BULE 302 final chapter 16-18

differential treatment?

Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job. Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.

Discrimination Based on Religion

Employers must "reasonably accommodate" the "sincerely held" religious practices of its employees, unless to do so would cause undue hardship to employer's business.

The primary income security laws are....?

Social Security and Welfare Medicare Private Pension Plans Employee Retirement Income Security Act (ERISA) gives employee a vested right to receive pension benefits at a future date when she stops working. Unemployment Compensation

exception based on contract theory?

Some courts have held that an implied contract exists between employee and employer (including oral contracts) and termination may give ground for wrongful discharge.

State Workers' Compensation

State laws established procedures for compensating workers injured on the job. This reduces employer liability to employees for workplace injuries, and provide a measure of assurance that workplace injuries will be compensated, regardless of the solvency of the employer. There must be a employment relationship, the injury must be accidental and occur on the job, they must notify the employer within 30 days, and file claim with state agency within 60 days.

Types of Monitoring?

Lie Detector Tests, Drug Testing, Genetic Testing, and Screening Procedures.

Today employment law is heavily regulated by...

state and federal statutes.

unintentional discrimination

"Disparate Impact" Discrimination. This is a form of employment discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect. Basically, the employers practices and procedures had an unintended discriminatory impact on a protected class.

Intentional discrimination

"Disparate-Treatment" Discrimination. This is a form of employment discrimination resulting when an employer intentionally discriminates against employees who are members of protected class. Applicant must prove: She is member of a protected class; she applied for the position, was qualified and rejected for job for discriminatory reasons; and then the employer continued to seek applicants. This creates a Prima Facie Case.

Online Harassment

Employees can create hostile work environment using chat, email to spread racial and sexual jokes and slurs. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers.

The principle has what rights regarding the agent?

1. Principals use agents to be able to conduct multiple business operations simultaneously in various locations. 2. The principal has the right to control the agent in matters entrusted to the agent.

Two types of sex discrimination?

1.Differential treatment 2. Sexual harassment: -Hostile Work Environment -Quid Pro Quo

"employment at will" common law doctrine was?

A common law doctrine of "employment at will" is where either employer or employee could terminate the relationship at any time, for any reason.

Faragher v. City of Boca Raton (1998) created what supreme court guideline?

Employer (city) could be liable for supervisor's harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees.

principles liability towards torts?

A principal who authorize an agent to commit a tortious act may be liable

Seniority Systems defense

A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer. If an employer has no members of protected class in upper management, but no intent to discriminate is present and promotions are distributed fairly, a strong defense is present. A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws

according ADA, what is a disability?

ADA defines disability as: Physical or mental impairment that substantially limits one or more of major life activities; or A record of such impairment; or Being regarded as having such an impairment. Determination is decided on a case-by-case basis

Affirmative Action

Affirmative action programs go one step beyond non-discrimination: they are designed to "make up" for past patterns of discrimination by giving preferential treatment to protected classes.

Agency by Operation of Law

Agency based on social duty that is formed in certain situations when the Agent is unable to contact the Principal. For example for the necessaries for a family or extreme emergencies. Example: medical power of attorney when they are unable to make their own medical decisions due to health.

Constructive Discharge

Employer allows working conditions so intolerable that reasonable person would feel compelled to quit.

Termination of Agency Relationship

Agency can be terminated by Action of the Parties (lapse of time, purpose was achieved, occurrence of a specific event, mutual agreement, etc) or operation of the law (death or insanity, impossibility, war, bankruptcy)

Agency Relationships

Agency=Principal and Agent. Agency is the most common and most important legal relationship.

once relationship is terminated....

Agent has no actual authority to bind the Principal, but may have apparent authority to bind Principal.

agent's liability towards torts?

Agent is liable to 3rd party for his own torts. For example harm resulting from negligence or recklessness

Ratification

Agent must act on behalf of Principal. Principal must affirm entire deal. Principal must affirm before 3rd party withdraws from transaction. Principal and 3rd party must have legal capacity to contract when Agent made the deal. Principals must know all the material facts involved in the transaction.

