BUS Law exam 2

How are Agency Relationships formed?

1. By Agreement 2. By Ratification (agree after the fact) 3. By Estoppel (to stop or prevent) 4. By Operation of Law (unimportant)

3 Important things outlined in Workers' Comp. Laws

1. Employers must be participant 2. Employees must be acting in the scope of their employment at the time of their injury 3. Employee must give timely notice of work-related injuries

Assumption of Risk

1. Knowledge of the risk 2. Voluntary assumption of the risk (applicable when you get hurt in a way that is not normal to the circumstance)

Fraudulent Misrepresentation

1. Lying about a material fact or piece of information 2. Someone relied on that false statement was harmed

Shifting Burden of Proof

1. Plaintiff must make prima facie showing of discrimination 2. Defendant must articulate Non-Discriminatory Reason 3. Plaintiff must show that Defendant's NDR is mere "pretext" to cover up

Wrongful Interference with a Contractual Relationship (business tort)

1. Valid enforceable contract between 2 parties 2. 3rd party must know contract exists 3. 3rd party intentionally induces one party to breach contract

Unintentional Torts (Negligence) must include elements of:

1. duty 2. breach 3. causation 4. damages

Employment At Will

A common law doctrine either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.

Protected Class

A group of persons protected by specific laws for specific characteristics

Puffery

A salesperson's exaggerated claims concerning the quality of goods (no lies, just sales)

Business Necessity

A work-related practice that is necessary to the safe and efficient operation of an organization

ADEA

Age Discrimination in Employment Act

ADA

Americans with Disabilities Act

Special POA

An agent has express authority over specifically outlined acts

Who is exempt from overtime pay?

An employee with superior authority (hire/fire) or salaries over $36,000

Harassment by Supervisors

An employer may be liable for a supervisor's sexual harassment whether or not the employer knows

Dram Shop Acts

Bar owner or bartender may be held liable for injuries caused by a person who became intoxicated while drinking at the bar

Why would an Employer be liable for a supervisor's harassment?

Because it is an agency relationship

If the principal authorizes an agent to commit a tort who is liable?

Both the principal and agent are liable

Principal

Can control an agent's conduct

FLSA deals with what?

Child Labor Laws and minimum wage

Indemnify

Compensate for loss, damage, or injury; reimburse

Duties of Principal to Agent

Compensation, indemnification, cooperation, safe working conditions

3 Exceptions to Employment at Will Doctrine

Contract theory, tort theory, public policy

Remedies under Title VII

Damages, reinstatement, backpay

Actual Malice (defamation)

Defendant knows the statement is false, or acted with reckless regard for the truth (didn't bother to fact check)

Good Samaritan Statute

Defense for a person who tries to help a person in need but is unable to (so long as they don't leave the person worse off)

False Imprisonment (intentional tort)

Depriving someone of their free will physically, mentally, or economically

What are Punitive Damages?

Designed to punish the tortfeasor for REALLY bad behavior (gross negligence) and deter others from doing the same

Detour v. Frolic

Detour is slight deviation, frolic is a greater deviation

What is the Reasonable Person Standard?

Did the defendant act reasonably given the situation?

Contract Theory

Employee alleges there is an implied contract of employment based on the employer's words and actions

Whistleblowing

Employee exposing an employer's wrongdoing to outsiders, such as the media or government regulatory agencies

Key Employees

Employees whose experience and skills are critical to the success of a business

Where can there be an Agency Relationship?

Employer and Employee as well as outside relationships (real estate agent)

Doctrine of Respondeat Superior

Employer is vicariously liable for negligent torts committed within the agent's "scope of employment"

Electronic Communications Privacy Act

Employer must notify employees that they have "no reasonable expectation of privacy" (they can see your browsing activity)

Title VII and Religion

Employers must make reasonable accommodation for a worker's religious beliefs unless the request would cause undue hardship for the business

EEOC

Equal Employment Opportunity Commission

Powers of Attorney (POA)

Example of express authority

FLSA

Fair Labor Standards Act

FMLA

Family and Medical Leave Act

What does the EEOC do?

Federal Administrative Agency that enforces the federal anti discrimination statute

What is WARN?

Federal Statute that requires an employer planning to do a mass lay off (1/3 all employees) must notice to workers, unions, and state and local government authorities

Trespass to Land (intentional tort)

Going onto someone's land without permission

Affirmative Action

Governmental program designed to remedy decades of governmental discrimination

Social Host Liability

Hosts are liable for guests who get intoxicated and hurt themselves; your house, your responsibility, even when you're not home

After-Acquired Evidence

If an employer is sued they are allowed to bring in negative evidence against

What is the exception to offering accommodations?

If doing so would cause an undue hardship

Contributory Negligence

If the Plaintiff is found even 1% responsible for their own injury they get nothing

Harassment by Co-Workers or Others

If the supervisor is aware of the sexual harassment and does not take action they may be held liable

Unemployment

If you have employees, you must have unemployment insurance (employers pay into the federal system)

Assault (intentional tort)

Immediate apprehension of unwanted contact (the feeling of possible contact, fear is not required)

Hostile Environment

In order to be actionable Defendant's behavior must be severe and/or pervasive that it alters the conditions of employment

Intentional Infliction of Emotional Distress (intentional tort)

In order to be actionable, the act must be so extreme and outrageous that it exceeds the bounds of decency expected by the community

Publication Requirement (defamation)

In order to be actionable, there must be a publication of the false statement; 3rd party heard or read statement

Defamation of a Public Figure

In order to win a defamation lawsuit, must prove "actual malice"

What are intentional torts?

