BLAW EXAM 2

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OSHA: Health Standards

•Workers and Toxic Substances—Besides issuing safety standards, OSHA has issued several health standards. These standards are more controversial because compliance is very expensive. They attempt to limit worker exposure to certain harmful substances, such as asbestos and vinyl chloride. The standards attempt to limit the possibility that workers will suffer "material impairment of health" from exposure to hazardous substances at work. •OSHA's ability to issue these types of standards has been challenged in court. After NIOSH recommended that benzene be considered carcinogenic for humans, OSHA issued exposure standards for it. The American Petroleum Institute attacked the standards as too extreme. The Supreme Court, in Industrial Union v. API, held that the agency did not have adequate information about the effects of benzene to justify the standards that it had issued. OSHA must make a finding that exposure to a substance "poses a significant health risk in the workplace" before it can require an employer to reduce exposure to the lowest feasible level. In American Textile Manufacturers Institute v. Donovan, the Supreme Court held that a cost benefit analysis is not required to justify an OSHA standard. That is, some standards that are very costly to implement relative to the benefits may still be enforceable because the OSHAct only requires that standards be "feasible," not cost effective. •Hazard Communication Standard—(HazCom) applies to all workers exposed to hazardous chemicals in the normal course of work. Chemical producers must identify and consider the possible hazards of all chemicals they produce. Information about these hazards must be updated regularly. Where hazardous chemicals are used, employers must have a written HazCom program that includes: •a) list of hazardous chemicals in the workplace; •b) labels with warnings and name of producer; •c) safety data sheets as to how chemicals should be handled and emergency procedures; and d) a description of employee training for emergency or non-routine tasks.

Noncompete Agreements Zambelli Fireworks Mfg. v. Wood (3rd Cir., 2010)

•Zambelli is a leader in fireworks. Wood was hired in 2001 and learned to put together and execute large fireworks displays. Over time, he learned trade secrets, client lists, prices, and other valuable information. The company paid for his training. In 2005, Wood signed a noncompete agreement that specified he would not work for a competitor for two years after leaving Zambelli and would not exploit information learned there. In 2008, he was hired by Pyrotecnico, a major competitor. The company agreed to pay his salary for two years if he could not work, and would cover legal expenses. Zambelli sued to enforce the covenant. •The district court held it enforceable and enjoined technical work by Wood. He appealed.

Chief Justice John Marshall Chief Justice 1801-1835

"It is emphatically the duty of the Judicial Department to say what the law is." - Marbury v. Madison (1803)

Constitutional Rights Imperative to Corporate Function: 5th Amendment Takings Clause

"Nor shall private property be taken for public use, without just compensation." "The Fifth Amendment's [Takings Clause] . . . was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States(SCOTUS, 1960).

Daniel Webster 1782-1852

"One Country, One Constitution, One Destiny"

Blackstone's Commentaries: Corporate Personhood

"Persons also are divided by the law into either natural persons or artificial. ... artificial are such as created and devised by human laws for the purposes of society ... which are called corporations ... ." - Commentaries of William Blackstone, 1765.

U.S. Constitution, Article 1, Section 8, Clause 3. The Commerce Clause

"The Congress shall have the power... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

EEOC: What Constitutes Employment Discrimination Based on Race

"Treating an applicant or employee unfavorably because of the person's race or personal characteristics associated with race."

EEOC: What Constitutes Employment Discrimination based on National Origin

"Treating applicants or employees unfavorably because they are from a particular country or part of the world; because of ethnicity or accent; or because they appear to be of a certain ethnic background (even if they are not)"

Barta v. Kindschuh, 246 Neb. 208, 212, 518 N.W.2d 98, 100 (1994).

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Daubman v. CBS Real Estate Co., 254 Neb. 904, 913-14, 580 N.W.2d 552, 559 (1998)

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Commerce Clause: Case Law Development

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The United States Constitution: Applications to Business: Development of Corporate Personhood

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EEOC Complaints by Protected Class

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Constitutional Application to Business After the Lochner Era

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STATE MINIMUM WAGE LAWS -GRAPH

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EEOC Charge of Discrimination Process

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The United States Constitution: Applications to Business: Development of Corporate Personhood

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The United States Constitution: Applications to Business: Development of Corporate Personhood

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Elements to an Agency Relationship

1.Agent is subject to P's right of control over the means by which A's work is performed. (the right of control does not need to actually be exercised, merely reserved by P). 2.Agent has a fiduciary duty to act primarily for the benefit of P 3.Agent holds the power to alter the legal relationships of P

Wickard v. Filburn (1942)

1.Can Congress regulate the production of wheat intended for personal use and not placed in interstate commerce? Yes. Congress can regulate the production of wheat intended for personal use and not placed in interstate commerce. 2. Can Congress regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power? Yes. Congress can regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power, even if the effect is indirect. That the production of wheat for consumption on the farm may be trivial in some cases is not enough to remove the grower from the scope of federal regulation where the aggregate effect of such behavior by many others is far from trivial. "even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce. . . ."

Determining Employment Status - IRS Factors

1.Instructions 2.Training 3.Integration 4.Services Rendered Personally 5.Hiring, Supervising Assistants 6.Continuing Relationship 7.Set hours of work 8.Full time required 9.Work on Employer's Premises 10.Order of Sequence 11. Oral / Written Reports 12.Payment by hour, week, month 13.Payment of business / travel expenses 14.Furnishing Tools / Materials 15.Significant Investment 16.Realization of profit or loss 17.Working for more than one firm at a time 18.Making service available to the general public 19.Right to Discharge 20.Right to Terminate

McDonnell Douglas Burden Shifting Test

1.The plaintiff makes out a prima facie case, which means demonstrating that: i.Plaintiff is a member of a protected class; ii.Plaintiff was qualified for and applied for an available position; iii.despite being qualified, plaintiff was rejected for the position; and iv.the position remained available after the plaintiff's rejection, and the defendant employer continued to seek applicants from persons of plaintiff's qualifications. 2.The burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the employment action. 3.The plaintiff must then demonstrate that the employer's reason was pretext for discrimination. 4."The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination" - TWA v. Thurston

Civil Rights Acts of 1875 and 1964Similar Language: Different Results

1875 Civil Rights Act •prohibited "racial discrimination in public places" which it defined as including "inns," "theaters," "conveyances on land and water," and "places of public amusement" •Struck down in 1885 on basis that 14th Amendment only allowed Federal Government to prohibit state action infringing fundamental rights - not private discrimination. 1964 Civil Rights Act •Each of the following establishments is a place of public accommodation within this title if its operations affect commerce (Commerce Clause), or if discrimination or segregation by it is supported by State action (14th Amendment)

1st Amendment: Corporate Political SpeechConsolidated Edison v. Public Service Commission of New York (SCOTUS 1980)

1st Amendment: Central Hudson Gas and Electric Co. v. Public Service Commission of New York (SCOTUS 1980)

OSHA Inspections:Stark Excavating v. Perez (7th Cir. 2016)

A crew for Stark was replacing a fire hydrant. They wanted to do the job quickly to minimize disruption on the street. They dug a hole. The foreman, Schupp, took a soil sample and noted that it would require 45 degree slopes for the hole, but that was not done. An OSHA inspector came along and wrote up a violation for the hole being too steep, between 60 and 80 degrees, which could cause a cave in. The citation said the violation was willful as Schupp admitted he knew the rule. Stark appealed. The ALJ changed the violation to serious, which is less than willful, and reduced the fine by $26,000. OSH Review Commission reversed and held the violation was willful. Stark appealed.

14-3: Principal's Liability: Negligent Hiring

A person conducting an activity through employees / agents is subject to liability for harm resulting from his conduct if he is negligent or reckless in the employment of improper persons. - Restatement (Second) of Agency, Section 213.

14-3: Principal's Liability

A principal or employer may be either vicariously or directly liable for the acts or omissions of an agent or employee. NJI2d Civ. 6.01 In tort actions, a principal may be either vicariously or directly liable for the acts or omissions of an agent. If an agent commits a negligent act or omission while acting within the scope of his or her agency, then the principal may be vicariously liable. If an agent commits a negligent act or omission done under the direction of or subsequently ratified by the principal, then the principal may be directly liability as a joint tortfeasor. As a practical matter, when a plaintiff injured by an agent sues the principal alleging vicarious liability (usually under a theory of respondent superior), the plaintiff is attempting to reach the deeper pockets of the principal.