Sexual Harassment

Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII's prohibition against sex discrimination to include a prohibition against sexual harassment. There are currently two forms of recognized sexual harassment: Quid Pro Quo and Hostile Environment.

Agency by Agreement

An agreement that the agent will act for the principal that is formed through an expressed consent (oral or written contract) or implied by conduct.

Doctrine of Respondeat Superior

An employer is liable for harm caused (negligently or intentionally) to a 3rd party by an employee acting within the scope of employment, without regard to the fault of the employer

Exceptions based on Public Policy?

An employer may not fire a worker for reasons that violate a public policy of the jurisdiction. Whistleblowing occurs when an employee tells a supervisor or the press that the employer is engaged in some unsafe or illegal activity. Protection under federal and state law. Whistleblower Protection Act.

screening procedures

Application question must have some reasonable connection to the job sought.

Respondeat Superior

Applies only to Employer-Employee relationships and who is liable.

Discrimination Based on Age?

Applies to employers with 20+ employees. The Age Discrimination in Employment Act (ADEA) of 1967 protects individuals over the age of 40 from workplace discrimination that favors younger workers.

4 basic defenses to Employment Discrimination??

Bona fide occupational qualification (BFAQ), Business necessity, Seniority Systems and After-acquired evidence of employee misconduct

how can you create "express" authority?

Can be oral or written in a contract

Retaliation by Employer?

Charges of harassment by supervisors sometimes result in retaliation against the complaining employee. Title VII includes an "anti-retaliatory" provision.

employers defense to firing older employees?

Companies typically defend based on employee's inability to perform the work, or the job was eliminated.

Principal's duties to the Agent?

Compensation: payment (Express or Implied). Reimbursement and Indemnification. Cooperation. Provide safe working conditions.

Laws Protecting Employee Privacy Rights?

Constitution for government employees Tort law ECPA Privacy and Email Systems {Smyth v. Pillsbury}

Harassment by Co-Workers and Nonemployees

Employer generally liable only if employer knew or should have known and failed to take action. Employee notice to supervisor is notice to Employer under agency law. Employers may also be liable for harassment by non-employees. Same-sex harassment also violates Title VII.

when is employer liability for torts?

Employer is liable for Employee's acts which Employer knew or should have known the Employee had a propensity to commit.

Wage-Hour Laws

Davis-Bacon Act, Walsh-Healey Act, Fair Labor Standards Act (FLSA)

Principal may be liable for agent's misrepresentation to third party when....

Depending on whether the agent has apparent or actual authority, and Whether they were made within the scope of the agent's authority.

sample questions on how to determine employee status?

Does the Employer exercise a great degree of control over the details of the work? Is the worker engaged in an occupation or business distinct from Employer? Is the work usually done under Employer's supervision? Does Employer provide the tools? Has the worker been employed a long time? Is the worker paid at the end of the job? Is there a great degree of skill required?

Plaintiff must first exhaust administrative relief with _______.

EEOC

Enforcement of Title VII by?

EEOC which is the equal employment opportunity commission. A victim must file a claim with EEOC first, the EEOC will investigate and seek voluntary settlement. If no settlement is reached, the EEOC can sue employer or victim can file a lawsuit.

Liability for Agent's Crimes?

General Rule: Agent is liable and the Principal is not. That is unless the principal authorized or participated in crime.

Liability for Independent Contractor's Torts?

General rule: Employer is not liable for acts of independent contractors because Employer no right to control. so independent contractors are liable for their own torts. ONLY exception is when there is hazardous activities

Genetic Testing

Genetic Information Nondiscrimination Act (GINA) makes it illegal to discriminate against employees or applicants because of genetic information.

"Equal Dignity Rule."

If law requires written contract, Agent's authority must be in writing. Failure to comply with the rule renders contract voidable. Exceptions: Officer acting for Corporation. Agent acts in Principal's presence.

Hostile Work Environment

Hostile environment occurs when workplace is "permeated" with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim's employment. The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

disclosed principal

If a principal's identity is known to a third party when an agent makes a contract, the principal is liable. The agent is NOT liable.

partially disclosed princpal

If a principal's identity is not known to a third party when an agent makes a contract but the 3rd party knows the agent is acting for the principal, the principal is liable. The agent is ALSO liable.

what is "Reasonable Accommodation"?

