LA 245 midterm 2

Executed Contract

An agreement in which all parties have fulfilled their obligations

executory contract

An agreement in which one or more parties have not yet fulfilled their obligations

voidable contract

An agreement that may be terminated by one of the parties

valid contract

An agreement that satisfies all of the law's requirements

express contract

An agreement with all the important terms explicitly stated

wrongful discharge

An employer may not fire a worker for a reason that violates basic social rights, duties, or responsibilities

Parol Evidence

The parol evidence rule: When two parties make an integrated contract, neither one may use parol evidence to contradict, vary, or add to its terms

Genetic Information Nondiscrimination Act

Under GINA, employers with 15 or more workers may not require genetic testing or use information about genetic makeup or family medical history as a factor in hiring, firing, or promoting employees

The Civil Rights Act of 1964

Under Title VII of the Civil Rights Act of 1964, it is illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin protected categories: Race, color, religion, sex, or national origin

Immigration

Under Title VII, it is illegal for employers to discriminate against noncitizens because "national origin" is a protected category

quantum meruit

"As much as he deserves"—the damages awarded in a quasi-contract case

EEOC

Equal Employment Opportunity Commission (EEOC)The agency charged with enforcing federal discrimination law

collective bargaining agreement (CBA)

- A contract between a union and a company - The NLRA permits the parties to bargain almost any subject they wish, but it requires them to bargain wages, hours, and other terms and conditions of employment - The union and the employer are not obligated to reach an agreement, but they are required to bargain in good faith.

exculpatory clause

- A contract provision that attempts to release one party from liability in the event the other is injured - An exculpatory clause is generally unenforceable when it attempts to exclude an intentional tort or gross negligence - An exculpatory clause is usually unenforceable when the affected activity is in the public interest, such as medical care, public transportation, or some essential service - An exculpatory clause is generally unenforceable when the parties have greatly unequal bargaining power - An exculpatory clause is generally unenforceable unless the clause is clearly written and readily visible

Americans with Disabilities Act

- A disabled person is someone with a physical or mental impairment that substantially limits a major life activity or the operation of a major bodily function or someone who is regarded as having such an impairment - Once it is established that a worker is disabled, employers may not discriminate on the basis of disability as long as the worker can, with reasonable accommodation, perform the essential functions of the job. An accommodation is unreasonable if it would create undue hardship for the employer To meet this standard, employers are expected to: - Make facilities accessible, - Permit part-time schedules, - Acquire or modify equipment, and - Assign a disabled person to an open position that he can perform. (Note that the employer is not required to create a new job or find a perfect position, just a reasonable one.)

Restitution

- A minor who disaffirms a contract must return the consideration he has received, to the extent he is able. Restoring the other party to its original position is called restitution.

What Is Value?

- Act - Forbearance: Refraining from doing something that one has a legal right to do - Promise to Act or Forbear

In analyzing a claim of economic duress, courts look at these factors:

- Acts that have no legitimate business purpose - Greatly unequal bargaining power - An unnaturally large gain for one party - Financial distress to one party

duress

- An improper threat made to force another party to enter into a contract - If one party makes an improper threat that causes the victim to enter into a contract, and the victim had no reasonable alternative, the contract is voidable

"serious health condition" under the FMLA

- Any health issue that requires hospitalization - A condition that requires more than one visit to a healthcare provider; the visits may be spread out over as long as a year - A condition that requires only one visit to a healthcare provider but also requires a course of treatment such as physical therapy or prescription medication

Uniform Commercial Code

- Article 2: "Goods" means anything movable, except for money, securities, and certain legal rights -

Common Law Employee Protections

- As a general rule, employees may not be discharged for refusing to break the law. - As a general rule, an employer may not discharge a worker for exercising a legal right if that right supports public policy - Courts are sometimes willing to protect employees who do the right thing, even if they violate the boss's orders

Capacity and Consent

- Capacity means the legal ability of a party to enter a contract in the first place - Consent refers to whether a contracting party truly understood the terms of the contract and whether she made the agreement voluntarily

Disparate impact

- Disparate impact applies if the employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected category 1. The plaintiff must present a prima facie case: hat the employment practice in question excludes a disproportionate number of people in a protected group 2. The defendant must offer some evidence that the employment practice was a job-related business necessity 3. To win, the plaintiff must now prove either that the employer's reason is a pretext or that other, less discriminatory, rules would achieve the same results

Two questions determine whether a statement is an offer:

- Do the offeror's words and actions indicate an intention to make a bargain? - Are the terms of the offer reasonably definite?