Agency Relationship

Agency IS the fiduciary relationship that arises when: (1) the Principal manifests assent to another, the Agent, that the agent shall act on the principal's behalf, subject to the principal's control AND (2) the agent manifests assent or otherwise consents to the act. -Restatement (Second) of Agency, Sec. 144 The distinguishing features of an agency relationship are consent and control: the principal's and the agent's consent that the agent shall act on behalf of the principal and subject to the principal's control.Whether an agency exists depends on the facts underlying the relationship of the parties irrespective of the words or terminology used by the parties to characterize or describe their relationship.

Examples of What Nebraska Courts Have Found to be and not be an Agency Relationship

Agency Relationship = a) attorney - client b) power of attorney

14-1: Creating an Agency

Agency by Express or Implied Agreement of the Parties: An agency is typically formed by the consent and agreement between P-A. Express or Implied Ratification by the Principal: Agency by Estoppel (creating Apparent Authority): Agency by Operation of Law (Inherent Agency):

14-1a: Classification of Agents

Agents may be classified on the basis of their authority.(1)Universal Agents (2)General Agents (3)Special Agents (4)Agency Coupled with an Interest (5)Gratuitous Agent (6)Subagents *See Meiners Page 330 for Definitions

14th Amendment, Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

WORKERS' COMPENSATION: Filing a Claim

Almost all workers are covered by workers' compensation laws. Employees may make a workers' compensation claim if: a)they receive a personal injury, b)that resulted from an accident, c)that arose out of, and d)in the course of, their employment. Mental and nervous injuries, as well as physical injuries, are compensable. Unless an employer intentionally inflicted harm on the injured employee (IIED), courts permit the employee to collect benefits under the workers' compensation systems only, not under tort law.

Elements to an Agency Relationship

An agency relationship exists if (alleged agent) and (alleged principal) consented to these two things: 1. That (A) would act on behalf of (P); and 2. That (P) would have the right to control (A)'s acts. It does not matter whether (P) actually exercised control over (A), so long as (P) had the right to do so. [(A)'s authority to act on behalf of (P) need not be in writing; it may be shown by the words or conduct of (P). (A)'s consent may be shown by (A)'s words or conduct.] [A person may be an agent of another even though there is no agreement that the agent will be paid.]- Nebraska Civil Jury Instructions

More on Apparent Authority

Apparent authority for which a principal may be liable exists only when the third party's belief is traceable to the principal's manifestation and cannot be established by the agent's acts, declarations, or conduct. Manifestations include explicit statements the principal makes to a third party or statements made by others concerning an actor's authority that reach the third party and the third party can trace to the principal. For apparent authority to exist, the principal must act in a way that induces a reasonable third person to believe that another person has authority to act for him or her. Whether an agent has apparent authority to bind the principal is a factual question determined from all the circumstances of the transaction.

Case: Cove Management v. AFLAC, Inc.986 N.E.2d 1206 (2013)

Apparent authority, by contrast, is such authority as the Principal knowingly permits the agent to assume or which the Principal holds the Agent out as possessing. It is such authority as a reasonably prudent person, exercising diligence and discretion, in view of the Principal's conduct, would naturally suppose the Agent to possess. Where a principal has created the appearance of authority in an agent and another party has reasonably and detrimentally relied upon the agent's authority, the principal cannot deny it. If there is no showing of reasonable and detrimental reliance upon the agent's authority, there can be no apparent authority.

CASE: Yim v. J's Fashion Accessories, Inc., 680 S.E.2d 466 (2009)

Case of Undisclosed Principal An agent who makes a contract without identifying the principal becomes personally liable on the contract. In order to avoid personal liability an Agent is under a duty to disclose the fact of his agency and the identity (i.e. the name) of the Principal. It is not the duty of the third party to discover the identity of the Principal or existence of an agency relationship.

Wrongful Discharge:Ballalatak v. All Iowa Ag. Assn. (Sup. Ct., Iowa, 2010)

Case summary: Ballalatak worked as a security supervisor. Two employees were injured at work. Ballalatak filled out an accident report. The general manager told the men the company would take care of their medical expenses. The men told Ballalatak they were concerned they could not get workers' comp. Ballalatak told the manager he was concerned about that and was fired. He sued, contending he was fired for inquiring about the workers' compensation rights of the injured men. The trial court dismissed; Ballalatak appealed.

National Labor Relations Board v. Jones and Laughlin Steel Corp. (1937)

Congress passed the National Labor Relations Act of 1935, creating the NLRB.Unionized steelworkers at Jones and Laughlin were fired and took their complaint to the NLRB which found that Jones & Laughlin had discriminated against workers based on union membership. Jones and Laughlin sued asserting that Congress exceeded its authority under the Commerce Clause by enacting the NLRA. SCOTUS reversed the 5th Circuit that had ruled in favor of Jones & Laughlin. SCOTUS held that regulation of organized labor disputes had a substantial effect on interstate commerce and therefore Congress had authority to regulated under the Commerce Clause.

1st Amendment Application to Corporations

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Corporate Citizenship:Bank of the United States v. Deveaux (SCOTUS, 1809)

Constitution Art. 3, Sec. 2: Right of Citizens of Different States to Sue in Federal Court: "The judicial Power shall extend to all Cases ... between Citizens of different States"

Workers' Compensation & Employment Status:Long. v. Superior Senior Care (Ct. App., Ark., 2013)—

Decision: Affirmed. The Commission is correct that Long fits the criteria of an independent contractor—factors considered include extent of control, kind of occupation, degree of supervision, skill required, provision of tools and place of work, time employed, payment method, regular business, belief of the parties and the kind of business of the principal.

OSHA Inspections:Stark Excavating v. Perez (7th Cir. 2016)

Decision: Appeals courts must defer to the findings of the Commission and change it only if there is substantial evidence to the contrary. The Commission found the ALJ was too lenient. Schupp knew there was a violation as he knew the rules but ignored them to get the job done faster. The original citation would be enforced.

14-2: Employee Handbooks

Discipline procedures or termination guidelines outlined in an employee handbook may limit employment at will by creating implied contract to limit dismissal for good cause shown.

Agent's Liability to Third Parties and to Principal for Contracts is Determined by the Status of the Principal

Disclosed Principal -3rd Party has notice of P's existence and identity at the time of the transaction. -Zero contractual liability for A

14-1: Terminating an Agency

Duty of care and loyalty continue during and after termination of the agency relationship. Grabbing clients is a typical breach of agent's fiduciary duty. Use of confidential information does Not constitute a fiduciary breach IF information is obtained through non-confidential means or unique personal relationship with the client.

14-2: Employer-Employee

Employee agrees to work on behalf of the employer and be subject to the employer's control or right to control the employee's physical conduct. "The right of control is the chief factor distinguishing an employment relationship from that of an independent contractor." Pettit v. State, 249 Neb. 666, 673-76, 544 N.W.2d 855, 861-62 (1996) The Restatement (Second) of Agency defines the agency relationship differently than it defines the employment relationship. The difference is in the element of control: the principal has the right to control the agent, the employer "has the right to control the physical conduct of the [employee]," the latter definition is the narrower of the two.

Actual Authority: Express or Implied

Express Actual = Express Actual Authority IS the authority that P grants to A. Implied Actual = Implied Actual Authority IS the authority that P intendedA to posses and includes such powers as our practically necessary to carry out the duties actually delegated. Implied Actual Authority is determined by the "totality of the circumstances" based on:1. Whether A reasonably believes P wishes A to have certain authority based on P's prior or present conduct. 2. Whether the nature of A's task requires implied authority in order to carry out the express authority given to A. 3. Whether similar practices previously occurred.

Heart of Atlanta Motel v. United States (1964)

Heart of Atlanta Motel provided "whites only" accommodations and sued the U.S. asserting that Congress exceeded its authority under the Commerce Clause by restricting owners' authority to exclude clientele under Title II of the Civil Rights Act. The Court held that the government could enjoin the motel from discriminating on the basis of race under the Commerce Clause. Since the motel was positioned near Interstates and received most of its business from outside Georgia, an impact on interstate commerce was evident.

