Exam 2 Chapters 4, 10, 11, 17 & 18 Questions

Which of the following is correct of legally mandated arbitration?

A. It is nonbinding and gives the losing party the automatic right to appeal.

Leticia was in a conference room being questioned by an attorney. The only other person in the room was a person from the court making a written record. Which of the following is this?

A. a deposition

The principal and agent may be either individuals or __________________.

A. entities

Julio is suing Sanchez for breach of contract. He wants to get some documents from Sanchez which he believes will help him prepare his case. What is the term for this procedure?

A. request for production

An agent that incurs expenses on behalf of her principal in the scope of her agency is entitled to what?

Reimbursement

The very essence of an agency relationship involves the _______duty of the agent, which requires good faith and acting in the best interests of the principal at all times.

fiduciary

The first step in establishing an agency relationship is that the _________ must _________ an offer to form an agency.

principal; manifest

Rulemaking, an important function of an administrative agency, typically involves all of the following steps, except

automatic judicial review.

Ahab is covered by the FLSA and works four consecutive weeks as follows: Week 1: 45 hours; Week 2: 41 hours; Week 3: 38 hours; Week 4: 36 hours. How many hours of overtime must Ahab's employer pay for this time period?

6

A company is in contract negotiations with their unionized employees. Union employees are unhappy with the progress of the negotiations and accuse management of stalling. After a strike authorization vote, the union stages a picket line in front of the company's headquarters. Under the NLRA, which of the following describes the union's actions?

A legal work stoppage.

On Monday, Wagner sends his agent, Franz, a check for $20,000 with instructions to purchase a delivery truck for Wagner's business. On Tuesday, in order to cover a pending personal bill, Franz deposits the $20,000 in his own account with the intent to replace the funds with a loan from his credit union. On Friday, Franz replaces the money and purchases the truck. Franz violated what fiduciary duty?

Accounting

Wagner hires an agent, Franz, to manage an apartment house. Franz fails to keep written records of the rent checks as they are received and fails to obtain invoices for repairs to apartments. Franz violated what fiduciary duty?

Accounting

Many agencies have the authority to adjudicate matters. Which of the following carry out the adjudication function?

Administrative Law Judges

_____________ is the body of law, drawn from various sources, that defines and regulates federal regulatory agencies and limits the exercise of authority by these agencies.

Administrative law

A principal and agent relationship requires a/an

Agreement of consent and control

The employment-at-will rule does not apply when

An employee has an express contract and when an employee is covered by a collective bargaining agreement (CBA).

Mary Ann hires Ernest to supervise all shipments made from the company's central delivery center. Ernest's work week is set by Mary Ann, and he is paid a salary and receives benefits. Which best describes Ernest's agency classification?

An employee, because Mary Ann has direction and control over his work hours and pay schedule.

Challenging a rule through judicial review on the basis of Motor Vehicle Manufacturing Association v. State Farm requires evidence that agency actions were ____and ____.

Arbitrary and capricious

What is the main difference between arbitration and mediation?

Arbitration produces a decision; mediation does not.

Which of the following are included in the IRS's three-prong test to help determine the status of an agent? I.Behavioral aspects of the agency. II. Any written agreement between the parties. III. Type of working relationship between principal and agent. IV. If the agency was created or implied.

B. I and III.

Rodriguez, an attorney, is planning to file a class action lawsuit on behalf of 500 people against two corporations: Cheatco, a company that sold an allegedly defective bicycle to the 500 customers, and Failco, a company that allegedly provided defective metal to make the frames of the bicycles. All 500 people suffered similar head injuries as a result of the alleged defects. Rodriguez is alleging the injuries were caused by both Cheatco and Failco. Which of the following is true of this planned class action?

B. It is a valid mass tort action.

Shawna sued her former employer for wrongful termination. The state in which she lives has a law requiring that she arbitrate the case. If Shawna is not satisfied with the decision of the arbitrator, what are her options?

B. She has an automatic right to appeal to a trial court

Which law requires courts to enforce arbitration awards?

B. The Federal Arbitration Act

The three most common formal methods of ADR are:

C. Mediation, arbitration and expert evaluation

During which step of union formation would employers distribute anti-union flyers?

Campaign

The duty of is an agent's fiduciary duty to act in the same careful manner when conducting the principal's affairs as a reasonable person would use in conducting his own personal transactions.

