehand. Don't get there and be upset because they won't be liable. Duty of the airline to assist. • Persons with disabilities now have a legal right to use the airlines if they can meet minimum requirements concerning mobility that are designed to ensure personal and public safety • Refusing service to people who meet these minimum criteria will result in liability • Individuals claiming disability discrimination cannot originate their case in court, but rather must begin the case in an administrative proceeding (Secretary of Transportation) • If an airline has adopted a tariff requiring a companion for a disabled person and has a rational reason for that requirement, the tariff will be enforceable. • Other provisions of the ACAA include: • Air carriers must design new and renovated terminals to accommodate people with disabilities • Airlines must provide fully accessible services in all existing airport facilities • Airlines cannot require passengers with assistive devices to undergo special security procedures if the person using the aid clears the system without activating it, but are entitled to examine assistive devices they believe may conceal a weapon • Airlines must allow passengers with disabilities to store canes and other assistive devices close to their seat, and cannot count that equipment toward a person's limit of carry-on luggage • If space in the baggage compartment is insufficient to accommodate all travelers, priority must be given to wheelchairs and other assistive devices, and personal mobility equipment stored during flight in the airplane's baggage compartment must be among the first items removed form the compartment upon arrival at the destination *Disclosing Need for Assistance • Travelers with disabilities must make known their needs to the airlines • Travel providers need not guess what the needs of a person are • It is a violation to force handicapped individuals to accept services they do not request

What are unions and what regulates them?

• NLRA: National Labor Relations Act • Protects employees, so they can assist, they can join, they can form unions • NLRB: National Labor Relations Board • Enforces the NLRA • Unions: organizations of workers whose mission includes negotiating for higher wages, better benefits, greater job stability, and safer workplaces • Achieved in significant part by collective bargaining: the process whereby representatives of the union negotiate with representatives of management (owners and operators of a company) on terms of employment such as hours, wages, benefits, vacations, and working conditions • Collective bargaining agreement: the resulting contract between workers and management • Union membership customarily enhances the bargaining power of workers because unions are acting on behalf of not just an individual but rather groups of employees • National Labor Relations Act (NLRA): federal law enacted in 1935, protects employees' right to form, join, or assist a union • Encourage practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees • Union membership is a protected class for purposes of discrimination • An employer violates the NLRA if it refuses to hire an applicant because of union activity or retaliates against a union activity by demoting, transferring, or terminating that person • NLRA is enforced by the National Labor Relations Board, which has the authority to prevent employers from engaging in unfair labor practices • Prohibited acts include: • Threats, warnings, and orders to refrain from protected union action • Discrimination against employees who participate in union activities • Retaliation for filing a charge of an unfair labor practice with the NLRB • Refusal to negotiate in good faith with union representatives over conditions of unemployment

• What is negligent entrustment?

• Negligent entrustment: you gave someone an instrument and you knew he wasn't supposed to have this instrument • If a guy comes in drunk and wants a car. If you rent him a car and he gets in an accident, the rental car company is liable. • Negligent entrustment: providing a product for use by another person knowing that person is likely to use the car in a dangerous manner • Only liable when it has reason to know the lessee is incompetent to drive the car. If it has such knowledge, may be liable for the damages. • Must intoxicated or otherwise physically or mentally impaired when renting, unusually young or inexperienced, or on a "Do Not Rent" list • Negligent entrustment does not apply where a car-rental company had intended but failed to place the renter on a "Do Not Rent" list

Do you need a license for mandatory recycling?

• No license necessary to recycle • Most states and localities have adopted laws requiring businesses and individuals to recycle of their waste products • Purpose is to save natural resources, reduce pollution, and decrease the amount of waste that go into land • Recycling laws vary, but basically they require that businesses and individuals separate recyclable waste from the rest of the garbage, and waste haulers are required to deliver the recyclable waste to recycling centers • Food service businesses are typically required to separate certain food and beverage containers, metal/aluminum containers, and certain type of plastic containers

What is OSHA?

• Occupational Safety & Health Actx • Federal and state • Comes in and surprises to make sure conditions are safe for employees • Occupational Safety and Health Administration, a federal agency whose mission is to ensure that workplaces in the U.S. are safe • Enforces laws passed by Congress as well as regulations adopted by the agency that mandate safe conditions at work sites • Some states have adopted their own safety standards, which are at least as demanding as OSHA's and may be more stringent • Agency hires and trains inspectors to investigate whether employers are complying with applicable safety rules • In addition to routine safety audits, inspections occur in response to accidents, complaints by employees or customers, and referrals from other government agencies • Employers who fail to comply face substantial fines and penalties

**What are the potential liabilities of condo hotels?

• Owners own each unit and when they aren't using it, they put it into a pool for a managing company to rent out. • If he doesn't do a good job or forgets to do something, the owner can sue the managing company for improper management. But owner is still liable because he owns that unit. • Typically more amenities than a hotel

What is the purpose of anti-trust laws?