Implied Actual Authority compared to Apparent Authority

Implied Actual Authority= Implied Actual Authority results from manifestation of consent between the alleged P and A and not of the appearance to a third party. Apparent Authority= Apparent authority must be invoked by a third party and only when the third party knew and relied on the conduct of P. Principal's action or inaction convey the impression to a third party that an agent has certain powers that he may or may not actually possess. Test for apparent authority is whether it was objectively reasonable for a third party to have such an impression. It is the P's responsibility to communicate to third parties any limitation on A's authority once apparent authority is established. Apparent Authority is based on the customary practice specific to the particular principal (distinguished from inherent agency)

McDonnell Douglas Corp. v. Green (1973)

Importance: Establishes the legal test for determining whether an employer's practice or policy is discriminatory. Facts: Green was a 8 year McDonnell Douglas mechanic and civil rights activist until being laid off in 1964. Green protested against racial discrimination McDonnell Douglas employment policies by blocking the entrance to the plant. Green responded to job ads in 1965 but was not hired. The EEOC found that McDonnell Douglas had discriminated against Green because of his activism but did not find racial discrimination. SCOTUS: Held that a discrimination claim is not limited to charges that the EEOC finds reasonable cause but that the plaintiff bears the burden of proof to show racial discrimination. McDonnell Douglas was not compelled to rehire after Green's deliberate unlawful protests case was remanded to determine if the company's practices were a mere pretext for discrimination.

Inherent Agency Power

Inherent Agency Power is not derived from the authority of the P but from the custom/tradition of a similarly situated A. Therefore, no communication is needed between the P and the 3rd party. Inherent Agency Power exists in three situations: (1)A does something similar to what A is authorized to do but in violation of orders. (2)A acts purely for A's own purposes in entering a transaction which would be authorized if undertaken with a proper fiduciary motive. (3)A is authorized to dispose of goods and departs from the authorized method of disposal. Inherent Agency is market-specific. Apparent Authority is based on the customary practice specific to the

What is prohibited under Title VII

It shall be an unlawful employment practice for an employer - •(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or •(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. - 42 USC 2000e-2.

What is prohibited under Title VII?

It shall be an unlawful employment practice for an employer - •(1)(DISPARATE TREATMENT) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or •(2)(DISPARATE IMPACT)to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. - 42 USC 2000e-2.

Workers' Compensation & Employment Status:Long. v. Superior Senior Care (Ct. App., Ark., 2013)—

Long worked as an in-home nursing assistant. Superior hired her and others as independent contractors to provide in-home services. The company posted needs for assorted assignments; the nurses would volunteer for assignments they were qualified to do. Clients paid Superior; it paid the nurses an agreed upon hourly wage. Long was injured on the job when trying to move a client. Unable to work, she filed for workers' compensation. Superior noted that she was an independent contractor, so it was not responsible for WC. The Workers' Compensation Commission agreed. Long appealed.

More on Agent's Fiduciary Duty of Loyalty

LoyaltyAn agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any harmful act to the principal. Generally, an agent is required to act solely for the benefit of his or her principal in all matters connected with the agency and adhere faithfully to the instructions of the principal. An agent's duty is to act solely for the benefit of the principal in all matters connected with the agency, even at the expense of the agent's own interest. An agent is prohibited from profiting from the agency relationship to the detriment of the principal or having a personal stake that conflicts with the principal's interest in a transaction in which the agent represents the principal.

Katzenbach v. McClung ('64)

McClung owned Ollie's Bar-B-Q in Birmingham, AL which served non-white customers only by take-out. Sued the government to enjoin enforcement of Title II (which Title II allowed U.S. Attorney General Katzenbach to do) against his small restaurant. The federal district court ruled in favor of McClung. The Supreme Court heard the case on direct appeal the same day as Heart of Atlanta Motel. SCOTUS held that "[Congress] had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. Congress prohibited discrimination only in those establishments having a close tie to interstate commerce, i.e.,those, like the McClungs', serving food that has come from out of the State. ... Congress acted well within its power to protect and foster commerce in extending the coverage of Title II only to those restaurants offering to serve interstate travelers or serving food, a substantial portion of which has moved in interstate commerce."

Examples of What Nebraska Courts Have Found to be and not be an Agency Relationship

Not Agency Relationship (usually) = a) landlord - tenant b) manufacturer - distributor

Agent's Liability to Third Parties and to Principal for Contracts is Determined by the Status of the Principal

Partially-Disclosed P -3rd Party has notice of P's existence but not P's identity at the time of the transaction -A is liable (subject to contrary agreement)

OSHA: Penalties

Penalties—When OSHA issues a citation against an employer, the employer may face monetary penalties of up to $7,000 per day per violation. Total fines can be large. Bridgestone/Firestone was fined $7.5 million for willful safety violations that resulted in the death of a worker. Willful violations can result in criminal penalties. Employees may not be punished for participating in an OSHA inspection or for exercising any right guaranteed under the Act. In Whirlpool Corp. v. Marshall, the Supreme Court held that a company could not reprimand employees who refused to work under highly dangerous conditions. Employees must comply with OSHA standards. Employees who ignore OSHA standards may not be able to sue employers for harms they receive. It is, however, the company's duty to enforce these standards at the workplace.

14-3: Principal's Liability

Principal (Employer's) liability for tortious action of an employee depends on whether employee is acting in the scope of their employment. Principal is not generally liable for tortious action of an independent contractor. Negligence by an independent contractor is not imputable to the Principal because the principal has control over the agent while the one who hires an independent contractor does not have control over the acts of the contractor. *Principal cannot create independent contractor relationships merely as a liability shield.

3 forms of agency

Principal / Agent: Agent acts on behalf of the Principal, with a degree of personal discretion. Employer / Independent Contractor: An independent contract is not an employee, and the employer does not control the detail so the independent contractor's performance; the contractor is usually not an agent. Employer / Employee: The employee is one whose physical conduct is controlled by the employer, the employee can also be an agent. * See Exhibit 14.3. Meiners, Page 338.

CASE: Bearden v. Wardley Corp., 72 P.3d 144 (2003)

Principal is liable for monetary damages to third parties caused by fraud of the Agent when: Agent's actual authority creates a duty of care by the Principal to the third party, and Principal is aware of conduct by the Agent but takes no action to correct the Agent's conduct. See also, Deceit or fraud on the part of the agent may be within the scope of the agent's authority despite the fact that the principal did not authorize, concur in, or even know of the deceit or fraud. Draemel v. Rufenacht, Bromagen & Hertz, Inc., 223 Neb. 645, 653-54, 392 N.W.2d 759, 766 (1986).

CASE: Anderson v. Mandalay Corporation, 358 P.3d 242 (2015)

Principal is vicariously liable for employee's intentional torts when an employee's act is reasonably foreseeable which is determined if a reasonably prudent person could have anticipated the conduct and the probability of injury - even when act was outside of the scope of employment.

Duties Of the Agency Parties

Principal, acting in good faith to A, Cooperate with A Compensate A Reimburse A's Expenses Indemnify A's losses Agent, as a fiduciary of the Principal,... Loyalty Obedience & Performance Reasonable Care Accounting Notification / Informing

Collective Bargaining

Protected Activities—Under the NLRA, employees may engage in concerted activities for mutual protection or aid. Concerted activities often involve union organizing efforts. An example of a concerted activity that was protected, but did not involve a union, is NLRB v. Washington Aluminum Co. Workers left because their plant was extremely cold. The workers were fired by the company, which claimed they had to make specific demands before they could walk out of work. The Supreme Court held that the workers were protecting themselves from intolerable working conditions, which constituted a concerted activity, protected by the NLRA. The company could not fire them. •Unprotected Activities—Workers who engage in threats or acts of violence during the course of a concerted activity are not protected by the NLRA, and may be fired or disciplined by their employer. However, workers may not be fired for disloyalty if their actions are protected concerted activities.

