BL 3335 Final Exam

Retaliation (Plaintiff must prove...)

(1) protected activity (2) retaliatory conduct (3) retaliatory motive -- timing between activity and motive *mixed motive --> if there is any other legitimate reason, defendant may not be liable

Harassment based on hostile environment (prima facie case)

(1) unwelcome by victim (2) based on gender (or any bases) (3) sufficiently severe of pervasive to create an abusive environment (4) affect a term, condition, or privilege or employment

Title VII prohibited bases

(SCORR) - Sex - Color - Origin - Race - Religion

implied contractual limitations of employment

(a) period of employment -statements regarding salary per period - english rule - objective intent - statute of frauds: if term exceeds 1 year, agreement must be in writing (b) reason for termination - general statements and assurances - statements of job security (c) handbooks - substantive - procedural - contractually binding if: (1) reasonably certain and definite terms (2) effectively communicated to employee (3) valid acceptance)

Issues with "outside relationships" with agencies

(relationship between the principal and 3rd party and between the agents and 3rd party) issues: - vicarious liability-- responsibility of the superior for acts by subordinate - conflict of interest - contract issues - duty to notify

Age Discrimination in Employment Act

- Employer cannot discriminate against 40 years or older - For the act to apply, an employer must have 20+ employees and employer's business activities must affect interstate commerce - "but for the employees age, the action would have not been taken.."

Statutes Regulating Employment (describe aim and recognize the applicability)

- Equal Employment Opportunities (Title VII of Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act) - Compensation and Benefits (Fair Labor Standards Act of 1938 "FLSA", Social Security Act of 1935 "OASDI", Federal Insurance Contribution Act "FICA", Medicare, Employee Retirement Income Security Act of 1974 "ERISA", Federal Unemployment Tax Act of 1935 "FUTA", Affordable Care Act of 2010, Consolidated Omnibus Budget Reconciliation Act of 1995 "COBRA") - Health and Safety (Occupational Safety and Health Act of 1970, Workers' Compensation Statutes) - Employee Leave - Whistle Blowing (Whistleblower Protection Act, Texas Whistleblower Protection Act, Serbanes-Oxley Act of 2002, Dodd-Frank Wall Street Reform and Consumer Protection Act) - Miscellaneous (National Labor Relations Act of 1935)

Might an agent be liable for breaching its duty to a principle for preparing to compete with the P if no competition occurs until after termination of agency relationship?

- Grey area - not for preparing but have to be careful with how you are preparing

risks of misclassifying an employee as an IC

- IRS investigations (watches so employers cannot avoid certain tax liabilities) - Financial penalties (employee comp benefits) - Tort Liability - Department of Labor -- Misclassification Initiative

Faragher defense to harassment

- If plaintiff suffered a tangible job detriment, employer in strictly liable - If no, employer has a defense a. supervisor -- offer evidence that (1) employer took reasonable steps to prevent and correct the situation and (2) employee unreasonably failed to take advantage of the corrective or preventative opportunity b. co-worker -- employer may be liable if he knew or should have known about the harassing behavior and failed to take remedial action

Duty of Loyalty (4 Components)

- Outside benefits of secret benefits (agent is not entitled to receive benefits from outside agency relationship unless P knows about and agrees to receipt of benefits) - Representation of More than One Principal (A may not act on behalf of two or more P whose interest conflict) - Confidential Information (A can neither disclose nor use for his own benefit confidential info acquired during course of agency; terminates agency relationship; may still be liable for breach of k after relationship is terminated) - Competition with the Principal (A may not compete with the principal in any matter within the scope of the agency business during the course of the agency relationship)

Reimbursement and Indemnification (P-->A)

- P has a duty to reimburse A for any costs incurred on P's behalf - P has a duty to indemnify (compensate) an agent for liabilities incurred because of authorized and lawful acts/transactions - P must indemnify A for the value of the benefits that an A covers on the P (specified in agency k)

What protection does Title VII afford to women who are pregnant?

- Pregnancy discrimination act: must be treated the same as other employees if she has the same ability to work

Dodd Frank Wall Street Reform and Consumer Protection Act (whistleblowing)

- an effort to reform the practices that created financial meltdown of 2008 - employees in financial services industry - protected for engaging in whistleblowing activities (filing a claim or testify in any proceeding) or objecting to or refusing to participate in activity they reasonable believe to be a violation of any statute subject to SEC jurisdiction

Express contract of employment

- an individual employed under an express contract for a definite term may not be fired before the expiration of the term except for cause, unless contract provides otherwise - no stated duration and no stated task to be completed can be terminable at will by either party

Remedies for Title VII

- backpay - front pay - reinstatement - compensatory damages - punitive damages (if malice)

Gender discrimination

- based on sex - pregnancy, childbirth/related medical conditions, sexual harassment

National Origin discrimination

- cannot discriminate based on characteristics of a group (ie. physical, cultural, linguistic) - does not prohibit discrimination based on citizenship

Race discrimination

- cannot discriminate on race of employee, or the employees spouse/children

Advantages of hiring an IC rather than an employee

- cheaper - no benefits - less administrative costs - less liability

"cure" or "waive" a conflict of interest

- disclosing the conflict, needs consent from the client - give a clear understanding of the potential consequences of waiving the conflict

risks of whistleblowing

- employer retaliation - industry blacklisting - professional violations

What do Workers' Compensation statutes provide? How do they mitigate risks?