• Purpose: Maintain reasonable prices on sale of goods • You want competition, low prices

**What is the difference between business and social purpose, in regards to the dispensing of alcohol?

• Social hosts are not liable if their guests have a lot of drinks • In Hawai'i, if parents allow children to drink and children kill someone, parents are liable

**Under what circumstances will airline refund ticket?

• Sometimes circumstances entitle a traveler to a refund on airline tickets, but getting that refund can be difficult. • If airline cancels a leg of a flight that a travel agent has paid for a traveler, airline is required to refund traveler directly because once agent has paid, it is no longer an agent • If agent is not authorized to act for the principal, the principal is not bound by the acts of the agent. The alleged agent is liable for fraud.

What is sovereign authority in regards to indian reservations?

• Sovereign authority: Run their own show, govern themselves, own laws. • Native American tribes exercise sovereign authority over their members and territories • Tribes are separate from our federal and state governments and have the power to regulate their internal affairs by making their own substantive law • The power to enforce that law rests with their tribal courts and not federal courts • Tribal sovereignty is subordinate only to the federal government • As sovereigns, tribes are immune from lawsuits unless they specifically waive that immunity

What is a tariff how does it apply?

• Tariff: rule or condition of air travel that binds the airline and passengers • Cover such items as limitations on an airline's liability for damaged baggage, procedures for filing a claim, rules for reservations and check-in times, limits on the airline's liability for schedule changes and flight delays, and personal injury liability limitations • Travelers are bound by tariffs even though they do not know about them and do not expressly agree to them • Tariffs are developed by the airlines and must be approved by a government agency, the Department of Transportation • Some tariffs contain very one-side language favoring the airline

What are your liabilities as a licensee to a third party that is injured by a patron who gets drunk in your establishment?

• The bar may be held liable to others who are injured from the patron's intoxication • The potential liability under dram shop acts is very significant • For a plaintiff to be successful, she must establish the hospitality establishment served alcohol illegally • In a limited number of states the dram shop act contains a provision limiting the licensee's liability to cases where the bar or restaurant knows that the patron will soon be driving a motor vehicle (e.g. strip mall might be accessible by foot)

What is likelihood of confusion?

• The required element of likelihood of confusion can be proven in one of two ways: 1. Showing actual confusion - customers who were misled 2. By evidence establishing a strong potential for confusion • Determine likelihood of confusion: 1. Strength of the mark (how long it has been used; how much advertising has been done; how familiar consumers are with the name) 2. Relatedness of the goods between the first user and alleged infringer 3. Similarity of the marks used by each 4. Evidence of actual confusion 5. Marketing done by the parties of the marks 6. Degree of care exercised by consumers when purchasing the item (confusion is less likely where buyers exercise care and precision in their purchases, such as for expensive or sophisticated items) 7. Defendant's intent in adopting the mark 8. Likelihood plaintiff will expand its operations • Low-priced items - consumers exercise only limited attention to the business name, increasing the possibilities for confusion

How does travel insurance work and when would you usually take it out?

• To protect against financial losses associated with trip cancellations, injuries, and other mishaps that can occur while on a trip, travelers can purchase travel insurance • Types of risks covered by travel insurance can include losses resulting from: 1. Trip cancellations or interruptions due to war or terrorism, supplier default (e.g. hotel goes bankrupt), or sickness, injury, or death of the insured, an immediate family member, or a traveling companion 2. Trip delays due to natural disasters, quarantine, transportation cancellations, injury, or stolen or lost passport, visa, or money 3. Medical expense for an injury or illness incurred on a trip 4. Loss or damage to baggage • Travel insurance can be purchased through a travel or insurance agent

What's the difference between a trademark and a servicemark?

• Trademark: any word, name, symbol, or device adopted and used by a manufacturer or merchant to identify its good sand distinguish them from products sold or manufactured by others • Service mark: similar to a trademark except that it identifies services rather than goods

How do you protect music and music performance? By whom?