Agency by Ratification

Ratification IS the affirmance by a person of a prior act which did not bind him/her but which was done on his/her account. Ratification requires: 1.Acceptance of the result of the act 2.Intent to ratify 3.Full knowledge of all material circumstances

NLRA - Unionization

Representation Elections—A union collects authorization cards requesting an election from 30% or more of employees in a company before a representation election can be requested. The union gives the cards to the NLRB, which determines if an election will take place. Before the election, the union will lobby employees, telling them about the benefits of unionization. Management may, within constraints, lobby employees to reject the union. A union will be selected as the collective bargaining agent of a group of employees if a majority vote for the union. In recent years unions have won fewer than 50% of representation elections. •Union Certification—NLRB agents supervise elections, and the board certifies the results. If more than 50% of employees vote in favor of the union, it is certified as the exclusive bargaining agent for all employees (even those who voted against the union). The union then must be recognized by the employer. Employers or workers may call for new elections to decertify unions. If more than 50% of employees vote to remove the union, it is decertified.

Apparent Authority Created by Estoppel

Requirements for Estoppel: (1)Must show that the Principal's Negligence Caused Reliance (2)Reliance was Reasonable (3)The relying party suffered damages Where a third party seeks to impose liability upon an alleged Principal on a contract made by an alleged Agent, the third party bears the burden of proving the existence of the agency relationship.

1st Amendment: Commercial Speech: Central Hudson Gas & Electric v. Public Service Commission of New York

Restrictions on truthful commercial speech. Commercial speech is afforded a lesser protection than other forms of speech under the 1stAmendment. 4-part test for government restraint on commercial speech. 1.Does the commercial speech concern a lawful activity and is not misleading? 2.Is the governmental interest substantial? 3.Does the regulation directly advance the governmental interest?4.Is the regulation not more extensive than necessary to serve the interest?

Gibbons v. Ogden (1824)

SCOTUS ruled for Gibbons, holding that New York's exclusive grant to Ogden violated the federal licensing act of 1793. In reaching its decision, the Court interpreted the Commerce Clause of the U.S. Constitution for the first time. "Commerce" includes the "intercourse" amongst states - navigable waterways - and "among" means "intermingled with". Establishes Congress' plenary power to regulate interstate commerce.

Minimum Wage Requirements

Since the 1938 passage of the Fair Labor Standards Act, the federal government has required employers pay "covered employees" a certain minimum hourly wage. Federal minimum is $7.25. Employers are also required to pay social security tax (7.65% of gross income), workers' compensation insurance, and unemployment taxes. Over 90% of all workers are covered by the FLSA.

Employment-At-Will

Strong presumption that employers may discharge employees for any reason or no reason at any time and employees are free to quit for any or no reason at any time. Employment at will may be limited by: 1.Express contract 2.Implied contract 3.Covenants of Good Faith and Fair Dealing

14-2: Evaluations

Supervisor evaluations that are inconsistent with actual performance may give rise to wrongful discharge.

Wickard v. Filburn (1942)

The Agriculture Adjustment Act of 1938 (AAA) set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. Filburn sold part of his wheat crop and used the rest for his own consumption. The amount of wheat Filburn produced for his own consumption combined with the amount he sold exceeded the amount he was permitted to produce. Secretary of Agriculture Wickard assessed a penalty against him. Filburn refused to pay, contending that the Act sought to limit local commercial activity and therefore was unconstitutional because it exceeded the scope of Congress's power under the Commerce Clause. Filburn sued seeking to enjoin enforcement of the Act and a declaratory judgment that the wheat marketing provisions of the AAA were unconstitutional for exceeding the scope of Congress's commerce power. The court below, a district court panel of three judges, entered judgment for Filburn and the Supreme Court granted cert.

Additional Forms of Employment Discrimination - Disability Discrimination

The Americans with Disabilities Act of 1990 prohibits discrimination against a qualified person with a disability in the private sector and in state and local governments. •The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business .•A disability is defined as a physical or mental impairment that substantially limits one or more major life activities.

Federal Power Not Enumerated in the Constitution McCulloch v. Maryland (SCOTUS 1819)

The Constitution's Necessary and Proper Clause: Under Article I, Section 8 of the Constitution, Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof".

Dartmouth College v. Woodward (SCOTUS, 1819)

The Contract Clause (Art 1, Section 10, Clause 1) prohibits states from violating contracts with private or public corporations. In a 6-to-1 decision, the Court concluded that the Contract Clause applies to private as well as public corporations. The Court held that the College's corporate charter qualified as a contract between private parties, with which the legislature could not interfere.

Family & Medical Leave (FMLA)

The Family and Medical Leave Act applies to all employers with 50 or more employees and to all government units. •The Act requires employers to offer workers up to 12 weeks of unpaid leave to care for a newborn, a seriously ill child, spouse, or parent, or in the case of the employee's own serious illness. •Health-care benefits remain in effect while workers are on leave. •Upon return, workers must be given their old job or an "equivalent" job in terms of pay, responsibility, and other conditions. •Employers have the right to demand medical certification to verify the need for such leave.

Federal Power Not Enumerated in the Constitution McCulloch v. Maryland (SCOTUS 1819)

The Necessary and Proper Clause & The Supremacy Clause: Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined "necessary" to mean "appropriate and legitimate," covering all methods for furthering objectives covered by the enumerated powers. Marshall also held that while the states retained the power of taxation, the Constitution and the laws made in pursuance thereof are supreme and cannot be controlled by the states.

CASE: France v. Southern Equipment Co., 689 S.E.2d 1 (W.V., 2010)

The Principal of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his subcontractor. If Principal establishes it had no right to control a contractor's work then the contractor is an "independent contractor"

Gibbons v. Ogden (1824)

The case concerned competing claims of rival steamship franchises. The state of New York gave Aaron Ogden an exclusive license to operate steamboat ferries between New Jersey and New York City on the Hudson River. Thomas Gibbons, another steamboat operator, ran two ferries along the same route. Ogden sought an injunction against Gibbons in a New York state court, claiming that the state had given him exclusive rights to operate the route. In response, Gibbons claimed he had the right to operate on the route pursuant to a 1793 act of Congress regulating coastal commerce.

Santa Clara County v. Southern Pacific Railroad Co.(SCOTUS 1886)

The decision implied that equal protection laws provided by the Fourteenth Amendment applied to corporations, but the opinion did not explicitly state this.

WORKERS' COMPENSATION: Objectives

The objectives of workers' compensation include: a)providing reliable, prompt income and benefits to injured workers or their dependents; b)reducing court costs and the time delays from litigation; c)relieving charities from the burden of supporting injured workers; d)reducing fees paid to lawyers and expert witnesses; and e)encouraging employer concerns about safety and rehabilitation by tying premiums to safety records.

14-1: Liability for Contracts

The rights and liabilities of P and A are determined by whether P is disclosed, partially disclosed, or undisclosed AND whether A acted with or without authority. An agent for a disclosed principal is not liable on a contract. Thomas & Thomas Court Reporters v. Switzer, 283 Neb. 19, 23-25, 810 N.W.2d 677, 682-83 (2012) .

The Lochner Era (1890—1937)

The time from 1890 to 1937, in which the United States Supreme Court, using a broad interpretation of due process that protected economic rights, tended to strike down economic regulations of working conditions, wages or hours in favor of laissez-faire economic policy. The namesake case is Lochner v. New York, 198 US 45 (1905), in which the court held invalid a New York statute forbidding employment in a bakery for more than 60 hours per week and 10 hours per day because that regulation interfered with the right of contract between the employer and employee.

1st Amendment: Corporate Political Speech

Three part test for corporate political speech: 1.Is the government restriction of corporate political speech a TPM restriction? 2.Is the restriction a permissible subject-matter regulation? 3.Is the restriction a narrowly tailored means of serving a compelling state interest?

The Civil Rights Act of 1964 (July 2, 1964)

Title 2 of the Civil Rights Act states: "All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin."

14-3: Principal's Liability: Vicarious Liability / Respondeat Superior

Under the doctrine of respondeat superior, an employer is held vicariously liable for the negligent acts of an employee committed while the employee was acting within the scope of the employer's business." Liability is imposed upon a non-negligent defendant for the negligent act of another because of some legal relationship between the two. Employer is responsible as a cost of business for all negligent employee acts that occur if the employee is acting within the scope of employment. Enterprise theory: act in furtherance of employer's interest Control Theory: act with implied authority of employer.