Care

Audie is signing a contract. He doesn't mind the idea of alternative dispute resolution (ADR) but wants to preserve his right to later have any dispute that arises under the matter heard in court. Which of the following would provide him with the right to have his case heard in court after ADR?

D. All of the answer choices would provide Aude the right to later have his case heard in court.

Delroy joined with hundreds of other people in a legal action where together they sued Implantco for producing a hernia mesh device that was implanted in them during surgery and later caused complications such as swelling and infections. What is the name for this legal action?

D. Class action

Corrie owns an apartment building and hires Justin to be the full-time manager. His duties include collecting rent, day-to-day maintenance, and handling tenant complaints. What category does Justin fall into?

Employee (agent)

Manager hires Ernest to supervise all shipments made from the company's central delivery center. Ernest's workweek is set by Manager and he is paid a salary and gets benefits. What is Ernest's agency classification?

Employee agent

How does the Freedom of Information Act (FOIA) make administrative agencies more accountable to the public?

FOIA allows public inspection of records created or obtained by agencies in the course of doing their work.

Liana and Sabine had a motor vehicle accident, and Sabine has sued Liana claiming severe back injuries. If Liana wants to obtain a copy of Sabine's doctor and hospital reports, she should serve a request for admissions to Sabine. (T/F)

False (A request for documents and reports would be made with a request for production.)

A summons is a court order compelling a person to testify or produce evidence in his or her possession. (T/F)

False (A subpoena is a court order compelling a person to testify or produce evidence in his or her possession. A summons is a formal, written notification served to the defendant informing her that she has been named in a lawsuit.)

Counterclaims are filed by the plaintiff in civil matters. (T/F)

False (Counterclaims are filed by defendants if they believe that the plaintiff has caused the defendant damages arising out of the same set of facts as articulated in the complaint.)

If an employee suffers an injury on the job or a job-related illness, the only mechanism for recovery is to bring a tort claim against the employer. (T/F)

False (Historically, tort law was the only mechanism for compensating an employee who suffered an injury on the job or a job-related illness. Now, all states have workers' compensation statutes. These statutes establish a structure for an injured employee to be compensated through a statutorily mandated insurance program as the exclusive remedy for workplace injuries or illnesses. Employees with job-related injuries or illnesses are paid based on a percentage of the employee's salary at the time of the occurrence.)

In civil cases the standard of proof used by state trial courts is a preponderance of the evidence, while in federal trial court the standard of proof is beyond a reasonable doubt. (T/F)

False (In all civil cases the standard of proof used by state and federal trial courts is a preponderance of the evidence. Beyond a reasonable doubt is the standard used in criminal trials.)

If a labor union chooses not to bring a union member's employee grievance to arbitration, the aggrieved union member is normally authorized to sue the employer to enforce contract provisions. (T/F)

False (Union contracts normally specify the means of arbitrating union grievances against an employer action or practice. Enforcement is initiated when an affected union member files an employee grievance. If a union chooses not to bring a grievance to arbitration, the individual union member is normally not authorized to pursue a lawsuit against the employer to enforce contract provisions. The union has broad discretion in deciding when to seek arbitration on the basis of a union member grievance.)

Who issues licenses to television and radios stations in the United States?

Federal Communications Commission

Both the proposed rule and the final rule are published in the .

Federal Register

George is called away by his employer to work in Europe for the summer, so he hires Bartram to take care of his prized garden until he returns. George agrees to send Bartram $1,000 per month, and Bartram agrees to use his own equipment. In this agency relationship, who is the principal?

George

Morse owns an apartment building. As a favor to Morse, his friend Lewis offers to watch over the building and respond to tenant complaints while Morse is out of town for the weekend. What category does Lewis fall into?

Gratuitous agent.

Which of the following are necessary for Congress to override a final rule by an administrative agency? I. Both houses must agree. II. An overruling resolution must be presented to the President. III. There must be a two-thirds majority to approve. IV. There must be an agreement of the executive branch.

I and II.

Which of the following positions are exempt from coverage from the FLSA? I. Engineer at a manufacturing firm II. Attorney III. Customer service representative IV. Office building receptionist

I and II.