• Two main organizations are the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) • Both license (authorize for a fee) the public performance rights of its members' copyrighted works on a nonexclusive basis • A hotel/restaurant must have a license from these organizations to use the works • Since an establishment cannot easily restrict is musical offerings to the works controlled by one organization only, most will need a license from both • After collecting the license fees, ASCAP and BMI deduct overhead expenses and distribute the balance to their members as royalties for the use of their compositions • Royalty: payment made to a composer for the sale of copies or performance of his work. The allocation of the money among members is based on detailed, weighted formulas ASCAP: • Not based on number of songs, but based on a combination of factors that include the number of nights a week the establishment offers music, seating capacity, and whether admission is charged • Process for determing the license fee: • Club/restaurant submits a written application • ASCAP responds in writing, advising the business of the proposed fee • 60-day negotiation period to reach a mutually agreeable compromise • If unsuccessful, the hotel/restaurant can apply to a federal district court for a determination of a reasonable license fee • Substantially lessening ASCAP's ability to wield its bargaining power BMI: • License fees charged by BMI are determined through negotiations between BMI officials and established trade associations such as the National Restaurant Association • For hotels and restaurants, the fees are determined based on annual expenditures for musicians and entertainers • For concert halls, fees are determined by seating capacity • For other establishments such as ballrooms and clubs, fees are based on a percentage of gross annual income

Who's the franchisor, who's the franchisee, and can the franchisor dictate prices to the franchisee?

• Two parties in a franchise agreement: 1. Franchisor: the owner of the mark or copyright 2. Franchisee: the party who receives the right to use it • Franchisor (McDonald's) cannot tell franchisees what price to sell their products at (price fixing) • Relationship is contractual • The franchisor authorizes the franchisee to utilize the trademark, service mark, or copyright • In return, the franchisee agrees to pay the franchisor an initial sum of money plus a percentage of profits on an ongoing basis. • The better known the business name is, the higher will be the fees paid by the franchisee • The contract also typically requires the franchisee to maintain certain standards and the franchisor to provide assistance an advice • Since the business is not an employment relationship nor a principal/agent, the franchisor is not liable for the acts of a franchisee • Franchisee is the owner and operator of the business and the employer of the employees • Franchisor is only liable if the franchisor's agents controlled or participated in the day-to-day operations and management of the business, or, where a patron is injured by a product, if the franchisor made or sold the item that caused the injury

In common law, was the licensee liable to the third party victim?

• Under common law, in most states the licensee was not liable for damages caused when it served alcohol to someone who was under 21, visibly intoxicated, or a habitual drunkard and that person was injured or caused injury to another. • Thus, if a wrongfully served customers drove a car and caused an accident, the bar is not liable because the cause of the injuries was the consumption, and not the sale of the liquor. • The injured person, if other than the operator, could sue only the drunk driver. • If the wrongfully-served customer was injured, he had no remedy. • As the number of alcohol-related accidents grew, most states found the common-law rule unsatisfactory

What is the uniform commercial code? What is it there for?

• Uniform Commercial Code (UCC): set of rules designed to simplify and modernize the law governing the sale of goods, including food. • Implied warranty that goods, including foods are merchantable: the goods are fit for their ordinary purpose and are of at least average quality • Exists even if the parties never mention it • Warranty renders manufacturers and sellers of food that food is safe. • Basis is public policy for protection of consumer

What is an unauthorized driver? What's the liability of the rent a car company for unauthorized drivers actions or inactions?

• Use of rented vehicle by unauthorized drivers • Authorized operators include the lessee and anyone else the rental company approves in writing; everyone else is unauthorized • Virtually all contracts include a provision forbidding operation of the rental car by an unauthorized driver, as well as a provision stating that insurance coverage applies only to authorized drivers • The traveler is liable for damages, but they in turn, may be able to recover from the friend

What is the liability to breach of contract by third party supplier due to the negligence of a travel agent?

• When a customer purchases a trip from a travel agent and the trip does not materialize as portrayed, the agent may be liable for breach of contract • The party who dealt face-to-face with the client and who arranged the travel itinerary was the travel agent; the client likely had no direct dealing with the wholesaler, and the client may not even know how to contact the wholesaler • Imposing liability on the travel agent motivates the agent to verify that the travel wholesaler is making the necessary plans reservations for the booked tour • The travel agent is not without a remedy • Liability ultimately rests with the party at fault, the wholesaler • However if the wholesaler goes out of business, the travel agent will bear the loss. This fact should motivate travel agents to investigate the tour operators with whom they do business. • Some travelers use charter companies that offer reduced rates for those who do not mind traveling without a lot of frills. • The charter company is liable if it breaches its contract to provide transportation.

What is the liability of tribes in regards to individual tribe members negligence?

• While tribes are entitled to sovereign immunity from negligence liability, states differ on whether individuals associated with the tribe are • Some states hold individual tribal officers as well as tribal employees acting in their representative capacity (as tribal representatives) and within the scope of their authority are entitled to the immunity • Some states have held that employees of the tribe, s distinguished from tribal officials, are not entitled to immunity. The mere employment relationship of the defendants does not grant them the right to assert the Tribe's sovereign immunity • A tribe's sovereignty applies only to the power needed to control internal matters of the reservation (e.g. construction work) • If Native American tribes transfer the management of casinos to a corporate entity separate from the tribe, these entities are normally named as a defendant when a patron is injured and sues. Customarily these entities are entitled to immunity.