Agent's Liability to Third Parties and to Principal for Contracts is Determined by the Status of the Principal

Undisclosed P - 3rd party has no notice of existence or identity of P. - A is liable (unless A has actual authority) If the agent fails to disclose hisagency and represents himself as a principal, he may be treated as a principal for all purposes, including liability. David A. Baxter and Sons v. Sofio, 182 Neb. 599, 600, 156 N.W.2d 141, 142 (1968).

Determining Scope of Employment

Was it foreseeable within the nature of the business? Was it unusually dangerous conduct?Was it reasonably related to the scope of employment?

FMLA Hasenwinkel v. Mosaic (8th Cir. 2015)

times from 2010 to early 2012, after which she did not return. She had some conflicts with her supervisor about her leaves and believed she was punished for taking leave and was treated poorly in an effort to drive her out, including giving her negative job evaluations. Hasenwinkel sued. The district court held she had no case. She appealed.

Oncale v. Sundowner Offshore Services, Inc. (1998)

• "[t]he critical issue" in a sex discrimination case is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."

MAJOR LABOR RELATIONS ACTS

•"Labor law" generally means the law regarding unions; "employment law" is more expansive, regarding non-union employment issues. The federal labor code is a composite of several statutes that, together, regulate labor-management relations. •These statutes include: •the Norris-LaGuardia Act of 1932, •the Wagner Act of 1935, •the Taft-Hartley Act of 1947, and •the Landrum-Griffin Act of 1959.

Commerce Clause: Hughes v. Oklahoma - 1979

•3 Part Test for Effect of State Regulation on Interstate Commerce: 1.Does the challenged statute regulate even-handedly with only incidental effects on interstate commerce, or discriminate against interstate commerce on its face or in practical effect? 2.Does the statute serve a legitimate local purpose? 3.Do alternative means exist that could promote the local purpose without discriminating against interstate commerce?

Commerce Clause: Wickard v. Filburn -1942

•A unanimous Court upheld the law. In an opinion authored by Justice Robert Houghwout Jackson, the Court found that the Commerce Clause gives Congress the power to regulate prices in the industry, and this law was rationally related to that legitimate goal. The Court reasoned that Congress could regulate activity within a single state under the Commerce Clause, even if each individual activity had a trivial effect on interstate commerce, as long as the intrastate activity viewed in the aggregate would have a substantial effect on interstate commerce. To this extent, the opinion went against prior decisions that had analyzed whether an activity was local, or whether its effects were direct or indirect.

What is prohibited under Title VII and Subsequent Laws

•According to the Federal EEOC, it is illegal to discriminate against someone (applicant or employee) because of that person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. •The law forbids discrimination in every aspect of employment.

How are Discrimination claims pursued?Equal Employment Opportunity Commission

•Administrative agency established under Title VII to oversee employment discrimination claims. •Exhaustion of administrative remedies are required before suing in court. •Within 10 days of the claim filing, the EEOC serves notice of the charge on the employer. Usually discrimination charge must be filed within 180 days of the incident. •Most claims are mediated or investigated by the EEOC.

What is protected by Title VII?

•All persons, regardless of race, color, sex, religion, or national origin must be given equal employment opportunities. These characteristics define protected classes. •An employer that pledges to not discriminate against employees based on race, color, religion, sex, national origin, age, disability or genetic information. Is considered an Equal Opportunity Employer.

Collective Bargaining

•Arbitration Clauses—Grievance arbitration clauses and mechanisms are typically defined in collective bargaining agreements. Disputes concerning agreements reached in collective bargaining are typically resolved by an internal grievance procedure. Unsatisfied parties may ask that an outside labor arbitrator hear a grievance. Most collective bargaining agreements (90%) contain such clauses, which are encouraged by the federal courts because they keep such disputes out of a congested court system. Grievance is an issue under union control, not the control of individual workers.

WORKERS' COMPENSATION: Benefits & Incentives

•Benefits for Workers—Workers who are killed, totally disabled, permanently disabled in part, temporarily disabled in part, and those who otherwise incur medical expense are eligible for workers' compensation benefits. The amount and duration of benefits are limited by state law; two-thirds (2/3) of weekly wages is usually the maximum benefit for long term disabilities .•Incentives for Employers—Workers' compensation provides employers with incentives to invest in facility safety. The insurance premiums employers pay are based on their health and safety records. Companies with good records will pay low premiums. Another incentive to participate in workers' compensation is the relief from possible tort liability that participation affords employers.

Statutory Defenses Under Title VII

•Bona Fide Occupational Qualification —Discriminatory employment practices may be legal if they are based on sex, religion, or national origin (but not race) and if the practice is "reasonably necessary to the normal operation of that particular business." For example, it is legal to discriminate against men in hiring models of women's clothing. Likewise, it may be legal to discriminate against women or men when hiring people in such places as a nursing home. Employers who have traditionally hired only one sex will not be allowed to justify continued discriminatory practices because they would face additional costs or just because customers are accustomed to men or women perform certain tasks.

Statutory Defenses Under Title VII

•Bona Fide Seniority or Merit Systems—A seniority system based on length of employment lawfully can be used to discriminate amongst employees in areas such as the provisions of benefits, or in making termination decisions.

Statutory Defenses Under Title VII

•Business Necessity—Employers may discriminate on the basis of business necessity. The employer may make employment decisions based on the skill and abilities of employees/applicants necessary for the job in question. The qualifications must be related to the ability to do the job. In the case of white collar workers, employment decisions must also meet the business necessity test. Education requirements for professionals are upheld because these workers are generally acknowledged to need certain training.

Collective Bargaining

•COLLECTIVE BARGAINING—The process by which the employer and the union negotiate a contract that sets forth the terms and conditions of employment for a specific period of time. After negotiating a contract, the contract must be administered to insure its terms are met. This on-going administration is part of the collective bargaining process. •Good Faith Bargaining—The NLRA requires parties to collective bargaining to negotiate in good faith. This is a subjective standard that may be difficult to establish. Elements of good faith include: meeting and presenting proposals, explaining bargaining positions, and listening to and considering the proposals of others. The position of the Supreme Court is that, in the absence of bad faith, it is best for the courts to stay out of the bargaining process. An example of bad faith bargaining is in the 1962 case, NLRB v. Katz. An employer unilaterally changed the terms of a labor contract it had with a union; such actions are bad faith and may lead to NLRB censure.

Contractual Agreements that Limit Employment At Will

•Certain employment-related contracts may be invalid and, thereby, restrict the terms of employment at will. Exculpatory agreements that relieve the employer of liability for workplace torts are generally violative of public policy. •Noncompete Agreements, - "contracts between workers and firms that delay employees' ability to work for competing firms" - in states like Nebraska where legal, noncompetes must be limited as to time and place, usually 1-3 years. •Anti-Raiding agreements that limit employees from hiring away fellow employees for another company are also likely to be upheld if they are limited as to time and place.

Collective Bargaining

•Concerted Activities—Concerted activities are actions that help employers or unions back up their positions. Examples include: strikes, lockouts, and other actions that bring economic force to bear on the other party. Certain concerted activities are protected by law because they help parties effectively support bargaining demands. •Strikes and Boycotts—An action by a union that attempts to force others to stop doing business with another employer not directly involved in the primary labor dispute. Unlike primary boycotts (strikes or other concerted action against the employer of the employees for whom the union is the collective bargaining agent), secondary boycotts are strictly limited by the NLRA. •Examples of illegal activities include: striking against, or refusing to handle merchandize of, an employer other than the primary employer; threatening persons engaged in commerce in order to spread the labor dispute beyond the primary employer. The NLRB held that employees of a food manufacturing company could not picket banks in an effort to get them to pressure the food company to settle.

Noncompete Agreements Zambelli Fireworks Mfg. v. Wood (3rd Cir., 2010)

•Decision: Affirmed. •In Pennsylvania, noncompete agreements are enforceable when incident to an employment relationship and are needed to protect the employer. •Restrictions must be reasonable as to time and location. Zambelli has a strong interest in restricting exploitation of specialized knowledge—trade secrets, goodwill, confidential information, specialized training, and unique skills—gained by Wood.

