BLAW Exam 3

Employee Requirements to be Protected Under the FMLA (READ)

- Employees must have worked for their employer for at least one year. - Employees may take up to 12 weeks of unpaid leave within a 12-month period of time. Covered reasons include: - Care of a newborn baby within one year of birth - Care of an adopted or foster child within one year of the time the child is placed in the employee's home - Care of a spouse, child, or parent with a serious health condition - Care of self, if the employee has a serious health condition and is unable to perform the tasks of their job - To attend to a nonmedical emergency arising from the employee's spouse, child, or parent being a military member on active duty (additional unpaid time is permitted for leave of a military caregiver)

A company handbook states that employees will be given warnings for three instances of arriving late for work, after which they will be fired. An employee is fired after being late for the first time. Which of the exceptions to at-will employment could apply? Tort law. Contractual agreements. Public policy. Statutes.

Contractual agreements.

Remedies for wrongful termination

- reinstatement - lost wages and benefits - emotional distress - punitive damages - attorney's fees.

What are the best remedies for wrongful termination in the case of someone who found another job three months after being fired? Choose 2 answer choices. Reinstatement. Lost wages. Lost benefits. Criminal charges.

Lost wages. Lost benefits.

he 1935 act that protects workers' rights to form and join unions for collective bargaining is called the: National Labor Relations Act (NLRA). Better Together Act (BTA). National Unions Act (NUA). Collective Bargaining Power Act (CBPA).

National Labor Relations Act (NLRA).

The Misappropriation Of A Trade Secret

Occurs when a person: 1) knowingly acquires the secret by improper means or 2) discloses the secret without consent of the owner if he had a duty to maintain its secrecy. Generally, trade secrets are misappropriated either by an employee who uses or discloses the information or by a competitor who wrongfully obtains the information such as through industrial espionage.

Trademark Infringement

Occurs when an unauthorized person uses the mark (or a substantially similar mark) and thus causes confusion among consumers. Intention to confuse the consumer is not a requirement, but can be used to show a likelihood of confusion. Therefore, if a reasonable number of ordinarily prudent consumers are likely to be misled, then infringement has occurred. For example: 3M Company owned the trademark 3M®, which it used on a variety of products, including thin sheets made from reflective materials. If a second company began using the trademark "3N" on similar products, it is reasonable that consumers would be misled about the products' origins and, therefore, this would be an infringement on the 3M mark.

Patents

Protections for Inventions The United States Patent and Trademark Office (USPTO) issues patents to inventors, thereby providing them with legally enforceable interests in their invention under The Patent Act. Duration: 20 years from application for utility and plant patents; 14 years from the date of grant for design patents

Inherently Distinctive Trademarks

To be registered as a trademark, the mark must be distinctive, meaning that it must either be: 1) inherently distinctive 2) have acquired distinctiveness through a secondary meaning. A mark is inherently distinctive when purchasers of the product are likely to associate the mark with the product because of the context in which the mark is used. For example: The word Apple could not be registered as a trademark to sell apples, but it could be a trademark to sell computers.

Secondary Meaning Trademark

To be registered as a trademark, the mark must be distinctive, meaning that it must either be: 1) inherently distinctive or 2) have acquired distinctiveness through a secondary meaning. Secondary meaning is acquired when a large number of purchasers associate the mark with the product it identifies. For example: Holiday Inn. The words "holiday" and "inn" both describe or refer to hospitality and hotel services, but after many years of use, consumers associate Holiday Inn® with the specific hotel chain and not with hotel services in general. Marks may lose protection, however, once they become a generic description for the product. For example: escalator, jet ski, bubble wrap, onesies, and crock-pot.

Returning To Work Under The FMLA

Upon returning to work after FMLA leave, the employee should be restored to their original position or a comparable one if the original position is no longer available. Pay and benefits should also be comparable to before the employee's leave.

The Lanham Act

Was amended by The Federal Trademark Dilution Act of 1995 (and later the Trademark Dilution Revision Act), which protects against not only the infringement of marks but also the dilution of marks. Dilution occurs when a person or company begins to use a mark in commerce that gives rise to an association to a famous mark that is distinctive and this is likely to impair the distinctiveness of the famous mark or harm its reputation. For example: A restaurant owner who sells quick service hamburgers using the name "MacDonalds" has a high degree of similarity with the famous chain McDonalds®, and because both businesses sell quick-service hamburgers the use of "MacDonalds" would dilute and reduce the value of "McDonalds."