If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. Examples: wheelchair ramps, flexible working hours, improved training materials.

Same Gender Harassment

In 1998, the U.S. Supreme Court ruled that same sex harassment was actionable under Title VII ( see Oncale v. Sundowner Offshore Services, Inc.). Can be difficult to show the harassment is "based on sex." Title VII does not prohibit discrimination based on "sexual orientation" although many companies' policies do address that.

Implied Authority

Inferred or conferred by customs, agent's superior position to the principal, or what is reasonably necessary to carry out the prior expressed authority. All comes down to what the Agent reasonably thinks the Principal means.

Gratz v. Bollinger (2003) created what supreme court decision?

Mechanical formula giving applicants points violated equal protection.

how does companies monitor employees?

More than 2/3 employers use some sort of electronic monitoring of employees.

drug testing

Most government employees are subject to testing and the rights of private employees vary from state to state. Private company drug testing is permitted but limited by state and local governments

Proving constructive discharge?

Proving constructive discharge? Objective proof of intolerable working conditions. Courts usually require causation by employer.

Agent's Duties to the Principal?

Performance: with reasonable diligence and skill. Notification: must notify of all matters concerning principal Loyalty: must act solely for the benefit of the principal. with no conflict of interest. Obedience: must follow all lawful instructions of the principal Accounting: must keep and make available to the principal an account of everything

Agency by Estoppel

Principal causes a third person to believe that another person is the Principal's Agent, and the third person acts to her detriment in reasonable reliance on that belief.

two types of agent authority?

Principal is liable for acts entered into by Agent when she gives Agent either Actual or Apparent authority

Apparent Implied Authority

Principal is liable when she gives third parties the impression that agent has authority.

Apparent Authority and Estoppel

Principal, by either word or act, causes 3rd party to reasonably believe that Agent has authority to act for Principal. If 3rd party changes legal position by relying on Principal's representations, Principal is estopped from denying Agent had authority to contract.

Liability for Agent's Intentional Torts?

Principal= liable for intentional torts if committed within scope of employment. Principal is also liable and responsible for an agent's misrepresentation made within the scope of the agent's authority

classifications of contracts

Principles are classified as: 1. disclosed 2. partially disclosed 3. undisclosed

lie detector tests

Prohibited, except under the ongoing investigation exception.

Perception and Association Discrimination?

Prohibits employment discrimination based on perception of disability Prohibits employment discrimination based on association with a person with a disability

Quid Pro Quo Harassment

Quid Pro Quo harassment involves the demands for sexual favors by supervisors from a subordinate, in exchange for some workplace benefit. Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees. Must be a "tangible employment action" for liability.

Grutter v. Bollinger (2003) created what supreme court decision?

Race or ethnicity can be a flexible 'plus' factor in admissions.

Parents Involved in Community Schools v. Seattle School District (2007) created what supreme court decision?

Racial classifications not shown to be necessary to achieve stated goal of racial diversity.

what remedies under Title VII can employees receive?

Reinstatement, Back Pay, Retroactive Promotions, or Damages

Discrimination Based on Disability

The Americans with Disability Act (ADA) requires employers to offer reasonable accommodation to employees or applicants with a "disability" who are otherwise qualified for the job they hold or seek. The duty of reasonable accommodation ends at the point at where it becomes an undue hardship to the employer and the business to accommodate the disable employee.

COBRA does what????

The Consolidated Omnibus Budget Reconciliation Act. It prohibits the elimination of worker's medical, optical or dental insurance coverage on the voluntary of involuntary termination of reduction in hours of the worker's employment. They must have the option to continue their coverage at their own expense

Family Medical Leave Act

The FMLA requires employers with over 50 employees to provide at least 12 weeks of unpaid leave to employees who need to care for a spouse, child, or parent suffering with a serious medical condition or for their own serious medical condition. The employee cannot be terminated for taking leave under the policy, and has the right to restoration to the same or a similar position upon return to work. Protects Employee's Job and Health Benefits. Applies to Both Public and Private-Sector Employers.