FMLA Hasenwinkel v. Mosaic (8th Cir. 2015)

•Decision: Affirmed. •Hasenwinkel was terminated when she did not return from leave after her FMLA leave had been used up. An employer may discharge a worker who cannot work and has used all leave, so that was not a violation. Her claim of a hostile work environment was not substantiated. She did not get along with coworkers and supervisor, but that was not shown to be more than normal workplace conflict. She must be able to document specific adverse job action related to violation of FMLA rules by her employer.

Collective Bargaining: Teamsters Local Union No. 523 v. NLRB (10th Cir., 2009)

•Decision: Affirmed. •This was clear discrimination against Rammage due to his previous non-union status. That is a violation of the National Labor Relations Act. Rammage may not be demoted due to his previous non-union status.

EEOC v. Dial Corp. (8th Cir., 2006)

•Decision: Affirmed. The strength test was not shown to be reasonably related to job performance and used for business necessity. Firms may use tests that are good predictors of the ability to perform, but this test was not shown to be a good predictor and was discriminatory. Women had lower injury rates than men before the test was imposed.

Wrongful Discharge: Ballalatak v. All Iowa Ag. Assn. (Sup. Ct., Iowa, 2010)

•Decision: Affirmed. To support a claim of wrongful discharge the employee must show: •1) the existence of a clearly defined public policy that protects employee activity; •2) the policy would be jeopardized by the discharge; •3) the employee engaged in protected activity and was fired for doing so; AND •4) there was no overriding business justification for the firing. The law protects those protecting their workers' compensation rights or other protected rights; it does not protect those who become advocates for the rights of others. Contractual Agreements t

Burlington Industries v. Ellerth (S.Ct., 1998)

•Decision: Affirmed. The suit may proceed. Whether the claim is quid pro quo or hostile work environment, the issues are the same. Was there sexual harassment that rose to the level of illegality? The employer may be liable as the master for the acts of its agent, the supervisor of the harassed employee. Liability may arise from negligence or intentional conduct. A key point in whether an employer will be relieved of liability is if it can show that it had in place a policy to deal with discrimination that the employees should have been able to rely upon. If Ellerth failed to take advantage of a trustworthy system within the company, then the employer has a strong defense.

Price Waterhouse v. Hopkins (S. Ct., 1989)

•Decision: The Court noted that Hopkins' employment record was excellent. She was commended many occasions for fine work. However, she had been reprimanded for her aggressive, brusque behavior. The Court found that some members of Price Waterhouse management (all men) reacted negatively to Hopkins as a woman at the meeting to consider her promotion; some men said she was unfeminine, she needed to wear more makeup, and act in a more feminine manner. The company failed to prove that her job performance was the reason for denying her partnership. She successfully showed that sex played an impermissible role in the partnership decision making process. Hopkins won her suit and on remand was granted partnership and $371,000 in back pay

Los Angeles Department of Water and Power v. Manhart (1978)

•Determined that an employer may not use the fact that women, as a group, live longer than men to justify a policy of requiring female employees to make larger contributions to a pension plan in order to receive the same monthly pension benefits when they retire.

Additional Forms of Employment Discrimination - Military Service Discrimination

•Discrimination Based on Military Service—(USERRA) The Uniformed Services Employment and Reemployment Rights Act hold sit illegal to deny employment benefits based on military service.

EEOC v. Dial Corp. (8th Cir., 2006)

•Disparate Impact Case: Workers at Dial did a lot of lifting. The company began to use a strength test for new employees. Before the test, the workforce was about 50-50 men and woman. When the test was put in place, only 15% of people hired were women. One applicant who passed the test and was not hired complained to the EEOC, which investigated. It brought suit on behalf of 54 women who had passed the test and been rejected. The trial judge found disparate impact and awarded back pay. Dial appealed.

Forms of Discrimination

•Disparate Treatment = Plaintiff must prove intentional discrimination on the part of the employer. •Disparate Impact = Plaintiff must prove that the employment practice or procedure adversely affects employment opportunities for members of a protected class. •Does the employer have rules or practices that affect members of a protected group differently from other workers? •Are the rules or practices justified by business necessity, or because the relate to valid job requirements?

Price Waterhouse v. Hopkins (S. Ct., 1989)

•Disparate Treatment: Hopkins was a senior manager at a large accounting firm. She, and 87 men, were being considered for partnership (promotion) in 1982. Her candidacy was put on hold for a year, after which she was denied partnership. She brought suit, alleging employment discrimination under Title VII based on her sex.

Federal Power to Regulate Interstate Commerce Gibbons v. Ogden (SCOTUS 1824)

•Does the Commerce Clause give Congress authority over navigation of interstate waters? •Justice Marshall concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress under the Commerce Clause. As interstate navigation fell under interstate commerce, New York could not interfere with it, and the law was therefore invalid.

WORKERS' COMPENSATION

•Early in the 20th century, states passed workers' compensation laws that require employers to pay premiums to a fund to compensate employees injured on the job. •Payments are set by a compensation schedule. •Benefits are paid regardless of who caused the accident, so they are mandatory no-fault insurance. •State law sets benefits and employers pay the premiums. •Employers are released from possible tort liability as a result of paying these premiums.

Burlington Industries v. Ellerth (S.Ct., 1998)

•Ellerth worked for Burlington for 15 months before she quit. She then sued for sex discrimination, contending that her boss has made sexually suggestive remarks and she took them as a threat to her employment, but there was never an adverse job action. She did not inform anyone at Burlington about the issue prior to the suit. The district court dismissed the suit, the appeals court reversed; Burlington appealed.

Employment Retirement Income Security Act (ERISA)

•Employee Retirement Plans—The Employee Retirement Income Security Act (ERISA) guarantees that the money people place in private retirement plans will be available when they need them. •The Act also promoted the growth of private pension plans. •ERISA covers most employee benefits plans, not just retirement programs. It covers medical and hospital benefits, accident or disability benefits, unemployment benefits, scholarship funds, day-care centers, and deferred income programs, among others.

Collective Bargaining

•Employer Economic Responses —Employers may use certain activities to back up their bargaining positions. For example, employers may lockout employees, refusing to let them work until disputes with their union are settled. If an employer has a bad intent when it uses a lockout, the lockout will be illegal. Employers may not hire new workers during a lockout; lockouts must be defensive in response to a strike, sitdown, or some other activity destructive to the plant.

Commerce Clause: Katzenbach v. McClung - 1964

•Federal laws like the Civil Rights Act of 1964 apply not only to restaurants that serve interstate travelers, but also to restaurants that use food that has traveled in interstate commerce, which must provide fully equal access to African Americans. •In a unanimous decision authored by Justice Clark, the Court held McClung could be barred from discriminating against African Americans under the Civil Rights Act of 1964. The Court reasoned that discrimination in restaurants posed significant burdens on "the interstate flow of food and upon the movement on products generally." Furthermore, discrimination also posed restrictions on blacks who traveled from state to state. The Court concluded that the Civil Rights Act was a rational way to protect interstate commerce because it could be expected to reduce the discrimination that undermined it.

Commerce Clause: Wickard v. Filburn -1942

•Filburn was a small farmer in Ohio who harvested nearly 12 acres of wheat above his allotment under the Agricultural Adjustment Act of 1938. Filburn was penalized under the Act. He argued that the extra wheat that he had produced in violation of the law had been used for his own use and thus had no effect on interstate commerce, since it never had been on the market. In his view, this meant that he had not violated the law because the additional wheat was not subject to regulation under the Commerce Clause. •Did the Act violate the Commerce Clause?

Additional Forms of Employment Discrimination - Genetic Information.

•Genetic Information Discrimination—The Genetic Information Nondiscrimination Act (GINA) makes it illegal to discriminate in employment based on genetic information about a person or members of their family.

Harassment

•Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA). •Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Meritor Savings Bank v. Vinson (1986)

•Held that Title VII's prohibition on sex discrimination also included a prohibition on sexual harassment.

Griggs v. Duke Power Co. (1971)

•Importance: Established precedent for disparate impact claims in employment discrimination. •Facts: Prior to passage of the 1964 Civil Rights Act, Duke Power had discriminated against African Americans by hiring to the lowest paying department of the company and preventing promotion. After passage of the Civil Rights Act, Duke Power instituted a policy requiring passage of an IQ test and attaining a high school diploma in order to transfer out of the lowest paying department. •Ruling: SCOTUS Reversed the 4th Circuit, finding that the aptitude tests and diploma requirements were not substantially related to job performance and that white employees without diplomas had performed well in higher paying departments. Holding: Title VII "proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation."