- est administrative procedure for compensating workers injured on the job - in exchange for these benefits, employee may not sure the employer for negligence - workers insurance shifts risk

How can an employer mitigate the risk of liability for harassment? (Faragher)

- implement written anti-sexual harassment policies which include accessible grievance procedures - immediately and thoroughly investigate complaints -implement reasonable remedial action - carefully screen, train and monitor supervisors

Employer's administrative responsibilities or risks vis a vis an employee that is does not have vis a vis an IC

- must withhold taxes - provide benefits - more liability - laws that prohibit discrimination apply

How does NLRB enforce employee's Sec. 7 rights?

- oversees union protection and prohibits employer from taking an adverse action against an employee because the employee is engages in protected concerted activity

Sarbanes Oxley Act (whistleblowing)

- people who work for publicly traded companies, mutual funds, or any officer, employer contractor, subcontractor of such company of mutual fund are protected from retaliation for whistleblowing - protected for providing info, causing info to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation - much report to appropriate law official, his supervisor, or any employee who has authority to investigate alleged conduct

Title VII Theories of descrimination

- retaliation - disparate treatment - disparate impact - harassment

National Labor Relations Act's protection of employees for engaging in concerted activity for mutual aid

- rights of employees to engage in collective bargaining and to strike -- defines # of employer practices unfair to labor - Est. National Labor Relations Board - prevents employers from engaging in unfair and illegal union-related labor practices

Implied contract of employment

- whether or not it exists depends on the parties' objective intent to be bound to the terms at issue (objectively manifests an unequivocal intent to be bound not to terminate) - can alter the employee's at will status

Three statutes that address the theft of trade secrets:

1) Economic Espionage Act- federal, criminal act against the theft of secrets of interstate or foreign commerce 2) Uniform Trade Secret Act- state, civil statute against misappropriation of trade secrets 3) Defending Trade Secrets Act- federal, civil act relating to info about interstate or foreign commerce

Give five examples of means of maintaining the secrecy of information.

1) recognize there is a insider and outsider threat to your company 2) identify and value trade secrets 3) supplement a proactive plan for safeguarding trade secrets 4) secure physical and electronic versions of your trade secrets 5) confine intellectual knowledge on a "need-to-know" basis

How is an agency relationship formed?

1. Agreement of the parties (expressed or implied) 2. Ratification 3. Estoppel - to stop them from denying something, arises when the principal's actions have created the appearance of an agency that does not in fact exist (ie. If landlord says rent will be reduced, the landlord is estopped from collecting the full rent if the tenant relied of this to stay in the building) 4. Operation of Law - often in family relationships and emergency situations

Sources of law that govern agency relationship

1. Common law (most predominant) 2. Statutory law - partners and employment relationships 3. Contracts

What common law duties does the principal owe to the agent?

1. Compensation 2. Reimbursement and Indemnification 3. Cooperation 4. Safe Working Conditions

Sources of exceptions to an employer's right to terminate an employee at will

1. Contract 2. Statute 3. Common law (public policy exceptions)

Right to Control Test -Employment Status: Employee vs. Independent Contractor

1. How much control does the employer exercise over the details of the work? (considerable control - employee; most important factor) 2. Is the worker engaged in an occupation or business distinct from that of the employer? (If so, IC) 3. Is the work usually done under the employee's direction or by a specialist without supervision? (if employer's direction - employee) 4. Does the employer supply the tools at the place of work? (if so, employee) 5. For how long is this person employed? (long - employee) 6. What is the method of payment? (time period - employee) 7. What degree of skill is required of the worker? (great degree of skill - IC)

What common law duties does the agent owe to the principle?

1. Performance 2. Loyalty*** 3. Notification 4. Obedience 5. Accounting

Harassment types

1. Quid Quo Pro - "this for that" - only for sexual harassment - plaintiff must prove there was a request for sexual favors and conditions were contingent on compliance 2. Hostile Environment - all bases - a pattern of sexually offensive conduct runs throughout the workplace and employer has not taken steps to prevent or discourage it

Administrative process plaintiff must take before filing suit for violation of Title VII

1. file a claim with the EEOC 2. EEOC investigates (180 days to complete) 3. employer has opportunity to respond 4. EEOC decides is claim is meritorious and then they can either file or not file the suit

public policy exceptions

1. refusing to perform an illegal act 2. reporting illegal activity 3. exercising legal rights 4. performing public duties

Duty of Performance (A-->P)

A agreement to use reasonable diligence and skill in performing work (breach of k if they set standard and didn't live up to it)

Duty of Obedience

A had a duty to follow all lawful and clearly stated instructions of P

Duty of Notification

A is required to notify the P of all matters that come to his/her attention concerning the subject matter of the agency

Duty of Accounting

A must keep and make available to the P an account of all property and funds received and paid out on the P's behalf

Trade secret vs. patent:

A well-kept trade secret could theoretically last forever. But there is a risk. Unlike with patents, it is perfectly legal to reverse engineer and copy a trade secret.