The National Labor Relations Act (NLRA) guarantees workers which of the following? I. Right to use economic weapons such as a strike. II. Right to demand a vote on all business decisions. III. Right to engage in collective bargaining. IV. Right to two weeks paid vacation per year.

I and III.

Which of the following are included in the IRS's three-prong test to help determine the status of an agent? I. Behavioral aspects of the agency. II. Any written agreement between the parties. III. Type of working relationship between principal and agent. IV. If the agency was created or implied.

I and III.

Which of the following are included in the Fair Labor Standards Act (FLSA)? I. A maximum 40-hour workweek. II. Time off to care for a newborn. III. Pension protection for workers. IV. Child labor restrictions.

I and IV.

Dorian enters into a supply contract with BigCo on behalf of Gray Industries. Dorian is a manager for Gray Industries but is not authorized to enter into supply contracts. Which of the following statement(s) is/are true? I. Gray Industries may still ratify the supply contract. II. Dorian had actual authority to enter into the contract. III. Gray Industries must honor the contract under any circumstances.

I only

Which of the following are protections included in the Family Medical Leave Act (FMLA)? I. Employers must maintain the employee's health care benefits uninterrupted throughout the leave period. II. Employees are guaranteed employment in the same or similar job upon returning from a leave. III. Employers must reinstate an FMLA leave employee immediately upon notice that the leave is over. IV. Employers are prohibited from terminating an employee for three years upon return from a leave.

I, II, and III.

Which of the following positions are exempt from coverage from the FLSA? I. Attorney II. Insurance adjuster III. Accountant IV. Supermarket cashier

I, II, and III.

The major methods of "discovery" before trial are: I. Depositions and Interrogatories II. Requests for Admission III. Requests for Production

I. II, III.

Which of the following factors are not used by courts when applying the arbitrary and capricious standard? I. If the agency relied on factors that Congress had not intended it to consider. II. The amount of time that the agency spent during the rulemaking process. III. Whether the final rule is a logical outgrowth of the enacting statute. IV. Whether the agency is independent or not.

II, III, and IV.

Which of the following are duties owed by an agent to the principal? I. Insurance II. Obedience III. Disclosure IV. Disgorgement

II and III.

Which of the following are duties owed by an agent to the principal? I. Reimbursement II. Loyalty III. Obedience IV. Disgorgement

II and III.

Which of the following are not included in the IRS's three-prong test to help determine the status of an agent? I. Behavioral aspects of the agency. II. Any written agreement between the parties. III. Amount of employment taxes owed. IV. Working relationship between principal and agent.

II and III.

Which of the following are remedies available to the principal when an agent has breached the duty of loyalty? I. Retroaction II. Disgorgement III. Disclaimer IV. Rescission

II and IV.

Which of the following are considered to be federal disclosure statutes? I. Disclosure to the Public Act. II. Right to Public Information Act. III. Freedom of Information Act. IV. Government in the Sunshine Act

III and IV.

Which of the following are not broad agent classifications? I. Employee agents II. Independent contractor agents III. Sports agents IV. Real-estate agents

III and IV.

Which of the following are not remedies available to the principal when an agent has breached the duty of loyalty? I. Rescission II. Disgorgement III. Disclosure IV. Disposal

III and IV.

Which of the following positions are not exempt from coverage from the FLSA? I. Engineer at a manufacturing firm II. Attorney III. Customer service representative IV. Office building receptionist

III and IV.

The NLRA was amended by the _________________, which prohibited employers and employees from agreeing that union membership is required as a condition of employment.

Labor Management Relations Act

The _______________ was an amendment to the NLRA which gives the President of the United States authorization to suspend a strike for up to 80 days in times of national emergency.

Labor Management Relations Act

NewCo hires Troy as a consultant to assist the company with improving its technical efficiency. Which of the following is not true?

NewCo owes Troy the duty of loyalty.

If a plaintiff brings a civil lawsuit against a defendant for breach of contract, what burden of proof applies?

Preponderance of the evidence ("more likely than not")

__________ is the agency's decisions concerning when, how, and whom to regulate. Courts are very deferential to these administrative agency decisions.

Prosecutorial discretion

An administrative agency's policymaking function is known as .

Rulemaking

Which of the following is not a source of administrative law?