United Steelworkers v. Weber (1979)

•Importance: Establishes ability for employers to maintain affirmative action policies. •Held that Title VII permitted private sector employers and unions to implement voluntary affirmative action plans to remedy past discrimination (Louisiana)

Phillips v. Martin Marietta (1971)

•Importance: First sex discrimination case decided by SCOTUS .•Ruled that not hiring mothers of preschool-aged children while hiring fathers of preschool-aged children violated Title VII.

West Coast Hotel v. Parrish (1937) The end of the Lochner Era.

•In a 5-to-4 decision written by Justice Charles Evans Hughes, the Court held that the establishment of minimum wages for women was constitutional. Echoing Muller v. Oregon (1908), the majority ruled that the state may use its police power to restrict the individual freedom to contract. The decision overruled Atkinsand marked the Court's departure from the expansive view of the freedom to contract. The decision is generally regarded as having ended the Lochner era, a period in American legal history in which the Supreme Court tended to invalidate legislation aimed at regulating business. •While Justice Hughes wrote the opinion, the stark doctrinal shift resulted from Justice Owen Josephus Roberts changing his perspective on this issue. According to Hughes, President Franklin Roosevelt's reelection in 1936 and the impressive achievements of the New Deal caused Roberts to abandon his affiliation with the Court's conservative justices.

Harris v. Forklift Systems, 510 U.S. 17 (1993)

•Issue: Teresa Harris was rental manager of Forklift Systems in Nashville. The company president barraged here with disparaging and sexually suggestive comments, i.e., "You're a woman, what do you know?" and invited her to go to a motel with him to discuss a pay raise. She finally quit. The lower courts held that a reasonable woman would have been offended, but she could not win because there was no serious psychological injury. with work performance, and if there was physical threats or humiliation involved. •Decision: Reversed for Harris unanimously. No extreme distress need be shown to prevail in sex harassment suits. The Court used the "reasonable person" standard and held that all factors should be considered, including the frequency and severity of harassment, whether it interfered •What constitutes a hostile work environment for Title VII purposes? •Title VII is violated when "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.

Collective Bargaining

•Mandatory Subjects of Bargaining—Parties must bargain in good faith over certain items specified by the NLRA. These items include: wages, insurance plans, vacations, retirement plans, work hours, termination procedures, layoff procedures, grievance procedures, and drug testing, among others. In collective bargaining, either side may insist on its position and back its insistence with a strike or lockout, and not violate the NLRA. In the event of a negotiating stalemate, an arbitrator, or other negotiator, may be called in.

Common law and Statutory Exceptions to At-Will Employment

•Most exceptions to the at-will presumption come from statutory public policy exceptions. •In general, employees may not be terminated at-will for: •refusing to commit an illegal act; •performing a public duty (e.g. jury duty); or •for exercising a public right (e.g. filing for workers' compensation benefits). •Some states also allow a whistle-blower exception: employees who alert authorities about illegal acts committed at the workplace may not be fired or have a cause of action for wrongful termination. •Terminating an employee in violation of a public policy exception to at will employment constitutes the tort of wrongful or retaliatory discharge.

Commerce Clause: Katzenbach v. McClung - 1964

•Ollie McClung argued that his restaurant could not be prohibited from discriminating against African Americans because Congress did not have power under the Commerce Clause to enact the Civil Rights Act of 1964. His restaurant, Ollie's Barbecue, was located on a major road in Birmingham, Alabama and was close to an interstate highway. Half of its food came from outside Alabama, although its suppliers were local. It served a meaningful number of customers from outside the state. •He argued that his business was small and had no impact on interstate commerce, and that he did provide limited services to African Americans. McClung prevailed in federal district court and received an injunction barring the enforcement of the Civil Rights Act against Ollie's Barbecue. •Can the Civil Rights Act of 1964 prohibit discrimination against African Americans by a restaurant?

ERISA Vesting Requirements

•Participants in retirement plans must, by law, receive some benefits after a reasonable length of employment. •Plans must be adequately funded and must be insured against possible failure. •All full-time employees over 25 years of age, with more than one year of work tenure are eligible to participate in employee benefit plans. •Mandatory vesting is established by the Act. Mandatory vesting means that an employee must become the sole owner of his or her retirement proceeds at a certain point in time. This may be after 5 years of employment, after 15 years of employment, or if the age plus the years of service of the employee total 45 or more.

Norris-LaGuardia Act

•Passed in 1932, this was the first major legislation regarding unions. The goal was to provide workers with freedom of association, organization, and designation of representation, in relation to negotiation of terms of employment. •Injunctions Prohibited—The Act forbids courts from issuing injunction in non-violent labor disputes. Strikes, participation in a union and picketing may not be subject to an injunction. This gave unions greater freedom to use economic force as a bargaining chip in negotiations with employers.

Worker Health and Safety:Occupational Safety and Health Act (OSHA)

•Passed in 1970, the OSH Act created OSHA. It requires employers to comply with OSHA standards and to provide a workplace that is free of recognized hazards . •Establishing an OSHA standard is a multi-step process. •The National Institute of Occupational Safety and Health recommend standards. •An OSHA committee reviews recommended standards; they are published in the Federal Register. •Interested parties submit comments. •The Secretary of Labor considers the comments then issues the standard.

NLRB

•Pivotal Role of NLRB—The Supreme Court has noted that the NLRA gives the NLRB substantial discretion; its findings are not to be reversed unless arbitrary, capricious, or manifestly contrary to law; so the NLRB is powerful in labor law issues. •Remedies—When an unfair labor practice has occurred, the NLRB may impose a variety of remedies, including reinstatement of dismissed workers, back wage payment, and an order for the employer to bargain with the union.

Additional Forms of Employment Discrimination - Pregnancy Discrimination

•Pregnancy Discrimination Act. Under the 1978 amendment to Title VII, the Pregnancy Discrimination Act, it is illegal to discriminate on the basis of pregnancy, child birth, or related medical conditions. • It is illegal to deny a woman a job simply because she is, or might become, pregnant. •Employers cannot fire pregnant women and cannot deny them promotions or job assignments because of a pregnancy. Additionally, employers cannot discriminate in the offering of fringe benefits in order to discourage women from working.

To which employers does Title VII apply?

•Private employers with 15 or more employees •Unions •Employment agencies making referrals for employment •Local, State, and Federal Government •Employers who are engaged in interstate commerce but do not employ 15 or more employees for each of 20 or more calendar weeks in the current or preceding calendar year are exempt. •Title VII is not applicable to independent contractors

Statutory Defenses Under Title VII

•Professionally Developed Ability Tests—Tests are lawful if they can be shown to predict the ability of persons taking the test to perform the job for which they are applying. Employers will have to provide statistical validation of the tests, and perhaps expert testimony, if they are challenged as discriminatory.

International Union, UAW v. Johnson Controls, Inc.(1991)

•Ruled that barring women of childbearing age from certain jobs due to potential harm to unborn children constituted sex discrimination under Title VII

Hazelwood School District v. United States (1977)

•Ruled that statistical evidence comparing the racial composition of an employer's workforce with that of the relevant labor market could substantiate an initial case of discrimination.

Johnson v. Transportation Agency, Santa Clara County (1987)

•Ruled voluntary affirmative action programs for women in fields where they had previously been excluded were constitutional under certain circumstances.

Federal Laws Expanding Protected Classes

•Several laws have been passed since the Civil Rights Act of 1964 which further expand the characteristics that are protected from discrimination in an employment setting. •The Age Discrimination in Employment Act of 1967 (ADEA) •The Pregnancy Discrimination Act of 1978 (Amendment to Title VII) •Title I of the Americans with Disabilities Act of 1990 (ADA) •The Uniform Services Employment and Reemployment Rights Act (USERRA) •The Genetic Information Nondiscrimination Act of 2008 (GINA)

Federal Laws Expanding Protected Classes

Dodge v. Ford Motor Co. (Mich. 1919)

•Shareholders, Dodge et al., brought an action against Ford Motor Company, to force Defendant to pay a more substantial dividend, and to change questionable business decisions by Ford. •Holding. The purpose of a corporation is to make a profit for the shareholders, but a court will not interfere with decisions that come under the business judgment of directors.