Background Checks

- EEOC regulations prohibit companies from using criminal history information in a way that has an adverse impact on employees in a protected category if the background information is irrelevant in determining whether the employee is appropriate for the job - Employers may not consider arrest records because that is not evidence of wrongdoing. The EEOC also discourages the use of credit checks because minorities tend to have worse credit ratings than Whites

Tort Law

- Employers may be liable for defamation when they give false references about an employee - More than half of the states recognize a qualified privilege for employers who give references about former employees. A qualified privilege means that employers are liable only for false statements that they know to be false or that are primarily motivated by ill will - Generally, courts have held that employers do not have a legal obligation to disclose information about former employees. But, in the case of violence, courts are divided - If a worker's behavior is particularly extreme and outrageous, employers may face liability under the tort of intentional infliction of emotional distress

Hostile Work Environment

- Employers violate Title VII if they permit a work environment that is so hostile toward people in a protected category that it affects their ability to work Sexual Harassment 2 categories: - Quid pro quo: A Latin phrase that means, "one thing in return for another." - Hostile work environment. An employee has a valid claim of sexual harassment if sexual talk and activity are so pervasive that they interfere with her (or his) ability to work Same-sex harassment Me-too prohibits: - nondisclosure provisions in settlement agreements involving sexual misdeeds and - non disparagement rules that prohibit employees from criticizing their workplace.

UCC §2-207 dramatically modifies the mirror image rule for the sale of goods

- For the sale of goods, the most important factor is whether the parties believe they have a binding agreement. If their conduct indicates that they have a deal, they probably do. - If the offeree adds new terms to the offer, acceptance by the offeror generally creates a binding agreement. - If the offeree changes the terms of the offer, a court will probably rely on general principles of the UCC to create a fair contract. - If a party wants a contract on its terms only, with no changes, it must clearly indicate that.

OSHA

- General duty. Employers are under a general duty to keep their workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. - Specific health and safety standards. Employers must comply with specific health and safety standards such as those that protect workers from respiratory hazards at work. - Records. Employers must keep records of all workplace injuries and accidents. - Oversight. The Occupational Safety and Health Administration (which is also known as OSHA) may inspect workplaces to ensure that they are safe. OSHA may assess fines for violations and order employers to correct unsafe conditions.

Off-Duty Activities

- In the absence of a specific law to the contrary, employers do have the right to fire workers for off-duty conduct - A few states, such as California, have passed lifestyle laws that protect the right of employees to engage in any lawful activity or use any lawful product when off duty - In roughly 60 percent of the states, however, employers cannot prohibit workers from smoking. - Under federal law, private employers are permitted to randomly test job applicants and workers for alcohol and illegal drugs - the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal employment laws, permits employers to fire or refuse to hire workers for using prescribed drugs only if that use creates a safety issue.

Statements That Usually Do Not Amount to Offers

- Invitations to Bargain. - Letters of Intent - Advertisements

Social Media Policies

- Many companies now have social media policies that limit employee commentary, however these policies violate the NLRA if they unreasonably limit employee speech about work conditions - Note, however, that to be protected, the employee speech must be "concerted."

mutual mistake

- Occurs when both parties negotiate based on the same factual error - If the contract is based on a fundamental factual error by both parties, the contract is voidable by either one

Picketing

- Picketing the employer's workplace in support of a strike is generally lawful - Secondary boycotts are generally illegal. A secondary boycott is a picket line established not at the employer's premises but at a different workplace

Contract Law

- Promises made to job applicants are generally enforceable, even if not approved by the company's top executives - an employee handbook creates a contract

some states (such as Connecticut and Oregon) and cities (such as Chicago and Seattle) have passed laws that require employers to:

- Provide 14 days' notice of work schedules - Pay workers extra for each shift cancelled on short notice - Pay extra for split shifts - Avoid retaliating against workers who ask for changes in their work schedule.

Concerted action

- Tactics taken by union members to gain bargaining advantage - The NLRA guarantees the right of employees to engage in concerted action for mutual aid or protection

Termination of Offers

- Termination by Revocation: In general, the offeror may revoke the offer any time before it has been accepted - Termination by Rejection: If an offeree rejects an offer, the rejection immediately terminates the offer, or counteroffer - Termination by Expiration: When an offer specifies a time limit for acceptance, that period is binding. If the offer specifies no time limit, the offeree has a reasonable period in which to accept - Termination by Operation of Law: If an offeror dies or becomes mentally incapacitated, the offer terminates automatically and immediately, Destruction of the subject matter terminates the offer.

Fair Labor Standards Act

- The Fair Labor Standards Act (FLSA) regulates wages and limits child labor. This statute provides that hourly workers must be paid a minimum wage of $7.25 per hour, plus time and a half for any hours over 40 in one week. - The FLSA also prohibits "oppressive child labor,"

whistleblower protections

- The False Claims Act: a statute that permits whistleblowers to bring lawsuits against anyone who defrauds the government and prohibits an employer from retaliating against workers who file suit under this statute - Sarbanes-Oxley Act of 2002. This act protects employees of publicly traded companies who provide evidence of fraud to investigators (whether in or outside the company) - The Dodd-Frank Wall Street Reform and Consumer Protection Act. Anyone who provides information to the government about violations of securities or commodities laws is entitled to a payout of from 10 to 30 percent of whatever award the government receives, provided that the award tops $1 million - Constitutional protection for government employees. Employees of federal, state, and local governments have a right to free speech under the U.S. Constitution. Therefore, the government cannot retaliate against public employees who blow the whistle if the employee is speaking out on a matter of public concern - Statutory protection for federal employees. The Civil Service Reform Act and the Whistleblower Protection Act prevent retaliation against federal employees who report wrongdoing - State laws. All 50 states have laws that protect whistleblowers from retaliation by their employers but the scope of this protection varies greatly from state to state

