BUL 3320 Exam 3
Sit down strikes
Striking employees continue to occupy the employer's premises. Such strikes are illegal because they deny the employer's statutory right to continue its operations during the strike
Termination of an Agency by an Unusual Change in Circumstances
a situation where an agency terminated because an unusual change in circumstances has occurred that would lead the agent to believe that the principal's original instructions should no longer be valid.
Landrum Griffin Act
labors "bill of rights". gives each union member equal rights and privileges to nominate candidates for union office, vote in elections, and participate in membership meetings. It further guarantees union members the rights of free speech and assembly, provides for due process, and permits union members to initiate judicial and administrative action. A union may discipline members for participating in certain activities, including (1) walking off the job in a non sanctioned strike, (2) working for wages below union scale, (3) spying for an employer, and (4) any other unauthorized activity that has adverse economic impact on the union. Union may not punish for members participating in civic duties, such as testifying in courts against the union.
Treaty Clause/ Power to Make Treaties
states that the president shall have the power, by and with the advice and consent of the Senate, to make treaties, provided 2/3 of the senators present concur. Only federal government can enter into treaties with foreign nations. Treaties become the "law of the land" and conflicting state or local laws are void.
Specific Performance
orders the breaching party to perform the acts promised in the contract. Usually awarded in cases in which the subject matter is unique, such as contracts involving land, heirlooms, and paintings. Specific performance of personal service contracts is not granted because the courts would find it difficult or impracticable to supervise or monitor performance of such a contract.
Liquidated Damages
parties to a contract may agree in advance to the amount of damages payable on a breach of contract. To be lawful, actual damages must be difficult or impracticable to determine, and the liquidated amount must be reasonable in the circumstances.
Partial or intermittent strikes
Employees strike part of the day or workweek and work the other part. This type of strike is illegal because it interferes with the employer's right to operate its facilities at full capacity.
Required types of income for filing a Chapter 13 bankruptcy
A chapter 13 proceeding can be initiated only through the voluntary filing of a petition by an individual debtor with regular income - income is is sufficiently stable and regular to enable the individual to make payments under a chapter 13 plan. bankruptcy law established a dollar limits on the secured and unsecured debt that a debtor may have in order to qualify to file a chapter 13 bankruptcy. Only an individual with regular income alone or with a spouse who owes individually or with a spouse (1) noncontingent, liquidated, unsecured debts of not more than $394,725 and (2) secured debts of not more than $1,184,200 may file a petition for chapter 13 bankruptcy. Individual debtors who exceed these dollar limits do not qualify for chapter 13.
Trademark
A distinctive mark, symbol, name, word, motto, or device that identifies the goods of a particular business. EX: Coca-Cola, Walmart, Big Mac, iPhone, Intel Inside are all trademarks.
Equal Pay Act
A federal statute passed in 1963 that protects both sexes from pay discrimination based on sex. covers all levels of private sector employees and state and local government employees. Federal workers are not covered, however. It extends to jobs that require equal skill, equal effort, equal responsibility, and similar working conditions. job content, not titles, determines whether positions are substantially equal.
Bankruptcy Trustee when appointed
A legal representative of the debtor's estate. must be appointed in chapter 7 (liquidation), chapter 12 (family farmer or family fisherman), and chapter 13 (adjustment of debts) bankruptcy cases. may be appointed in a Chapter 11 (reorganization) case on a showing of a fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by the current management.
Termination of an Agency by Impossibility of Performance
A situation where an agency terminated because a situation arises that makes the fulfilment of the agency impossible
Termination of an Agency by an Act of the Parties
A situation where the parties to an agency contract terminate their contract by mutual agreement or when a previously agreed on event occurs. terminated by the following acts: mutual assent of parties, a stated time has lapsed, a specified purpose is achieved, the occurrence of a stated event.
Fraudulent Transfer
A transfer of a debtor's property or an obligation incurred by a debtor within two years of the filing of a petition, where (1) the debtor had actual intent to hinder, delay, or defraud a creditor or (2) the debtor received less than a reasonable equivalent in value. EX: Kathy owes her unsecured creditors 100,000. On Feb 9, Kathy knows she is insolvent and owns a Mercedes worth 55,000. On Feb 9, Kathy sells her Mercedes to Wei for 30,000. On July 1, Kathy files for liquidation bankruptcy while still owing 100,000. Court voids Kathy's sale of her automobile as a fraudulent transfer, because within 2 years and less than a reasonable value. Court must repay Wei the purchase price of 30,000 to recover the automobile from her.