You are an accounting student at a university and also a talented guitar player. During summer vacation, you are hired full time to do bookkeeping for a computer store. You work during normal business hours at the computer store. Your work there is supervised by the office manager, and you are paid an hourly wage. On Saturday nights, you play guitar at a pub. You bring your own instrument and you decide what music to play. You are paid a set price for this gig. A question arises at both the store and the pub as to whether you are an employee or an independent contractor. This question is important because employers have certain obligations to employees that do not apply to independent contractors. For example, employers are liable for the wrongful acts of employees but generally not for the acts of independent contractors. Likewise, employers must withhold payroll taxes for employees but not for independent contractors. Are you an employee or an independent contractor at the store and at the pub? You are an independent contractor of both the computer store and the pub. You are an employee of both the computer store and the pub. You are an independent contractor of the computer store and an employee of the pub. You are an employee of the computer store and an independent contractor of the pub.

You are an employee of the computer store and an independent contractor of the pub.

The Family and Medical Leave Act (FMLA)

a federal law that allows for time off work for individuals that need medical care or who must take care of a family member that needs medical care. FMLA requires employers with 50 or more employees to provide unpaid leave if the employee qualifies under the Act. Some states have also enacted similar legislation that offers more generous coverage. In those cases, the state law will supersede; however, FMLA acts as a national baseline and employers must provide at least the level of coverage provided for in the FMLA.

Gerald has been a sales representative for Goldsmith's Department Store for the past five years. When Gerald was hired, the general manager told Gerald that he would have a job there as long as he made $3,000 in sales each month. Every month, Gerald has exceeded that level in sales, so he is surprised when his supervisor calls him into the office and fires him. Gerald tells the supervisor about the promise from the general manager not to fire him as long as his sales were $3,000 each month. The supervisor responds by telling Gerald that the law in this state is employment at will, so he can fire him at any time for any reason. If Gerald sues Goldsmith's for wrongful termination, he will likely: not be successful because the promise from the general manager was not in writing. not be successful because employment at will means that an employee can be fired at any time for any reason. be successful because the general manager orally promised him that he would remain in his job as long as his sales stayed at a specific level, and he has maintained that level.

be successful because the general manager orally promised him that he would remain in his job as long as his sales stayed at a specific level, and he has maintained that level.

FMLA applies to: employers with 50 or more employees. government employers only. employers who maintain a paid medical leave program. employers with 25 or more employees.

employers with 50 or more employees.

Workers' compensation benefits

established to compensate workers who are injured on the job. These benefits are administered by the individual states and, therefore, coverage and eligibility requirements vary based on where the injury arose. a state requires employers to contribute to a state fund which is then used to pay out claims. Employers contribute percentages of their employees' salaries and those percentages fluctuate depending on the industry in which the employee is employed. Not all employees are eligible for workers' compensation. Domestic workers, agricultural workers, and temporary workers are often excluded. Example: a contribution for an employee working in construction is higher than for an employee working in a clerical position because the risks of injury are different.

Which of the following types of trademarks are in the correct order, from highest protection to lowest protection? generic, descriptive, arbitrary, fanciful, suggestive fanciful, arbitrary, suggestive, descriptive, generic arbitrary, fanciful, suggestive, descriptive, generic suggestive, arbitrary, fanciful, generic, descriptive

fanciful, arbitrary, suggestive, descriptive, generic

Copyright fair use exemption

infringement has not occurred when the copyrighted work was used for the purposes of criticism, comment, news reporting, or teaching For example: The writer of a best-selling book may not bring a claim for infringement against a newspaper that publishes a literary critique of the book or against an instructor who uses the book to illustrate a point in the classroom.

The National Labor Relations Board (NLRB) has the authority to: (Choose 3 answers.) investigate employees' charges of unfair labor practices. file an appeal in federal court. issue a cease-and-desist order. file complaints against employers in response to charges of unfair labor practices brought by employees.

investigate employees' charges of unfair labor practices. issue a cease-and-desist order. file complaints against employers in response to charges of unfair labor practices brought by employees.

Copyright first sale doctrine

limits a copyright owner's rights of distribution by allowing the owner of a lawfully made copy of the work to sell that copy without an additional authority from the initial owner. For example: Liam purchases a textbook. He has the authority to use that book for his class and then to sell it or donate it after he is finished using it. However, Liam may not make copies of his book and sell the copies to his classmates. There are several exceptions to the first sale doctrine, however. 1. The rental or lease of sound recordings and computer software for direct or indirect commercial advantage, without the permission of the copyright owner, is prohibited. 2. copyright protections generally extend to those parts of computer programs or source code which can be read by humans and include binary-language object code as well as the overall structure, sequence, and organization of a program.

Copyright infringement

occurs when an unauthorized person exercises rights exclusively reserved for the copyright owner. The infringement does not need to be intentional. Instead, the rightful owner need only show that the infringing work is substantially similar to the copyrighted work and the alleged infringer had access to the copyrighted work.

Recovering Damages From Patent Infringement

patent owners must give notice to an infringer directly or provide constructive notice through the labeling of a patented invention with the word "patent" and the patent number. if a patent owner sells one of their products, the owner can no longer assert rights over the item under the patent exhaustion doctrine.