The National Labor Relations Act (NLRA)

- The NLRA ensures the right of workers to form unions and encourages management and unions to bargain collectively and productively Section 7 of the NLRA guarantees employees (except supervisors) the right to: - Organize and join unions, - Bargain collectively through representatives of their own choosing, and - Engage in other concerted activities. supervisor: Anyone with the authority to make independent decisions on hiring, firing, disciplining, or promoting other workers Section 8 prohibits employers from engaging in the following unfair labor practices (ULPs): - Interfering with union organizing efforts, - Dominating or interfering with any union, - Discriminating against a union member, and - Refusing to bargain collectively with a union. Section 8 prohibits unions from engaging in these ULPs: - Interfering with employees who are exercising their labor rights, - Causing an employer to discriminate against workers as a means to strengthen the union, and - Charging excessive dues. NLRA also protects all employees (1) who engage in collective activity (2) relating to work conditions and (3) who are not supervisors - even non-unionized workers cannot be fired for complaining about their jobs, so long as these complaints are shared with other employees and are not inappropriately hostile or violent - NLRB adjudicates cases

Strikes

- The NLRA guarantees employees the right to strike, but with some limitations - no-strike clause: A clause in a CBA that prohibits the union from striking while the CBA is in force - Cooling off period: Before striking to terminate or modify a CBA, a union must give management 60 days' notice - Statutory Prohibition: Many states have outlawed strikes by public employees - sit-down strike: Members stop working but remain at their job posts, blocking replacement workers - Partial Strikes: A union may either walk off the job or stay on it, but it may not alternate.

Social Security

- The Social Security system pays benefits to workers who are retired, disabled, or temporarily unemployed and to the spouses and children of disabled or deceased workers - The Federal Unemployment Tax Act (FUTA) is the part of the Social Security system that provides support to the unemployed. - A worker who quits voluntarily or is fired for just cause is ineligible for unemployment benefits

5th and 14th amendments

- The courts have interpreted these provisions to prohibit employment discrimination by federal, state, and local governments.

Fraud

- The defendant knew that his statement was false or that he made the statement recklessly and without knowledge of whether it was false. - The false statement was material. - The injured party justifiably relied on the statement.

To rescind for unilateral mistake, the mistaken party must demonstrate that he entered the contract because of a basic factual error and that:

- The non-mistaken party knew or had reason to know of the error, or - The mistake is mathematical or mechanical alone, or - Enforcing the contract would be unconscionable - If the nonmistaken party knows or has reason to know of the other party's error, courts will not allow him to profit by snapping it up.

Non-Compete Agreements

- To be valid, an agreement not to compete must be part of a larger agreement - When a non-compete agreement is ancillary to the sale of a business, it is enforceable if reasonable in time, geographic area, and scope of activity. - In the absence of specific state statutes, non-compete agreements are enforceable only if they meet all of the following standards: 1. They are reasonably necessary for the protection of the employer. 2. They provide a reasonable time limit 3. They have a reasonable geographic limit 4. They are not harsh or oppressive to the employee 5. They are not contrary to public policy.

Disparate Treatment

- To prove a disparate treatment case, the plaintiff must show that she was treated less favorably than others because of her sex, race, color, religion, or national origin The required steps in a disparate treatment case are: 1. The plaintiff presents evidence that: - She belongs to a protected category under Title VII, - She suffered adverse employment action, and - This action occurred under conditions giving rise to an inference of discrimination. 2. The defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons 3. To win, the plaintiff must now prove that the employer intentionally discriminated, although this motive can be inferred from differences in treatment, prove either by - the reasons the employer offered were simply a pretext or - that a discriminatory intent is more likely than not.

Equal Pay Act of 1963 (EPA)

- Under the Equal Pay Act (EPA), a worker may not be paid at a lesser rate than employees of the opposite sex for equal work - However, unequal pay is legal if it is the result of: - Seniority - Merit - Quantity or quality of work - Any other factor other than sex Almost every state has some type of equal pay law. The range of provisions includes: - prohibiting unequal pay for "substantially similar" work; - banning employers from even asking about prior salary; and - allowing employees to discuss their salaries with their colleagues.

Organizing a Union

- Under §9 of the NLRA, a validly recognized union is the exclusive representative of the employees The Organizing Process: - Campaign - Authorization Cards: Union organizers ask workers to sign authorization cards, which state that the particular worker requests the specified union to act as her sole bargaining representative - Petition: Assuming that the employer does not voluntarily recognize a union, the union generally petitions the NLRB for an election - Election: The NLRB closely supervises the election to ensure fairness

There are two basic elements of consideration:

- Value: Consideration requires that both parties to a contract receive a legal benefit and incur a legal detriment. Legal benefit means receiving something of measurable value - Bargained-for exchange. Consideration involves reciprocity. The parties must have bargained for whatever was exchanged and struck a deal: "If you do this, I'll do that." If you just decide to deliver a cake to your neighbor's house without her expecting it, that may be something of value, but since you two did not bargain for it, there is no contract

Replacement Workers

- When employees go on strike, management has the right to use replacement workers - economic strike: One intended to gain wages or benefits - During an economic strike, an employer may hire permanent replacement workers - After a ULP strike, union members are entitled to their jobs back, even if that means the employer must lay off replacement workers

How minors can get out of contracts

- disaffirm: To give notice of refusal to be bound by an agreement -rescind the contract, that is, to have a court formally cancel it.