Intention to commit an act, NOT to cause harm, but it does cause harm

What are the two types of Torts?

Intentional and negligence

Disparate Treatment

Intentional discrimination

What does ADA say?

It is a violation to discriminate against someone who has a real or perceived disability

If the agent is notified of something what is assumed?

It is assumed that the principal knows about the issue, even if they haven't been told yet

Scope of Agent's Authority - Actual Authority

It is express, written clearly what the agent may do, and implied, doing what is necessary to carry out the express authority.

Seniority Systems

Last In First Out

Tort Law

Law that deals with harm to a person or a person's property.

What is the duty of landowners?

Maintain premises in a reasonable safe condition for all who enter, including trespassers; warn of any known hazards or make safe

What is the restriction of FLSA dealing with hazardous work?

Minors may not work in hazardous environments (the exemption is family owned businesses so long as the family owns the business)

Title VII

Most prolific anti discrimination statutory law; 1964 Civil Rights which applies at all levels of employment (from first paycheck to last)

What must something be in order to be liable?

Must be foreseeable (texting while driving)

Bona Fide Occupational Qualification

Necessary qualification for performing a job usually for gender or religion (priest at a church; woman at VS)

Disparate Impact

No intent to discriminate but there is usually a policy which has the affect of discrimination

What are General Damages?

No solid number; compensation for pain and suffering

If agent is not authorized to act is the principal still bound to the obligation?

No the principal is not bound

OSHA

Occupational Safety and Health Act

Purported Agent

One who claims to be an agent

If the principal commits a tort who is liable?

Only the principal

Duties of Agent to Principal

Performance, notification, loyalty, obedience, accounting

Is the principal vicariously liable for an agent's detour or frolic?

Principal is liable for a detour but NOT a frolic

Scope of Agent's Authority - Express Authority

Principal says/does something that leads a 3rd party to believe a purported agent has more authority than they do.

What is the duty of professionals?

Professionals owe higher standard of duties based on special education, skill or intelligence, breach of duty is called professional malpractice.

Defamation (intentional tort)

Protecting an intangible right (reputation) saying or writing something that is false about a person in order to damage their reputation

What does ADEA do?

Protects those who are 40+ from discrimination

What does FMLA provide?

Provide employees 12 weeks of unpaid leave; when a person comes back from a long leave they must be at an equivalent position (except key emplyees)

What are Special Damages?

Quantifiable such as lost wages, medical bills

What are the two types of sexual harassment?

Quid pro quo and hostile work environment

Wrongful Interference with a Business Relationship (business tort)

Reasonable competitive behavior is allowed, unreasonable behavior is not

Comparative Negligence

Reduces the plaintiff's damages in proportion to the plaintiff's degree of fault (majority of states; def. 95% and plat. 5% plat = 95% reward)

Agency

Relationship of two parties an agent and a principal

Durable POA

Remains effective after incapacity or disability

Agent

Represents/acts on behalf of the Principal

Social Security

Retirement benefits, survivors benefits, and disability insurance (supplemental security income)

What does OSHA do?

Says that an employer with 11 or more employees must keep employee illness/injury records for each employee

What are the 2 type of compensatory damages available with tort law?

Special and General Damages

What guides most employer/employee relationships?

Statutory Laws

What is the remedy for an agent or principal?

Sue the other either in tort or in contract

I-9 Employment Verification

System that verifies that new immigrant employees are able to work in the US, as well as their identity (must be completed within 3 days of the person starting work)

Conversion

Taking someone's personal property with the intent to deprive them of it; civil equivalent of theft

What is the defense of a defamation charge?

Telling the truth is a complete defense

When the grantor dies what happens?

The POA ends (it does not survive death)

Fiduciary Relationship

The duty of an agent to act in the principal's best interest

Employee v. Independent Contractor

The more control a company exercises over an individual the more likely they are to be an employee not an independent contractor

If the agent is authorized to act and does so, what happens to the principal?

The principal is bound to the obligation

Tort Theory

There is an intentional tort against the employee, in this case the person might be awarded their job back

What must a person be able to do with or without accomadations?

They must be able to complete the essential functions of the job in order to be hired

Quid Pro Quo

This for that

If you are not exempt from overtime pay how are you usually paid?

Time-and-a-half wages

Battery (intentional tort)

Unwanted touching (gentle or otherwise)

Appropriation (defamation)

Using someone's name or likeness without permission/compensation

Slander (defamation)

Verbally saying something false about a person

General POA

Very broad grant of authority

Constructive Discharge

When working conditions compel an employee to leave

Public Policy (Wrongful Discharge)

Whistleblowing; employee believes that they were improperly fired from their job

If an employee is hospitalized or killed in a workplace incident, when does OSHA say they must be notified?

Within 8 hours

WARN

Worker Adjustment and Retraining Notification

What is workers compensation for employees injured at work?

Workers Comp is an exclusive remedy

Are damages available for tort law?

Yes

Libel (defamation)

defamation done in writing of some sort (newspaper, magazine, etc.)

Workers' Compensation Laws

provides compensation for workers injured on the job

Trespass to Personal Property (intentional tort)

temporarily taking someone's property (intent to give back)

Statement of Fact v Opinion

this car has 70,000 miles v. this is the best used car in town

Overtime

time worked beyond the regular hours; 40+ hours

Liability for an independent contractor tort or crime?

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