Copyrights

protected under the Federal Copyright Act, the exclusive legal rights of authors, composers, playwrights, artists, and publishers to publish and disperse their work as they see fit. Overall, protects Literary or Artistic Works They are filed with the Register of Copyrights, though registration is not required to protect a work, because copyright protection begins automatically as soon as the work is fixed in a tangible medium, such as being written down, but registration is required to be eligible for certain statutory damages and attorney fees when infringement has occurred. Duration: Author's life plus 70 years

FMLA requires employers covered by the act to: (Select 2 answers) (Assume employee is NOT in the military or part of a military family.) provide up to 12 weeks of unpaid leave in one year for qualified employees. provide up to 12 weeks of paid leave in one year for qualified employees. allow the qualified employee to continue on the workers' health insurance plan provided by the company. return the employee to their same position upon return from leave.

provide up to 12 weeks of paid leave in one year for qualified employees. allow the qualified employee to continue on the workers' health insurance plan provided by the company.

Patentability

requires the following: Novelty: Something that has not already been patented or is not available to the public for use or sale Nonobvious: Cannot be obvious to a person with ordinary skill. It must be different enough from existing technology to warrant patent protection. Usefulness: It does not need to be commercially valuable, but it must do something and be capable of being used. Naturally occurring substances are not patentable. Any substance must be made or modified from its natural state. For Example: naturally occurring bacteria would not be patentable, but bacteria that have been modified by humans could be patented. Likewise, laws of nature, calculations, and ideas cannot be patented. However, if those ideas are expressed in physical form through the creation of a machine or process, that could be patented.

Which posters does the Occupational Safety and Health Act (OSHA) require most businesses to display? Choose 3 answers. the "Job Safety and Health Protection" poster the "Fair Labor Standards Act" poster the "Family and Medical Leave Act" poster the "Fire Escape Routes" poster

the "Job Safety and Health Protection" poster the "Fair Labor Standards Act" poster the "Family and Medical Leave Act" poster

At the federal level, the primary legislation that protects workers from dangerous conditions on the job is: the Workers' Compensation Act (WCA). the Social Security Act (SSA). the Accidental Injury Compensation Act (AICA). the Occupational Safety and Health Act (OSHA).

the Occupational Safety and Health Act (OSHA).

A worker's status as an employee or independent contractor affects: (Choose 3 answers.) the business' liability for the worker's actions. whether the job is full time or part time. ownership of work created on the job. the business' taxes.

the business' liability for the worker's actions. ownership of work created on the job. the business' taxes.

Employment at will

the general rule for employment in the U.S. Just as an employee at will can continue or leave employment at any time, any employer can continue to employ or to discharge (terminate, fire) an employee at any time for any reason or for no reason.

Benjamin works for The Cabinet Maker, a large manufacturing plant that makes ready-to-hang cabinets for the kitchen and bath. Benjamin is running a table saw that cuts wood into strips to make a cabinet. As Benjamin loads wood onto the conveyer belt, he slips on the concrete floor and falls into the table saw. Benjamin's face and arms are severely injured by the table saw, and he is rushed to the hospital. Benjamin's injuries are so severe that he is admitted to the hospital for four days. The Cabinet Maker must file a report of Benjamin's work-related injury with the Occupational Safety and Health Administration (OSHA) within: forty-eight hours. one week. eight hours. twenty-four hours.

twenty-four hours.

Mateo is sixteen years old and just got his first job bagging groceries at Harry's Market, a local grocery store. During the school year, Mateo works limited hours after school and on the weekends. Now that school is out, Harry's Market increases Mateo's hours to six days a week and eight hours a day. Mateo's mother Isabel is concerned about Mateo working such long hours. She knows there is a federal law, the Fair Labor Standards Act (FLSA), that protects children from working long hours and too many days per week. When Isabel raises the issue with Mateo's supervisor, Mateo's supervisor explains to Isabel that: under the FLSA, children under eighteen must work less than thirty hours per week. under the FLSA, children under eighteen must work less than thirty-five hours per week. under the FLSA, children under eighteen must work less than forty hours per week. under the FLSA, children who are sixteen or seventeen years old may work unlimited hours as long as they work in nonhazardous jobs.

under the FLSA, children who are sixteen or seventeen years old may work unlimited hours as long as they work in nonhazardous jobs.

How much time off does the Family and Medical Leave Act (FMLA) provide? up to 12 weeks of unpaid time off up to six weeks of paid and up to six weeks of unpaid time off up to 12 weeks of paid time off whatever time is needed to take care of the health concern of a protected person

up to 12 weeks of unpaid time off

Patentability as a utility patent requires the invention be: useful, novel, and non-obvious. commercially valuable. distinctive.

useful, novel, and non-obvious.

