Exam Review #3

Age Discrimination in Employment Act

1967 law that prohibits discrimination of employees 40 years and up.

Respondeat Superior

A doctrine under which a principal-employer is liable for any harm caused to a third party by an agent-employee in the course or scope of employment. EX: Customer claims grocery manager is at fault for dog being ran over since on-duty employee did it with company vehicle.

Agency -- Authority of the agent, what are they authorized to do?

"Agency" is a term that defines a legal relationship between two parties: the principal and the agent. The agent will only have legal authority to act on behalf of the principal so long both parties are in agreement to create the agency relationship and the principal must have the necessary legal capacity to enter into a contract.

What is employment at will mean and what are some exceptions to it. Make sure to know the statutory exceptions.

One of the statutory exceptions are title 7 other exceptions will be things like the equal pay act and the age discrimination act. Along with other exceptions we had whistleblowing and jury duty.

(5) What is collective bargaining?

Process by which a union representing a group of workers negotiates with management for a contract. Negotiation of wages and other conditions of employment by an organized body of employees.

(1) Difference between Quid pro quo sexual harassment and hostile work environment sexual harassment?

Quid pro quo sexual harassment occurs when a harasser is in a position of authority over the person being harassed. Usually in this type of harassment, the harasser is an employees supervisor. While hostile work environment sexual harassment has a more board definition. Hostile work environment includes words or actions that are so serve and pervasive that they create a work atmosphere that is abusive and intimidating.

(2) What is reasonable accommodation?

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

What is Respondeat Superior and why is it such an important concept and what does it do for society? Why is it so important to our society

Respondeat superior is a doctrine under which a principal-employer is liable for any harm caused to a third party by an agent-employee in the course or scope of employment.

What is social security, medicare, and Medicaid.

Social security-- The social security act provides for old-age (retirement), survivors', and disability insurance. Retired workers receive monthly payments from the Social Security administration. Medicare-- federal government health-insurance program administered by the social security administration for people 65 years of age and older and for some under the age of 65 who are disabled. Medicaid-- This program serves low-income people of every age. Patients usually pay no part of cost for covered medical expenses.

(8) How is each entity Taxed?

Sole Proprietorship -- business is not taxed separately, the owner must report all income or losses on personal taxes. Partnership -- Owners of the partnership are subject to income taxes from business profit. Corporation -- The corporation is taxed by its profit. They get double taxed.

(6) Know the differences between a sole proprietorship, partnership, and corporation.

Sole proprietorships are created by the owner, their legal position is not a separate entity; the owner is the business, and the owner has unlimited liability. Partnerships are created by agreement of the partnerships, they are separate legal entities in most states, and have unlimited liability. Corporations are authorized by the state under the state's corporation law, is a separate legal entity, limited liability.

What groups are covered by title 7?

The 5 major protected classes are: race, color, religion, sex and national origin.

What is a disability under ADA (Americans with Disabilities Act)?

The ADA defines a person with a disability as person who has a physical or mental impairment that substantially limits one or more major life activity. You must have a record of, or be regarded as having a substantial impairment.

What are the defenses for an employer to a sexual harassment case

The defenses for an employer in a sexual harassment include: (1) the employer reasonably tried to prevent and promptly correct the harassing behavior: (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer.

What is the equal pay act and what does it do and who does it apply to?

The equal pay act requires equal pay for male and female employees working at the same establishment doing similar work.

What does fair labor standards act regulate?

The fair labor standards act regulates minimum wage, overtime, equal pay, record-keeping, and child labor.

How is an agency relationship is formed between an employer and employee.

The fiduciary relationship in which one person (the agent) agrees to do something for another party (the principal). An employer hires an employee to perform some sort of service.

Difference between freedom of info act and government sunshine act

The government in the sunshine act also known as the Sunshine act was passed in 1976 and was intended to create transparency within the federal government. The act states that "every portion of every meeting of an agency (federal government agencies) shall be open to public observation." The freedom of information states that any person has the right to request access to federal agency records.

How is management of a corporation structured?

The most typical corporation organizational structure consist of a board of directors, officers, employees, and the shareholders or owners.

(Short-Answer) What does it mean to be working under the scope of employment for an employer? What are some of the things that the court will look at to determine whether or not somebody is working under the scope of employment.

The scope of employment (in a legal definition) refers to the range of duties an employee is allowed/ expected to do as a part of their job. Some of the things that the court will looks for are: (1) Whether the employee's act was authorized by the employer. (2) The time, place, and purpose of the act. (3) Whether the act was one commonly performed by employees on behalf of their employers. (4) The extent to which the employer's interest was advanced by the act. (5) The extent to which the private interests of the employee were involved. (6) Whether the employer furnished the means oe instrumentality by which an injury was inflicted. (7) Whether the employer had reason to know that the employee would perform the act in questions and whether the employee had done it before. (8) Whether the act involved the commission of a serious crime.