Sex

- gender must be irrelevant to employment decisions - Title VII forbids sexual stereotyping - Employers may adopt different appearance standards for men and women, but these standards may not impose a greater burden on one sex than the other - Unattractiveness is not a protected category under Title VII

Lockouts

- lockout: Management prohibits workers from entering the premises

Contract writing must include

- must be signed by the defendant; and - must state with reasonable certainty the name of each party, the subject matter of the agreement, and all of the essential terms and promises.

Undue Influence

- occurs when one party to a contract is in a position of trust and wrongfully dominates the other party To prove undue influence, two elements: - A relationship between the two parties either of trust or of domination and - Improper persuasion by the stronger party

Elements of a Contract

- offer: All contracts begin when a person or a company proposes a deal. It might involve buying something, selling something, doing a job, or anything else - acceptance: Once a party receives an offer, he must respond to it in a certain way - consideration: There has to be bargaining that leads to an exchange between the parties. Contracts cannot be a one-way street; both sides must receive some measurable benefit. - legality: The contract must be for a lawful purpose. Courts will not enforce agreements to sell cocaine, for example - capacity: The parties must be adults of sound mind. - consent: Certain kinds of trickery and force can prevent the formation of a contract. - writing: While verbal agreements often amount to contracts, some types of contracts must be in writing to be enforceable. - Performance and discharge: If a party fully accomplishes what the contract requires, his duties are discharged. - Remedies: A court will award money or other relief to a party injured by a breach of contract.

Privacy on Social Media

- the Stored Communications Act (SCA) prohibits unauthorized access to electronic communications - However, an employer has the right to monitor workers' electronic communications if: - the employee consents, - the monitoring occurs in the ordinary course of business, or - in the case of email, if the employer provides the computer system.

unilateral contract

A binding agreement in which one party has made an offer that the other party can accept only by action, not words

UCC §2-201(1)—The Basic Rule

A contract for the sale of goods worth $500 or more is not enforceable unless there is some writing, signed by the defendant, indicating that the parties reached an agreement

void agreement

A contract that neither party can enforce because the bargain is illegal or one of the parties had no legal authority to make it

Gambling

A gambling contract is illegal unless it is a type of wagering specifically authorized by state statute.

quasi-contract

A possible remedy for an injured plaintiff in a case with no valid contract, when the plaintiff can show benefit to the defendant, reasonable expectation of payment, and unjust enrichment. Must prove: - The plaintiff gave some benefit to the defendant, - The plaintiff reasonably expected to be paid for the benefit and the defendant knew this, and - The defendant would be unjustly enriched if he did not pay.

promissory estoppel

A possible remedy for an injured plaintiff in a case with no valid contract, where the plaintiff can show a promise, reasonable reliance, and injustice Must prove: - The defendant made a promise knowing that the plaintiff would likely rely on it, - The plaintiff did rely on the promise, and - The only way to avoid injustice is to enforce the promise.

bilateral contract

A promise made in exchange for another promise

integrated contract

A writing that the parties intend as the final, complete expression of their agreement

Unconscionable Contracts

An unconscionable contract is one that a court refuses to enforce because of fundamental unfairness - oppression, meaning that one party used its superior power to force a contract on the weaker party, and - surprise, meaning that the weaker party did not fully understand the consequences of its agreement.

Medical Exams

Applicants. An employer generally may not require a medical exam or ask about disabilities, except that the interviewer may ask: - Whether an applicant can perform the work (provided that the same question is asked of all applicants), - For the applicant to demonstrate how he would perform the job, and - (In the event that a disability is obvious) what accommodation the applicant would need. Entering employees. The company may require a medical test and make it a condition of employment, but the test must be: - Required of all employees in similar jobs, whether or not they are disabled, and - Treated as a confidential medical record (except for managers who need to know).

Defenses to Charges of Discrimination

Bona Fide Occupational Qualification: An employer is permitted to establish discriminatory job requirements if they are essential to the position in question (Note that only religion, sex, or national origin can be a BFOQ—never race or color.) However, the courts recognize three situations in which employers may consider customer preference: - Safety. The Supreme Court ruled that a maximum-security men's prison could refuse to hire women - Privacy. An employer may refuse to hire women to work in a men's bathroom - Authenticity. An employer may refuse to hire a man for a woman's role in a movie

Guns

Employers have the right to prohibit guns in the workplace but, in almost half the states, Bring Your Gun to Work laws prevent companies from banning firearms in their parking lot.