How does resume fraud apply to employment?

• You can embellish, but don't lie • Some employers utilize intensive one-on-one, in-person testing of candidates for each skill required by the job and also for communication proficiencies • Also helpful are thorough reference checks • If you lie, they can fire you on the spot • If any data is later discovered to be false, this statement lays the foundation for a civil case in fraud (reimbursement of expenses incurred) or a criminal prosecution for perjury (jail, fines, and probation)

What is "at-will" employment?

• You can quit whenever you want, but you can also get fired whenever you want • Unless contract or union that has negotiated you a contract • In many states, employment is considered "at-will" • At-will employment: employment contract between an employer and an employee is indefinite in duration and can be terminated by either party for any reason or no reason at any time without liability • If a written employment contract exists and there is a provision stating that an employment relation will exist for a specified period f time, early termination can result in liability

How do past disabilities impact employment?

• You cannot ask about past disabilities (e.g. cancer) • As long as they can perform the job NOW • The ADA protects not only people with disabilities, but also those with a past disability (e.g. cancer survivor) • Also protects people who have a relationship with or are caregivers for a disabled person (e.g. spouse or parent) • If applicant does take excessive leave, she can be terminated for that reason

What tests can you make an employee/applicant take?

• You cannot make someone take an HIV test (HIV is a disability); PROTECTED BY ADA • Can make them take a drug test • Can't make them take a lie detector (unless they work for CIA, etc). • You can mandate a TB test • People afflicted with AIDS and people who are HIV-positive are considered disabled for purposes of protection under the ADA, provided the infection substantially limits them in a major life function

How should an employer treat pregnant employees?

• You cannot require someone to take unpaid leave because they're pregnant unless it interferes with business necessity (e.g. flight attendant) • Unlawful for an employer to treat pregnancy, childbirth, or related medical conditions, less favorably than other disabilities, unless justified by business necessity • Pregnancy Discrimination Act: women who are pregnant or affected by related conditions must be treated the same as other applicants and employees; adverse job action can only be based on the inability to work • She cannot be fired or forced to take a leave of absence because she is pregnant • Terminating a pregnant employee because of concern for her health or the employer's potential liability constitutes illegal discrimination based on pregnancy • Pregnancy discrimination includes reneging on a promised promotion from manager of catering to director of catering and sales because the employee became pregnant • Women who are pregnant and able to perform the tasks associated with their job must be permitted to work on the same conditions as other employees • If the pregnancy becomes disabling and the woman is not able to work for medical reasons, she must be accorded the same rights, privileges, and other benefits as other disabled workers • When an employer is imposing adverse job action on all employees, the employer can include the pregnant woman among those affected • If an employer can show that a business necessity renders pregnant employees unfit, the employer can require pregnant workers to take a leave of absence pending wellness following birth • Reinstatement policies for employees returning to work after giving birth must be the same as for employees returning to work after absences due to other temporary disabilities • The EEOC has declared that an employer cannot prohibit an employee from returning to work during a specified length of time after childbirth

What is the duty of the tour agent in regards to you the traveler? What does he have to do to make sure your trip gets you to where it is?

• You gotta double check as a tour agent that the cruise line hasn't gone bankrupt • Travel agent has a duty to investigate (duty) that your client is going to get where he's going to go, is going to be as safe as possible, and get on whatever supplier they are going (not broke, nothings going wrong there) • Agents have a duty to their customers to do the following vis-à-vis these service providers: • Investigate their operations • Locate material info about them that is reasonably available • Disclose that info to their customers • Travelers are legally entitled to expect that travel services recommended by a travel agent will be reliable and suitable (e.g. not out of business) • Failure of a travel agent to adequately investigate can lead to liability • Travel agent doesn't have to know the exact condition of the faucet in the room • Travel agent should verify and confirm components of the tour and the price before selling

Who is liable if you don't have the proper documentation to go to your destination?

• Your responsibility to have your documents • If you don't have your passport, it's your fault. Visa's in your passport if you don't have your visa, which is in your passport, it's your fault • If the airline undertakes to verify proper documentation and refuses passage to a ticketed traveler who lacks a needed visa, the airline will not be liable for failure to provide transportation

Who is responsible if you get on the wrong plane?

• Your responsibility to know where you're going & that you're on the right plane • Passengers are responsible for ensuring their tickets accurately state their intended destination