Rulemaking Control Act

LaMonte has sued Jarod and received judgment in the amount of $24,000. LaMonte is a judgment creditor. (T/F)

True

Silvia has been working full time for a large corporation for three years. Her mother has fallen ill and will need continuous care for the next few months. Silvia's employer grants her two months of medical leave. Under the Family and Medical Leave Act (FMLA), which of the following is true?

Silvia must be immediately reinstated at the same rate of pay when she returns.

Who is responsible for distributing retirement and medical benefits to eligible citizens?

Social Security Administration

Which statute is designed to take into consideration the impact of a proposed rule on small businesses?

The Regulatory Flexibility Act (RFA).

Legally mandated arbitration is nonbinding arbitration. (T/F)

True

Which of the following statements is always true about arbitration?

The disputing parties are bound to the decision of the arbitrator if they agreed to binding arbitration beforehand.

Agencies develop rules to be used in facilitating the government's administration of law. Which of the following statements on the rulemaking process is correct?

The final rule is published in the Federal Register.

A motion for a summary judgment may be filed by either the plaintiff or the defendant. (T/F)

True

If employees commence a strike to protest an unfair labor practice, the striking employees are entitled to immediate reinstatement (with back pay) once they unconditionally return to work. (T/F)

True

The American Arbitration Association provides mediation services as well as arbitration services. (T/F)

True

When the judge issues the jury instructions, the judge is said to be charging the jury. (T/F)

True

The Family Medical Leave Act (FMLA) provides for

Unpaid leave to care for a newborn baby.

In the hypothetical state of Carltown, the legislature passes a statute that prohibits an employer from retaliating against an employee on the basis that the employee notified authorities of employer actions that may harm the public. The Carltown law is an example of what exception to the employee-at-will rule?

Whistleblower statute

The Fair Labor Standards Act (FLSA) does not include

Workplace safety standards.

Administrative agencies use a system of administrative law judges to decide cases involving alleged violations of the agency's rules. This judicial function is known as _______.

adjudication

Many administrative agencies have the authority to adjudicate matters under their jurisdiction. The presiding officer at the hearing is usually a(n) _________________.

administrative law judge

To adjudicate matters under their jurisdiction, administrative agencies typically employ a(n) ________ to be the presiding officer at the adjudication hearing.

administrative law judge

Agency is a legal relationship in which the parties agree, in some form, that one party will act as a(n) _________ for another party, called the ________, subject to the control of a principal.

agent, principal

A1A Auto Manufacturing is regulated by an administrative agency. Without explanation or notice, the agency changes its policy, causing A1A to incur significant compliance costs. A1A may challenge the agency's action if it was __________.

arbitrary and capricious

If an agency's actions are challenged in court and the enabling statute is silent or ambiguous on an administrative agency's authority, the court will typically apply the _______ standard to determine whether the agency's actions were lawful.

arbitrary and capricious

Agencies departments within the executive branch are headed by ____________who report directly to the President.

cabinet secretaries

When any individual member of the public is directly affected by a particular agency's action, enabling statutes sometimes contain _____________ provisions, which allow members of the public to challenge the agency's action in court.

citizen suit

If the conduct of an employee is a small-scale deviation that is normally expected in the workday, it is not considered a frolic but rather a(n) ___________________.

detour

Under the Electronic Communications Privacy Act (ECPA), employers _____.

do not have the right to monitor employees' personal calls in the workplace.

A common form of agency arises in a(n) ____________.

employer-employee relationship

The ___________ permits employers to terminate an employee with or without advance notice and with or without just cause, subject to certain exceptions.

employment-at-will doctrine

Administrative agencies derive their authority to make policy and regulate a particular activity or industry from a(n) ________.

enabling statute

The Fair Labor Standards Act (FLSA) does NOT regulate _____.

gender discrimination

The primary purpose of the Consolidated Omnibus Budget Reconciliation Act (COBRA) is to ensure a terminated employee's access to _____ benefits.

health coverage

Congress has the power to remove an administrative agency head via

impeachment by the House of Representatives and removal by the Senate.