ONLINE WRAP AGREEMENTS

Clickwrap agreements are generally enforceable, but browsewraps are only enforceable when websites prove that the user knew about the terms. Hybridwraps are enforceable if the notice is conspicuous and near the click-to-consent button.

Health Insurance

Consolidated Omnibus Budget Reconciliation Act (COBRA), former employees must be allowed to continue their health coverage for 18 months after leaving their job. But they must pay the cost themselves, plus as much as an additional 2 percent to cover administrative expenses.

Parental Status

Discrimination based on parental status is a violation of Title VII if it involves treating men and women differently

Religion

Employers cannot discriminate against a worker because of his religious beliefs. In addition, employers must make reasonable accommodation for a worker's religious practices unless the request would cause undue hardship for the business

Gulino v. School District of NY

Facts: A New York State task force on teacher qualifications decided that all teachers needed a basic understanding of liberal arts and sciences. National Evaluation Systems (NES), a professional test development company, was hired to develop the Liberal Arts and Sciences Test (LAST) to measure this knowledge. Teachers could not be licensed to teach in New York City unless they passed the LAST. Whites succeeded at a higher rate than African-Americans and Latinos. A group of minority teachers filed suit against the Board of Education for the City of New York (Board) alleging that the LAST violated Title VII. Issue: Did the LAST violate Title VII? Decision: [A court must also] determine whether the exam is scored in a way that usefully selects those applicants who can better perform the job. There is no evidence that the committees were given any guidance as to the definition of "minimally-competent." At the same time, there was no evidence that higher scores on the LAST correlated with better teacher or student performance in the classroom. In conclusion, the Court finds that the LAST is not job related, and the Board violated Title VII by requiring Plaintiffs to pass the exam in order to receive a teaching license.

Hamer v. Sidway

Facts: A man promised his nephew that if he stopped drinking, smoking, and gambling until he was 21 that he would pay him $5000. When the nephew completed this agreement the uncle told him that he would hold onto the money and let it collect interest. When the uncle died Sidway, the executor to the uncles estate woudl not pay the money to Hamer, who now own the claim to the money, under the fact that he did not have consideration. Issue: did the original agreement show any consideration. in a agreement one must give up something. Decision: the court ruled in favor of Hamer because the legal rights given up by the nephew are enough to satisfy consideration.

Willoughby v. Conn. Container Corp.

Facts: Anthony Willoughby worked for Connecticut Container Corp. (CCC). When Willoughby was diagnosed with diabetes, he submitted a doctor's form to CCC's Human Resources department. Despite treatment, Willoughby experienced side effects that included swelling, dizziness, blurred vision, and frequent bathroom use. Heat caused the symptoms to worsen. For two weeks, Willoughby was assigned to particularly strenuous activity in the heat. One night, his ankles swelled and his vision deteriorated. When he told his supervisor, Darlene Bailey, she said "do the work or go home." Willoughby also informed the shift supervisor, who ignored him. He was fired for sleeping on the job. Willoughby filed suit, alleging that CCC had violated the ADA because it had failed to provide reasonable accommodation for his disability. CCC filed a motion for summary judgment. Issues: Was Willoughby disabled? If so, did CCC provide reasonable accommodation? Decision: Given that CCC did in fact have notice of Willoughby's disability, and given that CCC did not, prior to Willoughby's termination, engage with Willoughby in any sort of interactive process by which the parties worked together to assess whether Willoughby's disability could be reasonably accommodated, the Court finds that a jury could permissibly find that Willoughby is able to meet this claim that CCC failed to provide reasonable accommodation under the ADA.

Jespersens. v. Harrah's

Facts: Darlene Jespersen was a bartender at the sports bar in Harrah's Casino in Reno, Nevada. She was an outstanding employee, frequently praised by both her supervisors and customers. After Jespersen had been at Harrah's for almost 20 years, the casino implemented a program that required bartenders to be "well groomed, appealing to the eye." Men had to have short hair and could not wear nail polish or makeup. Women had to have their hair "teased, curled, or styled" and were also required to wear makeup, which included foundation/concealer and/or face powder, as well as blush, mascara, and lip color. After Harrah's fired Jespersen, she sued under Title VII. The district court granted Harrah's motion for summary judgment. Jespersen appealed. You Be the Judge: Did Harrah's requirement that women wear makeup violate Title VII? Argument fot jespersen: Jespersen refused to wear makeup to work because the cost—in time, money, and personal dignity—was too high. Men were not required to wear makeup, but women were. That difference meant a savings for men of hundreds of dollars and hours of time Argument for Harrah's: Employers are permitted to impose different appearance rules on women than on men as long as the overall burden on employees is the same. For example, it is not discriminatory to require men to wear their hair short. On balance, Harrah's rules did not impose a heavier burden on women than on men.