Closed Shop agreement
An employer agrees to hire only employees who are already members of a union. The employer cannot hire employees who are not members. A closed shop agreement is illegal in the United States.
No Strike Clause
An employer and a union can agree in a collective bargaining agreement that the union will not strike during a particular period of time. The employer gives economic benefits to the union and, in exchange, the union agrees that no strike will be called for the set time. It's illegal to violate this clause and you can be fired if you do
Union Shop Agreement
An employer may hire anyone whether he or she belongs to a union or not. However, an employee must join the union within a certain time period (e.g., 30 days) after being hired. Union shops are lawful.
copyright infringement
An infringement that occurs when a party copies a substantial and material part of a plaintiff's copyrighted work without permission. A copyright holder may recover (1) the profit made by the defendant from copyright infringement, (2) damages suffered by the plaintiff, (3) an order requiring the impoundment and destruction of the infringing works, and (4) an injunction preventing the defendant from infringing in the future.
Debtor Exemptions
Certain property is exempt from the bankruptcy estate. Exempt property is a property of the debtor that he or she can keep and that does not become part of the bankruptcy estate. Creditors cannot claim the property. Bankruptcy code lists properties and assets that a debtor can claim as exempt property. Federal exemptions are adjusted every 3 years to reflect changes in the consumer price index.
Student Loans
Congress amended the Bankruptcy Code to make it more difficult for students to have their student loans discharged in bankruptcy. cannot be discharged unless their non discharge would cause undue hardship to the debtor and his or her dependents. Undue hardship is construed strictly and is difficult for the debtor to prove unless the debtor can show severe physical or mental disability or inability to pay for basic necessities, such as food or shelter, for his or her family. Co-signers must also meet the heightened undue hardship test to discharge their obligation.
Nominal Damages
Damages awarded when the nonbreaching party sues the breaching party even though no financial loss has resulted from the breach. Nominal damages are usually $1 or some other small amount. Usually brought on principle. Most courts disfavor nominal damages because they use valuable court time and resources.
Private Placement
Exemptions from registration with the SEC of an issue of securities that does not involve a public offering. There are two private placement exemptions: a. Rule 506(b): permits issuers to raise any amount of capital from an unlimited number of accredited investors and no more than 35 unaccredited investors without having to register the offering with the SEC. General solicitation of or advertising of the offering to the public is not permitted. b. Rule 506(c): Permits issuers to raise any amount of capital from an unlimited number of accredited investors without having to register the offering with the SEC. General solicitation and advertising of the offering to the public including using the internet, is permitted.
Sarbanes-Oxley Act
Federal statute that establishes rules to improve corporate governance, prevent fraud, and add transparency to corporate operations. Major provisions include: CEO and CFO certification, Reimbursement of bonuses and incentive pay, prohibition on personal loans, penalties for tampering with evidence, bar from acting as an officer or director.
Generic Name
If a word, name, or slogan is too generic, it cannot be registered as a trademark. EX: secret cannot be trademarked, but Victoria's Secret can. However, a company may be too successful in promoting a mark, and at some point in time the public begins to use the brand name as a common name to denote the type of product or service being sold rather than as the trademark or service mark of the individual seller. term loses its protection under federal trademark law.
Employee Lockout
If an employer reasonably anticipates a strike by some of its employees, it may prevent those employees from entering the plant or premises.
Domestic Support Obligations
If the debtor owes a domestic-support obligation, the trustee must notify the person entitled to receive the support about the debtor's bankruptcy filing. domestic support obligations are number 1 in the order of their statutory priority in the bankruptcy code for unsecured claims.
Unemployment benefits
In 1935, Congress established an unemployment compensation program to assist workers who are temporarily unemployed. Under the Federal Unemployment Tax Act (FUTA) and state laws enacted to implement the program, employers are required to pay unemployment contributions (taxes). Employees do not pay unemployment taxes. State governments administer unemployment compensation programs under general guidelines set by the federal government. Each state establishes its own eligibility requirements and the amount and duration of the benefits. To collect benefits, applicants must be able to work and be available for work and seeking employment. Workers who have been let go because of bad conduct (e.g. illegal activity, drug use on the job) or who voluntarily quit work without just cause are not eligible to receive unemployment benefits.