Sole Proprietorship

The simplest for of business organization, in which the owner is the business. The owner reports business income on his or her personal income tax return and is legally responsible for all debts and obligations incurred by the business.

Agency by Estoppel

This happens when a person makes a representation to a third party, whether by words or conduct, that another person is their agent.

What is the process in rule making

Three parts: Notice -- "proposal" Comment -- the "public comment" period gives citizens and interest groups the opportunity to make their opinions known about the proposed rule Final Rule -- once the rule has been proposed, commented on and revised if necessary, it is ready to be published as a final rule

(11) Derivative Suit

When the shareholders of a business file suit against the board members/ operators of a company.

What does it take to qualify for workers compensation?

Workers compensation provides medical expenses, lost wages, and rehabilitation costs to employees who are injured or become ill "in the course and scope" of their job. To qualify for workers' compensation you must be an employee of a company who has (or is suppose to have) workers' comp insurance and you must have been injured at work or as a result of job-related duties.

What are fiduciary duties?

duty of care and duty of loyalty.

How does burden shifting work in a discrimination case?

first thing is that the plantiff has to show that they are covered and part of a protected class and that they have a prima facie case. Then the burden shifts to the employer to show that they were not fired because they belong to a protected class, but instead they were fired because they were late to work, had a bad attitude, etc. Then it shifts to the employer to show that the explanation of the employer is a near pretext.

(3) Difference between detour and frolic

A frolic or detour occurs when an employee (agent) makes a physical departure from the service of his or her employer (principal). EX: If a delivery truck driver goes to see a friend while driving the delivery truck and causes a wreck the company would not be liable, but the employee would be held liable for damages. Difference between a Frolic and a Detour: A detour occurs when an employee or agent makes a MINOR departure for his employer's charge, whereas a Frolic constitutes a MAJOR departure wherein the employee is acting on his own and for his own benefit.

LLC (Limited Liability Company)

A hybrid form of business enterprise that offers the limited liability of a corporation and the tax advantages of a partnership.

Limited Partnership (LP)

A partnership consisting of one or more general partners and one or more limited partners.

What is a whistle blower?

A whistle blower is an employee that tells government authorities, upper-level managers, or the media that the employer is engaged in some unsafe or illegal activity. Whistle blowers are protected from retaliatory discharge under federal and state statutes, such as the Whistleblower Protection Act.

(4) What are the requirements for a search warrant for administrative agencies

Administrative inspections are also protected by the Fourth Amendment. However, administrative agency searches do not strictly adhere to the 4th amendment and the requirement of probable cause. The 4th amendment also governs administrative agencies' inspections of private residences and businesses. Administrative agencies are also permitted to inspect corporations and their records.

What is the Family and Medical Leave Act (FMLA)

Allows employees to take time off from work for family or medical reasons or in certain situations that arise from mili

Public Policy exceptions to employment at will

An employee is wrongfully discharged when the termination violates an explicit, well-established public policy of the state. EX:An employer cannot terminate an employee for filing a workers' compensation claim after being injured on the job.

What are unfair labor practices under the National Labor Relations Act

An unfair labor practice is an actions by an employer or a union that violates the NLRA. Ways an employer can commit one of these actions: interfering with your right to join, organize, or help a union, your right to be involved in collective bargaining, or your right to be involved in protected concerted activities with other employees.

Name the three branches of government and what they do.

Executive branch -- (President) enforces the law. Legislative Branch -- (Congress, house of representatives and the senate) they make the laws. Judiciary Branch -- (supreme court, lower courts) they interpret the law.

How is an agency relationship created; expressed, implied, oral.

Express -- an agency relationship is created when the principal "expresses" their intentions either orally or in writing. Implied -- Implied agency establishes an agency relationship through the actions/ operations of the two parties. "If it walks like a duck acts like a duck and sounds like a duck then it must be.... an agent."

Equal Employment Opportunity Commission (EEOC)

Federal agency created to enforce the Civil Rights Act of 1964, which forbids discrimination on the basis of race, creed, national origin, religion, or sex in hiring, promotion, or firing.

Freedom of Information Act

Gives all citizens the right to inspect all records of federal agencies except those containing military, intelligence, or trade secrets; increases accountability of bureaucracy

What is the Federal Register

journal that publishes the drafts of regulations for federal bureaucracy

Trial in an administrative proceeding is a

non-jury. There is never a jury when an administrative agency is on trial. There will still be an opportunity to have a lawyer, to present your case, to cross examine witnesses, to subpoena witnesses, but there will be no jury trial.

Advantages and Disadvantages of a Sole Proprietorship

one of the biggest advantages of a sole proprietorship are the taxes. The owner pays only personal income taxes on the business's profits. It is also the easiest and cheapest business to start because of the lack of legal formalities that are required to start the business.

(10) What is piercing the corporate veil?

when courts make the shareholders of a company liable. A lot of times businesses owners and managers choose to form a corporation or LLC is so they won't be held personally liable for debts should the business be unable to pay its creditors.