Nicosia v. Amazon

Facts: Dean Nicosia bought 1 Day Diet, a weight-loss supplement, on Amazon.com. When he later learned that 1 Day Diet contained a known dangerous chemical, Nicosia brought a class action against Amazon, asserting that its sale of 1 Day Diet was illegal. Amazon's Conditions of Use (COU) contained an arbitration clause providing that all disputes had to be resolved by binding, individual arbitration (no class actions allowed). Nicosia sued Amazon to invalidate the arbitration provision. He claimed that he did not know about the COU—and these terms did not apply to him—because Amazon did not clearly and conspicuously post them on the checkout page. Users were never required to click on the COU hyperlinks, nor in any other way agree to the contract. The order page was visually cluttered with payment information, shipping terms, and advertisements Issues: Did Nicosia have reasonable notice of the existence of Amazon's COU? Was he bound to Amazon's arbitration provision? Decision: It could be argued that the purpose of providing "reasonably conspicuous" notice of the hyperlinked terms is not merely to notify the user that these terms exist, but to encourage him or her to read them. But most consumers will not read the terms and conditions, no matter how prominently the notice is displayed, and those that do will usually not understand them. Among those that both read and understand the terms of use, most will proceed with the transaction anyway, because the terms are presented on a take-it-or-leave-it basis. The "reasonably conspicuous" notice rule is therefore one which is unlikely to have much effect, if any, on overall consumer welfare. For the reasons set forth, Amazon's motion to compel arbitration is GRANTED.

Johnny Doe v. Epic Games

Facts: Epic Games is the creator of Fortnite, a zombie survival video game. Fortnite is free but allows players to make non-refundable in-app purchases, which include weapons, character enhancements, and virtual currency. When Johnny Doe, a minor, downloaded Fortnite, he accepted the terms of Fortnite's End User License Agreement (EULA), which provided that its terms could change at any time, and the user's continued game play constituted acceptance of the new terms. About a year later, Johnny logged on to Fortnite and accepted an amended EULA, which now included an arbitration provision. The new EULA also made clear that if the users were minors, a parent or legal guardian had to consent on their behalf. Johnny did not show the amended EULA to his parents, but instead continued playing Fortnite. On several occasions, Johnny made in-app purchases using his own money and gift cards. Not until he later tried to cancel the purchases did Johnny realize they were non-refundable. In its motion to compel arbitration, Epic Games made two arguments. First, because Johnny's letter only mentioned the in-app purchases, he had not disaffirmed the EULAs and was therefore bound to arbitration. Second, Johnny could not disaffirm the contracts because he had continued playing Fortnite. Issue: Did Johnny validly disaffirm the in-app purchases and the EULAs? Decision: Whatever the method, disaffirmance by a minor rescinds the entire contract, rendering it a nullity. The disaffirmance statute reflects a policy of shielding minors from their lack of judgment and experience and conferring upon them the right to avoid their contracts in order that they may be protected against their own improvidence and the designs and machinations of other people. The statute also discourages adults from contracting with minors. Because plaintiff validly disaffirmed the EULAs, plaintiff cannot be compelled to arbitrate this dispute. Defendant's motion to compel arbitration is therefore DENIED.

Peterson v. Exide

Facts: Exide Technologies issued repeated warnings to Robert Peterson for driving forklifts too fast and violating other safety rules. After he was injured in a forklift crash, Exide granted him FMLA leave for 10 days while he recovered. Peterson's manager fired him during the leave period for "flagrant violations of safety rules." Peterson sued, claiming that he was terminated in retaliation for exercising his right to take FMLA leave. The lower court granted summary judgment to Exide, and Peterson appealed. Issue: Was Peterson fired in retaliation for claiming FMLA leave Result: Plaintiff has produced no evidence to undermine Defendant's nonretaliatory explanation for the termination. Aside from the fact Plaintiff was on FMLA leave when he was fired, no evidence suggests a causal connection between Plaintiff's firing and his exercise of FMLA rights. Therefore, the district court properly granted summary judgment.

King v. Head Start Family Hair Salons

Facts: Kathy King was a single mother supporting a college-age daughter. For 25 years, she had worked as a hairstylist. For the most recent 16 years, she had worked at Head Start, which provided haircuts, coloring, and styling for men and women. King was primarily a stylist, though she had also managed one of the Head Start facilities. King quit Head Start and began working as manager of a Sport Clips shop, located in the same mall as the store she just left. Sport Clips offered only haircuts and primarily served men and boys. Head Start filed suit, claiming that King was violating the non-compete agreement that she had signed. The agreement prohibited King from working at a competing business within a two-mile radius of any Head Start facility for 12 months after leaving the company Issue: Was the non-compete agreement valid? Decision: Excerpts from Justice Lyons's Decision: King's most persuasive argument is that the geographic restriction contained in the non-competition agreement imposes an undue hardship on her. King has been in the hair-care industry for 25 years, and it is the only industry in which she is skilled and the only industry in which she can find employment. Head Start has 30 locations throughout the Jefferson County and Shelby County area, making it virtually impossible for her to find employment in the hair-care industry at a facility that does not violate the terms of the non-competition agreement. According to King, the geographic restriction constitutes a blanket prohibition on practicing her trade. o prevent an undue burden on King and to afford some protection to Head Start, the trial court should enforce a more reasonable geographic restriction—such as one prohibiting King from providing hair-care services within a two-mile radius of the location of the Head Start facility at which she was formerly employed or imposing some other limitation that does not unreasonably interfere with King's right to gainful employment while, at the same time, protecting Head Start's interest in preventing King from unreasonably competing with it during the one-year period following her resignation. Reversed and remanded.