The U.S. Supreme Court has recognized that the President has _____ power over administrative agencies by virtue of the Appointments Clause of the Constitution.

inherent

Creating an agency requires the principal to _________ an offer to form an agency and the agent to _________ to act for the principal.

manifest; consent

Employers have __________ obligation to rehire striking workers or provide retroactive pay in cases of a strike for economic reasons.

no legal

The employees of the RockSolid Furniture Company want to organize and form a collective bargaining unit. According to the procedure set by the National Labor Relations Act (NLRA), the first step they need to take to form a labor union is to _____.

obtain authorization cards

Chung authorizes his agent, Greenberg, to build a new warehouse. Greenberg files for bankruptcy. The agency relationship is terminated through ___________.

operation of law

Courts are highly deferential to an administrative agency's decisions on when and whom to regulate. This is known as the agency's _________.

prosecutorial discretion

One important exception that displaces the employment-at-will rule recognizes that allowing employers to terminate an employee for certain reasons may contradict ___________.

public policy

Liability for principals of agents who are classified as employees is derived from the doctrine of ______________________.

respondeat superior

Workers who are injured in the workplace are guaranteed a continuous income by which of the following?

workers' compensation statutes

Christina hires Erick to provide a full analysis of the company's accounting records. Erick agrees to have the analysis complete within six months and he submits a monthly invoice for work performed. Which best describes Erick's agency classification?

C. An independent contractor, because he sets his own schedule and submits a monthly invoice.

Jada was shocked to receive documents indicating she was being sued by Martin. The litigation process has not advanced beyond this stage. She consulted with an attorney and believes that her employer, Tortco, is the proper party for Martin to sue. Which of the following is an available remedy that Jada may presue under these circumstances?

C. File a cross-claim

Which of the following is true of arbitration?

C. It is similar to a trial in that the arbitrator functions much like a judge.

Formal action in a lawsuit begins when the plaintiff files a _______.

C. summons and complaint

Transcripts of ADR proceedings are required to be available to the public. (T/F)

False (No public record is required in ADR proceedings.)

Each stage of litigation is separate and distinct, and each must be completed before the next stage may be started. (T/F)

False (Often the timing and completion of various stages of litigation overlap.)

Questions asked by an attorney of witnesses whom he or she has called to testify are called a cross-examination. (T/F)

False (Questions asked by an attorney of witnesses whom he or she has called to testify are called a direct examination.)

The Federal Arbitration Act provides a means for enforcement of arbitration agreements and decisions of arbitrators through the use of the state courts in the state in which the arbitration took place. (T/F)

False (The Federal Arbitration Act provides a means for enforcement of arbitration agreements and decisions of arbitrators through the use of federal courts.)

Independent agencies, like the Securities and Exchange Commission, function within the executive branch of the federal government and exist by virtue of the president's authority. (T/F)

False (The federal government has independent agencies (such as the Securities and Exchange Commission) that have been designated by Congress as independent of the executive branch and do not exist by virtue of the authority of the president.)

The losing party in an administrative law judge (ALJ) case generally has an automatic appeal to a federal trial court. (T/F)

False (The losing party in an ALJ case has an automatic appeal to the administrative head of the agency. An adverse decision from the agency may also be challenged in a federal trial court, but is not an automatic appeal.)

A company manufactures holiday themed gifts for retail stores. In August, management and labor began to negotiate a new union contract. As negotiations drag into October, the union threatens to strike. Management becomes concerned that a pre-holiday season strike would damage profitability to the point where the company would be devastated. Management decides to shut down the business and layoff all employees until the union agrees to bargain in good faith. Which of the following describes management's actions?

Legal, as a lockout.

A manufacturing company manufactures summer beach gear and clothing for retail stores. In January, management and labor began to negotiate a new union contract. As negotiations dragged into March, the union threatens to strike. Management becomes concerned that a pre-summer season strike would damage profitability to the point where the company would be devastated. Management decides to shut down the business and layoff all employees until the union agrees to bargain in good faith. Which of the following describes management's actions?

Legal, as a lockout.

This company manufactures holiday themed gifts for retail stores. In August, management and labor began to negotiate a new union contract. Unable to reach an agreement on wages, the union strikes in October. Management becomes concerned that a pre-holiday season strike would damage profitability to the point where the company would be devastated. Management decides to hire new employees during the strike and not replace the striking workers after the strike. Which of the following describes management's actions?

Legal, as a replacement worker hiring plan.

The major formal phases of civil litigation occur in this order:

Pleadings stage, discovery stage, trial, posttrial

Courts have given agencies broad latitude in publishing a revised final rule without an additional comment period under what condition?

The revisions were a logical-outgrowth of the original proposal.