Penalties foe Employers Who Violate FMLA

- Compensate the employee for lost wages, benefits, etc. - Reinstate the employee - Promote the employee (if a promotion was denied) - Pay the employee's court costs and attorney fees - Pay two times the amount of any award if the employer is found to have acted in bad faith

Exceptions To Employee At Will - Violations To These Exceptions Leads To Employee Lawsuit for Wrongful Termination

1. Contractual Agreements or Other Employer Promises: An employment agreement between an employer and an employee can change the employment status from at-will employment. If an employer fires an employee in violation of the terms of the employment contract, the employee can sue for wrongful discharge. 2. Statutes: Many laws protect employees from retaliation for certain actions. Example: If Sherry reports dangerous workplace safety violations to the Occupational Safety and Health Administration (OSHA), OSHA whistleblower law protects Sherry from retaliation by firing. 3. Tort Law: Employees can sue for wrongful discharge if some aspect of the firing caused damage to person or property in the process. Example: Imagine an employer going through an employee's personal belongings in an attempt to find reasons to fire that person. The tort of invasion of privacy, as involved here, could lead to a successful wrongful discharge lawsuit. Public Policy: Even if a firing does not violate contracts or statutes, and if there is no valid tort claim, an employee can sue if the firing violates public policy. Public policy claims generally fall into three categories based on the reason for termination: - The employee's refusal to violate a law - The employee was exercising a legal right - The employee was actively supporting societal values

Leahy-Smith America Invents Act

An act that changed the U.S. patent system so that the first person to file with the U.S. Patent and Trademark Office will receive the patent, not necessarily the person who actually invented the item first. Anyone who, without permission from the patent holder, makes, uses, or sells a patented invention directly infringes on the holder's rights, while a person who actively encourages another to make, use, or sell a patented invention without permission is an indirect infringer.

Which of the following is the most important distinction between employee status and independent contractor status? An employee has a high degree of skill and a specialized job. An independent contractor controls the details of his or her day-to-day work activities. An employee uses the employee's own tools for doing his or her work. An independent contractor has a company name.

An independent contractor controls the details of his or her day-to-day work activities.

Where do the funds to pay out state workers' compensation claims come from? Businesses form alliances and hold funds in joint savings accounts. Businesses must maintain privately held savings accounts. Business contributions to a federally held fund Business contributions to a state held fund

Business contributions to a state held fund

Trademarks

Designs and names, often officially registered, by which merchants or manufacturers designate and differentiate their products. Trademarks can be embodied in symbols, words, and names, and can also be found in scents, sounds, or other formats not represented by a drawing. Protected under the Lanham Act, the trademark must be distinctive so that it can be used to clearly identify the origin of the goods or services. Marks are registered through the United States Patent and Trademark Office (USPTO). Trademark examples: Shape of a Coca-Cola bottle MGM lion's roar Play-Doh scent The apple for Apple computers Duration: Federal protection last 10 years with unlimited 10-year renewals.

What are three ways that state workers' compensation claims are funded? Choose 3 answers. Employers pay into a state-run insurance plan, and claims are paid by the insurance. Employees purchase an optional injury insurance plan through the company and claims are paid through that insurance. Employers are self-insured and pay claims out of company funds. Employers pay into a privately-run insurance plan, and claims are paid by the insurance.

Employers pay into a state-run insurance plan, and claims are paid by the insurance. Employers are self-insured and pay claims out of company funds. Employers pay into a privately-run insurance plan, and claims are paid by the insurance.

Trade Secrets

Information owned by the company by which the company gains a competitive advantage. Protected under both state and federal common law and statutory law. Almost every state has enacted statutory laws based on the Uniform Trade Secrets Act, and federal protections for trade secrets can be found under the Economic Espionage Act if the information has an interstate or foreign connection. Because many trade secrets are protected under private non-disclosure agreements, anyone who violates the terms of the agreement and exposes a secret may be civilly liable for damages based on the economic harm arising from the disclosure, and/or may be liable under tort law for a breach of duty such as in the case of an employee/employer relationship. Duration: As long as it is kept confidential

Types of Patents: Design Patents

Items Protected: Ornamental design for an article of manufacture Requirements: Novel, Ornamental, Nonobvious Duration: 14 years from the date of grant Examples: A cake pan in the shape of a dog biscuit; An office chair

Types of Patents: Utility Patents

Items Protected: Process, Machine, Manufacture, or Composition of Matter Requirements: Novel, Useful, Nonobvious Duration: 20 years from the date of application Examples: Electric engine; Chemical used for lawns as a weed inhibitor

Types of Patents: Plant Patents

Items Protected: Varieties of asexually produced plant Requirements: Novel, Distinctive, Nonobvious Duration: 20 years from the date of application Examples: Tulip with a unique color not found in nature; Genetically modified wheat resistant to certain diseases