Occupational Licensure and Regulation

•States control the entry into many occupations through means of regulation and licensing. Under these regimes, people who wish to enter a regulated profession must apply for permission to operate. Typically, a showing of some professional competence and payment of a large entrance fee will be required. These regulations are justified by saying that the restrictions imposed raise the quality of the service provided. •Regulation Set by State Law—Most regulated occupations are controlled by states. Most states require doctors, lawyers, dentists, and veterinarians to receive a license or certificate from the state before they can practice. States regulate a vast array of professions, from dog groomers to building contractors (or equine massage practitioners). A state commission usually establishes what criteria a person must meet to be licensed.

NLRB

•THE NATIONAL LABOR RELATIONS BOARD—The Board administers the NLRA. There are five Board members appointed by the President, a General Counsel, administrative law judges, and various regional personnel. The NLRB has jurisdiction over labor disputes that affect interstate commerce. •Local businesses are exempted, as are public sector employees, managers, independent contractors, railroad and airline employees, domestic servants, and agricultural employees, although many are covered by other, similar, statutes, such as the Railway Labor Act.

Collective Bargaining: Teamsters Local Union No. 523 v. NLRB (10th Cir., 2009)

•Teamsters Local Union No. 523 v. NLRB (10th Cir., 2009)—Interstate Brands makes and distributes bakery products. The employer consolidated a mix of distribution systems into one, which meant that the union would now represent all workers—some parts of the distribution system were non-union previously. Rammage had worked for 15 years before the consolidation. The union put him at the bottom of the seniority list, giving preference to union members. Rammage was "endtailed" which was a demotion—inferior routes with lower pay. He complained to the NLRB about the union action. The NLRB held for him. The union appealed.

Additional Forms of Employment Discrimination - Age Discrimination

•The 1967 Age Discrimination in Employment Act prohibits employment discrimination against people age 40 and older. •The Act applies to all employers with 20 or more employees. In terms of prohibitions, exceptions, and remedies the Act is similar to Title VII. •Courts use the McDonnell-Douglas test to determine whether or not an ADEA violation has occurred. •Examples of age discrimination include: forced retirement due to age; advertising for "young, dynamic" employees; making promotion decisions based on age; and, cutting health benefits to older workers because they are eligible for Medicare.

1964 Civil Rights Act Title VII: Equal Employment Opportunity

•The Civil Rights Act of 1964 contains eleven segments or Titles. •"The Act was most comprehensive, undertaking to prevent, through peaceful and voluntary settlement, discrimination in voting as well as in places of accommodation and public facilities, federally secured programs, and in employment." - Heart of Atlanta Motel v. U.S. •Title VII outlawed employment discrimination by businesses affecting commerce with at least fifteen employees on the basis of race, color, religion, sex, or national origin and created the Equal Employment Opportunity Commission (EEOC).

Labor Management Reporting & Disclosure Act/ The Landrum-Griffin Act of 1959

•The Landrum-Griffin Act of 1959—Known as the Labor-Management Reporting and Disclosure Act (LMRDA), this Act provides for more detailed regulation of the internal affair of unions, to help protect union members from improper actions by union leaders. •Monitoring Leadership—Unions must provide reports of financial status to their members detailing how union dues are spent. Penalties were established to discourage employer wrongdoing, such as bribing union officials. •Union Member Bill of Rights— Landrum-Griffin includes a union member's Bill of Rights for more democratic procedures in union operations, for nominations and elections of officers, and participation in union business.

Labor Management Relations Act /The "Taft-Hartley Act"of 1947

•The Taft-Hartley Act of 1947—Known as the Labor-Management Relations Act, this Act represents a shift in federal policy from active encouragement of unionization to a greater regulation of unionization. •The Act specifies certain union activity that may be characterized as unfair labor practices: •coercion of employees, •refusing to bargain in good faith, •secondary boycotts, •charging excessive union dues, and •featherbedding (charging employers for work not performed) •The Act allows states to pass "right-to-work" laws.

National Labor Relations Act (NLRA) / The "Wagner Act" of 1935

•The Wagner Act of 1935—Known as the Natl. Labor Relations Act (NLRA), the goal was to provide employees with the right to organize, form and join unions, bargain collectively through these unions, and engage in concerted activities to support their bargaining positions. •The Act created the National Labor Relations Board (NLRB) to monitor unfair labor practices. Unfair labor practices are acts that impair the goals of the Act. Examples include: employer interference with those rights guaranteed employees under the Act, employer-formed unions, and discrimination by employers based on union membership or activity. •Constitutionality of the Act was the subject of the Jones & Laughlin Steel Supreme Court decision that expanded the scope of the Commerce Clause.

Collective Bargaining

•The general rules of collective bargaining include: •1) Both parties must bargain in good faith; they may not refuse to negotiate. •2) The time and place for bargaining must be reasonable. •3) Evidence of bargaining is asking substantive questions and carrying on a dialogue. •4) Employers must make proposals. •5) Employers must substantiate claims that wage demands cannot be met due to financial problems. •6) Employers may not insist on bargaining over internal union discipline or to require a secret ballot by union members to consider the company's offer. •7) Until an impasse is reached, the expired contract remains in force; changes may not be made. •8) When a deal is reached, it is an unfair labor practice to refuse to sign the agreement.

Unionization: NLRA

•UNIONIZATION—The NLRA protects workers who wish to unionize. The Board determines when workers wish to be represented by a union. The Board also promulgates rules governing unions and employers' behavior, so that the rights of employees to self-organization can be exercised effectively. •Unionization Process—Unionization begins when interested workers contact a union for assistance, or when a union contacts workers to determine if there is interest in unionization. If interest exists, the union organizes a drive to rally support and educate workers about the function of a union.

West Coast Hotel v. Parrish (1937) "The Switch in Time that Saved Nine"

•Under Washington state law, the Industrial Welfare Committee and Supervisor of Women in Industry set a minimum wage of $14.50 for each work week of 48 hours. Elsie Parrish, an employee of the West Coast Hotel Company, received an amount less than this wage. Parrish brought a suit to recover the difference between the wages paid to her and the minimum wage fixed by state law. In ruling for the hotel, the lower court relied on Adkins v. Children's Hospital (1923), in which the Court struck down a minimum wage law for working women. •Does a minimum wage law for women violate the Due Process Clause of the Fifth Amendment, as applied to the states by the Fourteenth Amendment?

NLRB

•Unfair Labor Practice Complaints—The NLRB handles over 50,000 cases a year, most involving alleged unfair labor practices. Most charges are against employers. Cases are initiated by private parties (not the government). Initially, charges are investigated through regional offices. If an allegation has merit, a regional director files a complaint, which will be heard by an administrative law judge. Most allegations are dismissed or settled. Most complaints that go forward are settled in the pre-hearing stage. •Hearing Complaints—When an ALJ hears complaints, he or she issues a decision and order. The order sets out the appropriate remedy or recommends the case be dismissed. An unsatisfied party may file an exception to the decision. Exceptions are heard by a panel of three NLRB members, or by all five members in important cases. No evidence or witnesses are presented, so exceptions are treated as cases are treated by appellate courts. Objections to board decisions are taken to the U.S. Court of Appeals. On rare occasions a case may be reviewed by the Supreme Court.

OSHA: Inspections

•When OSHA conducts workplace inspections, it must do so with an administrative warrant which eliminates 4th Amendment concern. •When OSHA conducts an inspection, it looks at company health and safety records, interviews employees, and physically walks around the facility. •Company representatives may accompany the OSHA inspector. Companies may challenge citations they receive. The matter goes to an ALJ - Administrative Law Judge. •The Occupational Safety and Health Review Commission reviews challenges to ALJ decisions. Appeals may be taken to the federal courts of appeal.

Statutory Defenses Under Title VII

•When an employee has presented a rebuttable presumption of discrimination, the employer must provide legitimate, nondiscriminatory reasons for the situation. Employers charged with employment discrimination have several defenses: 1.business necessity, 2.use of professionally-developed ability tests, 3.use of bona fide seniority or merit systems, and 4.bona fide occupational qualifications.

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