Bona Fide Occupational Qualification defense

The bona fide occupational qualification (BFOQ) defense requires an employer to show that an particular skill is necessary for nature or essence of the business (legitimate conduct of the business). The BFOQ defense is used in cases of disparate treatment discrimination.

Business Necessity defense

The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the performance of a particular job. Business necessity is a defense to disparate impact discrimination.

The Occupational Safety and Health Act. (OSHA).

The fundamental federal law aimed toward safety in the workplace. provides for workspace safety standards with recording keeping, reporting, notice, and inspection requirements. Enforcement is by OSHA, NIOSH, and the OSHRC.

Agency by Ratification

The principal (either by act or by oral agreement) ratifies conduct of a person who is not in fact an agent. This forms an agency relationship by ratification.

Employers have a defense if....

They took "reasonable care to prevent and correct promptly any sexually harassing behavior" by establishing and distributing effective harassment policies and procedures. That the employee suing for harassment failed to follow these policies and procedures.

The most important federal anti-discrimination laws are:

Title VII of the Civil Rights Act of 1964. The Age Discrimination in Employment Act. The Equal Pay Act. The Americans with Disabilities Act.

Title VII of the Civil Rights Act

Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. "Sex" now includes pregnancy. In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee's religious practices. Enforcement of Title VII by EEOC

Discrimination Based on Race, Color, and National Origin

Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin. Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.

Discrimination Based on Gender

Title VII prohibits sex discrimination in the work place. by gender rolls Pregnancy Discrimination Pay Discrimination Equal Pay Act (amendment to FLSA) Lily Ledbetter Fair Pay Act amended Title VII

Procedures Under the ADA

To prevail on a claim under ADA, plaintiff must show she: 1. Has a "disability." 2. Is otherwise qualified for the employment in question 3.and that she was excluded from employment solely because of the disability.

Unauthorized Acts

Unauthorized acts are outside of Agent's express, implied, or apparent authority. Agent is personally liable and Principal is NOT liable. EXCEPT: if the 3rd party knew the agent did not have authority.

remedies for violting FMLA?

Unpaid salary, lost benefits, job reinstatement and promotion.

Exception based on Tort Theory?

When discharge may give rise to a tort action. This includes abusive discharge procedures. Reliance on false promises.

what court considers for determining scope of employment?

Whether Employee's act was authorized by Employer. The time place and purpose of act (factually based). Whether act was commonly performed by Employees. Whether act advanced Employer's interests. Whether Employer furnished the instrumentality (tools). Whether Employer had reason to know Employee would do the act. Whether the act involved a serious crime.

WARN ACT

Worker Adjustment and Retraining Notification Act: Employers with 100+ employees implementing a mass layoff or plant closing must give 60 days advance notice to any affected employees or union members plus state and local government. Employer can be fined $500 fine for each day of violation

Burlington Industries v. Ellerth (1998) created what supreme court guideline?

a company is liable for harassment even though the employee suffered no adverse job consequences.

3 exceptions to employment at will?

contract theory, tort theory, or public policy

Fair Labor Standards Act (FLSA)

covers all employees and regulates: child labor, minimum wage requirements, and overtime

are drug users protected as well?

former drug users are protected, but NOT current drug users

After-Acquired Evidence defense

evidence of an employee's prior misconduct acquired after a lawsuit is filed may limit damages but is not otherwise a defense.

undisclosed principal

if the principal's identity is not known to a 3rd party when an agent makes a contract, the principal AND the agent are liable.

how to form an agency relationship?

it is a consensual agreement. No consideration is required. Principal needs contractual capacity, but agent does not. Anyone can be an agent. Agency can be made for any legal purpose

Davis-Bacon Act

requires "prevailing wages" for employees for some government contractors.

Walsh-Healey Act

the beginning of minimum wages. Requires minimum wage and overtime for employees of some government contractors

is Health Insurance a reasonable accommodation?

workers with disabilities must have equal access to health care given other employees. (But an employer can put a cap on payments.)