Gabriel v. Albany College of Pharmacy and Health Services

Facts: Matthew Gabriel was a student in Professor Pumo's immunology class. Professor Pumo's syllabus outlined course requirements and stated that "plagiarism will not be tolerated." After grading the first assignment, Professor Pumo realized that many papers had sentences copied from other sources without citations. Instead of reporting everyone for plagiarism, Professor Pumo said she would give students a "free pass" on one copied sentence. But Gabriel's paper contained many plagiarized sentences, so he received a failing grade for the assignment. Gabriel sued the professor for breach of contract. He argued that the syllabus was a contract and that the "free pass" policy broke it—because that term was not part of their original agreement. According to Gabriel, since the professor breached the contract, he was no longer obligated to refrain from plagiarizing, and so should not be punished. You Be the Judge: Was the professor's syllabus an offer whose acceptance formed an enforceable contract? Argument for Gabriel: A syllabus is a contract. On the first day of class, the professor presents the syllabus as an offer and students agree by staying in the course. Who has not chosen a class because of its particular workload or assignments? The terms in the syllabus are promises upon which students rely. Professor Pumo unilaterally changed the written "rules of the game." Once she broke her promise, there was no longer a "deal." Students should not be held to her arbitrary rules. Argument for Professor: Professors do not intend to make an offer when they hand out a syllabus—much less be legally bound! The syllabus is merely an announcement that provides general information about course requirements, grading policies, and behavior guidelines. Reasonable people do not expect a syllabus to be enforceable in court. It was not a contract—Professor Pumo had the right to change the class rules, make additional assignments, or even kick Gabriel out at any time. Even if the syllabus were a contract, the phrase "plagiarism will not be tolerated" is too indefinite to be a valid offer. Gabriel is not immune from the plagiarism rules.

Metsch v. Heinowitz

Facts: See the chapter opener. In 2017, California legalized the possession and use of marijuana for recreational use. Prior to that date, the state allowed limited distribution of the drug for medicinal purposes. The Metsches sued Heinowitz and King for breach of their respective contracts. The defendants moved for summary judgment, arguing that their contracts were unenforceable because the sale and use of marijuana was illegal in California when the contract was formed. The trial court agreed. The Metsches appealed, arguing that the contracts were enforceable because marijuana subsequently became legal. Issue: Were the contracts involving marijuana edibles void for illegality? Decision: A contract found to be illegal may not serve as the foundation of any action, and when the illegality of the contract renders the bargain unenforceable, a court will leave the parties where they were prior to the lawsuit. A contract must be lawful when made; and because there is no indication that the parties intended later legislation to be incorporated into the contracts, illegality must be determined at the time of the formation of the alleged contracts in January 2014. In January 2014, marijuana was a Schedule I controlled substance; and in January 2014, California law prohibited its possession, its planting, harvesting, drying, and processing, its possession for sale, and its transportation, importation, sale, or gift. The judgment is affirmed.

Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino and International Union of Painters and Allied Trades, District Council 16, Local 159, AFL-CIO

Facts: The International Union of Painters and Allied Trades was trying to unionize 3,000 workers at the Rio All-Suites Hotel and Casino in Las Vegas. The NLRA prohibits employers from interfering with union organizing efforts and requires that workers have adequate means of communicating among themselves. In the past, this provision had meant that employees could discuss union issues with, and distribute union literature to, fellow workers during nonworking times and in nonworking areas on an employer's premises. But union organizers did not have the right to use the owner's equipment. Violating this rule could lead to discipline or discharge. The union alleged that this prohibition against email use was an unfair labor practice. You Be the Judge: Do employees have the right to use a company email system to conduct union discussions with their fellow workers? Argument for Caesars: Although email is a convenient and effective method for discussions, the NLRA does not require that labor organizations be permitted the use of every, or even the most convenient, means of reaching individual workers. Under well-established precedent, union organizers do not have the right to use an employer's equipment. That is what an email system is—the employer's equipment. Argument for Union: Email is a central part of modern office life and a natural gathering place, like a breakroom or an employee cafeteria. Workers should be allowed to use an email system (on nonworking time) to communicate with each other for union purposes, unless the employer can prove that the expense of that usage justifies restrictions.

Rizo v. Yovino

Facts: When the Fresno County Office of Education hired Aileen Rizo as a math consultant, she had two master's degrees and nine years of experience. The County agreed to pay her $62,133, which was 5 percent more than what she had earned in her prior job. (The County used that formula for all new hires.) However, in the lunchroom three years later, Rizo discovered that a new male math consultant had been hired at $79,088, significantly more than she was then earning. It turned out that Rizo was the only female math consultant at Fresno County, and she was earning less than any of the men, although she had the most education and experience. The Human Resources department confirmed this disparity, but asserted that the difference was legal because it had nothing to do with her gender. Issue: Are prior earnings a legitimate reason to pay women less than men? We acknowledge that prior pay could be viewed as a proxy for job-related factors such as education, skills, or experience related to an employee's prior job, and that prior pay can be a function of factors related to an employee's prior job. But prior pay itself is not a factor related to the work an employee is currently performing. Here, the County has not explained why or how prior pay is indicative of Rizo's ability to perform the job she was hired to do.