TX public policy exception

An employer cannot fire an employee who refuses to commit an illegal act that would result in criminal penalties

Who must comply with ADA?

Businesses that serve the public must modify policies and practices that discriminate against people with disabilities

disparate treatment vs disparate impact

Disparate treatment: intentional discrimination, intent is based off of a motive to discriminate Disparate impact: unintentional discrimination, occurs when a group of people are adversely affected by an employers policies/practices, even if they don't appear to be discriminatory - ie. dress code, physical tests, etc.

Who must comply with Title VII?

Employers/labor unions with 15+ employees

Why is an agent prohibited from accepting outside benefits, representing mult. principals, and competing with P?

It avoids all conflicts of interest

If a conflict of interest can be waived, should it?

Just because they can, does not mean they should - ethical issues of fairness arise

Under the TUTSA, when is one liable for misappropriation of trade secrets for merely acquiring a trade secret?

Liable if there was: 1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means 2) disclosure or use of a trade secret of another without express or implied consent by a person who used improper means to acquire knowledge of a trade secret

Does designating a worker as an IC in a contract of employment definitely establish his status as such?

No

Cooperation (P-->A)

P has a duty to cooperate with A and to assist the A in performing his/her duties

Safe working conditions (P-->A)

P has to provide safe working premises, equipment, and conditions for all agents and employees (mitigate reasonable and foreseeable risks)

Disparate impact (prima facie case)

Plaintiff must prove the same prima facie case Defendant: - offer evidence that it is a business necessity Plaintiff: - less discriminatory means of meeting that need

Disparate treatment (prima facie case)

Plaintiff must show: (1) member of protected class (2) qualified for position (3) adverse employment decision (4) others not in the same protected class did not suffer the same adverse employment decision (the employer continues to seek applicants for the position or filled the position with a person not in that protected class) Employer's defense: - there was a legitimate (nondiscriminatory) reason for the employment decision Plaintiffs rebuttal: - offers evidence that the defendant's reason is a pretext for a discriminatory motive

What is a trade secret?

a secret device or technique used by a company in manufacturing its products.

Duty of Loyalty(A-->P)

agent acts solely on behalf of the principle in all matters connected with the agency

Compensation (P-->A)

agent reasonable expects payment, therefore, the principal has a duty to pay the agent for services rendered

Conflict of Interest

any situation that impairs the ability to to preserve a particular interest

employment at will doctrine

both parties have the right to terminate relationship at any time for any reason with no liability

English only policy

can only speak english at all times or at certain times

gender stereotyping

cannot be denied an employment opportunity because they do not fit the stereo type

preparing to compete

develop business plan, contact attorneys, explore ideas

remedies to retaliation under Sarbanes Oxley and Dodd Frank

double backpay, reinstatement, litigation costs, attorney's fees, compensatory damages

Disparate treatment by failure to accommodate (prima facie case)

employee must demonstrate: (1) bona fide religious belief (2) conflicts with employment requirement (3) informed employer of belief (4) was disciplined for failure to comply employer then must show that it reasonably accommodated the employee's religious needs or undue hardship bc of accommodation

Duty to accommodate (religious practices)

has a duty to make reasonable accommodations unless to do so would cause undue hardship to the employer's business

Under the TUTSA, what are proper means of obtaining a trade secret?

independent development and reverse engineering unless prohibited by a contract or licensing agreement

What must a plaintiff prove to establish that information is a trade secret under TUTSA?

it is a "formula, pattern, compilation, program, device, method, technique, process, financial data, or list of actual or potential or supplier that meets the criteria" on N/C pg 154

In what context might the issue of whether a worker is an employee or IC arise?

lawsuits (mistakes and liability), audits, employee benefits

What does the Americans with Disabilities Act (ADA) prohibit?

prohibits and employer from discriminating against an employee with a disability if that person is otherwise qualified to perform the essential functions with or without reasonable accommodations

Title VII

prohibits harassment on all of the prohibited bases of discrimination (sex, color, origin, race, religion)

What is required for protection from retaliation for whistleblowing under the Federal Whistleblower Protection Act?

protects federal employees who report alleged illegal activity to an appropriate law enforcement official from retaliatory action

whistleblowing

reporting alleged illegal activity to an appropriate law enforcement official from retaliation action

Equal Employment Opportunity Commission

responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee based on the prohibited issues

Requirements for Texas Whistleblower Protection Act

same as fed - protects TX employees who report alleged illegal activity to an appropriate law enforcement official from retaliatory action - first must exhaust administrative remedies (only in good faith?)

competition

soliciting employees or customers, incorporating a business, acquiring a business space, entering into agreements with suppliers, selling products

Wrongful discharge

termination on an employee in violation of an exception to the at will doctrine

Under the TUTSA, what are improper means of obtaining a trade secret?

theft, bribery, misrepresentations, breach of a duty to maintain secrecy, espionage

bounty program (Dodd Frank)

whistleblowers who provide original info to the SEC or CFTC may recover between 10% and 30% of monetary sanctions in excess of $1,000,000 collected by agency