Dalton School v Brune

Facts:-Brune was in charge of running the school play-play was cancelled because of complaints from parents-kids were upset so principal made the teachers rewrite the play in 3 days-Brune constructed an email and sent it to his employees-one employee showed the principal and Brune was questioned-Principal later questioned him again and fired him for "lying" Issue:-Did Stein, the head of the school, violate the NLRA? Decision:-yes because he was talking with others in his work; concerted

Weight

Generally, employment decisions based on a worker's weight are legal

Civil Rights Act of 1866

It has been interpreted to prohibit racial discrimination in both private and public employment (except it does not apply to the federal government)

Plaintiff's Remedies for Fraud

In the case of fraud, the injured party generally has a choice of rescinding the contract or suing for damages or, in some cases, doing both.

Reverse discrimination

Making an employment decision that harms a White person or a man because of his gender, color, or race

unilateral mistake

Occurs when only one party enters a contract under a mistaken assumption

mirror image rule

Requires that acceptance be on precisely the same terms as the offer

affirmative action

Programs that remedy the effects of past discrimination 3 sources: 1. litigation 2. voluntary action 3. Government contracts. The government may use affirmative action programs when awarding contracts only if - it can show that the programs are needed to overcome specific past discrimination, - they have time limits, and - nondiscriminatory alternatives are not available.

Disparate Impact

The ADEA prohibits disparate impact discrimination against existing employees only, not against job applicants Under the ADEA a disparate impact case requires only two steps: 1. The plaintiffs must present a prima facie case that the employment practice in question excludes a disproportionate number of people aged 40 and older 2. The employer wins if it can show that the discriminatory decision was based on a reasonable factor other than age

Pension Benefits

The Employee Retirement Income Security Act (ERISA) protects workers covered by private pension plans. Under ERISA, employers are not required to establish pension plans, but if they do, they must follow these federal rules

FMLA

The Family and Medical Leave Act (FMLA) guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or a serious health condition of their own or in their immediate family

Pregnancy

The Pregnancy Discrimination Act (PDA) is an amendment to the Civil Rights Act, which prohibits employers from firing, refusing to hire, or failing to promote a woman because she is pregnant

The Rehabilitation Act of 1973

The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the executive branch of the federal government, federal contractors, and entities that receive federal funds

Written Contracts

The Statute of Frauds requires certain agreements to be in writing to be enforceable. The agreements that must be in writing are those: - For the transfer of an interest in land, - That cannot be performed within one year, - In which a party promises to pay the debt of another, - Made by an executor of an estate to pay a debt of the estate, - Made in consideration of marriage, and - For the sale of goods of $500 or more. Once a contract is fully executed, it makes no difference that it was unwritten

Hostile Work Environment 2

The court ruled that the ADEA prohibits a hostile work environment based on age

Problems with Definiteness

The terms of the offer must also be definite

implied contract

The words and conduct of the parties indicate they intended an agreement

Retaliation

Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a claim under the statute, or take part in an investigation or hearing. A defendant can defeat a retaliation claim by showing that there were other, nondiscriminatory reasons for his action.

Bona Fide Occupational Qualification

To set a maximum age, the employer must show that: - The age limit is reasonably necessary to the essence of the business and either - Virtually everyone that age is unqualified for the job or - Age is the only way an employer can determine who is qualified.

Disparate Treatment 2

Under the ADEA, a disparate treatment case requires three steps: 1. The plaintiff must show that: - He is aged 40 or older, - He suffered an adverse employment action, - He was qualified for the job for which he was fired or not hired, and - He was replaced by a younger person. 2. The employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons 3. The plaintiff must show that: - The employer's reasons are a pretext; - In fact, the employer intentionally discriminated; and - But for the plaintiff's age, the employer would not have taken the action it did

Age

Under the Age Discrimination in Employment Act (ADEA), an employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person's employment opportunities because he is 40 or older.

Lie Detector Tests

Under the Employee Polygraph Protection Act of 1988, employers may not require, or even suggest, that an employee or job candidate submit to a lie detector test except in the following cases: - An employee who is part of an "ongoing investigation" into crimes that have already occurred; - An applicant applying for a government job; or - An applicant for a job in public transport, security services, banking, or at pharmaceutical firms that deal with controlled substances.

Workers' Compensation

Workers' compensation statutes ensure that employees receive payment for injuries incurred at work employers frequently won before workers comp was a thing by claiming that: - the injured worker was contributorily negligent, - a fellow employee had caused the accident, or - the injured worker had assumed the risk of injury.

unenforceable agreement

occurs when the parties intend to form a valid bargain, but a court declares that some rule of law prevents enforcing it