Pregnancy Discrimination Act
In 1978, enacted as an amendment to Title VII. forbids employment discrimination against a female job applicant or employee because of her pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Domestic support obligations
NOT DISCHARGEABLE UNDER BANKRUPTCY - Domestic support obligations and alimony, maintenance, and child support payments resulting from a divorce decree or separation agreement
Blue Sky Laws
Regulates the issuance and trading of securities. Generally require the registration of certain securities, provide exemptions from registration, and contain broad antifraud provisions. State securities laws are often referred to as blue-sky laws because they help prevent investors from purchasing a piece of the blue sky.
Securities and Exchange Commission (SEC)
Securities Exchange Act of 1934 created the SEC, a federal administrative agency empowered to administer federal securities law. agency composed of 5 members, who are appointed by the president. Major responsibilities include: (1) adopting rules (regulations) that further the purpose of the federal securities statutes. Rules have the force of law, (2) Investigating alleged securities violations and bringing enforcement actions against suspected violators --> criminal prosecution, etc., (3) bringing a civil action to recover monetary damages from violators of securities laws. a whistleblower bounty program allows a person who provides information that leads to a successful SEC action in which more than $1 million is recovered to receive 10-30% of the money collected, (4) regulating the activities of securities brokers and advisors, which includes registering brokers and advisors and taking enforcement action against those who violate securities laws.
Regulation of securities sales
Securities laws created to promote full disclosure to investors and to prevent fraud in the issuance and trading of securities. enforced by federal and state regulatory authorities. 1933 and 1934 securities acts came about after the stock market crash of 1929.
North American Free Trade Agreement (NAFTA)
Signed in 1922. A treaty that has removed or reduced tariffs, duties, quotas, and other trade barriers among the United States, Canada, and Mexico. Treaty creates a free trade zone stretching from the Yukon to Yucatan. Agriculture, automobiles, computers, electronics, energy, and petrochemicals, financial services, insurance, telecommunications, etc. are affected. However, a country can impose tariffs if an import surge from one of the other nations hurts its economy or workers. NAFTA allows the bloc to discriminate against outsiders and to cut deals among its members. more of a "managed trade agreement".
Copyright Period
The Copyright Term Extension Act of 1998 extended copyright protection to the following: -Individuals are granted copyright protection for their lifetime plus 70 years. - Copyrights owned by businesses are protected for the shorter of either: a. 120 years from the year of creation, or b. 95 years from the year of first publication after the copyright period runs out, the work enter public domain
Fair Labor Standards Act (FLSA) - tipped employees
The FLSA established minimum wage and overtime pay requirements for workers. As of 2017, the minimum wage was set at $7.25 per hour. There is a special minimum wage rule for tipped employees. An employee who earns tips can be paid $2.13 an hour by an employer if that amount plus the tips received equals at least the minimum wage. If an employee's tips and direct employer payment does not equal minimum wage, the employer must make up the difference.
Child Labor
The FLSA forbids the use of oppressive child labor and makes it unlawful to ship goods produced by businesses that use oppressive child labor. The following regulations that define lawful child labor are: (1) Children under the age of 14 cannot work except as newspaper deliverers, (2) Children ages 14 and 15 may work limited hours in nonhazardous jobs approved by the Department of Labor (e.g. Restaurants), and (3) children ages 16 and 17 may work unlimited hours in non hazardous jobs. Department of Labor determined which jobs are hazardous (mining, roofing, working with explosives). Children who work in agricultural employment and child actors are exempt from these restrictions. Persons aged 18 or older may work any job.
Strike Vote
The NLRA gives union management the right to recommend that a union call a strike, if a collective bargaining agreement cannot be reached. Before there can be a strike, a majority of the union's members must vote in favor of the action.
Worker Adjustment and Retraining Notification (WARN) act
The act requires employers with 100 or more employees to give their employees 60 days' notice before engaging in certain plant closings or layoffs. If employees are represented by a union, the notice must be given to the union; if they are not, the notice must be given to the employees individually. The act covers the following actions: ○ Covers Plant closings (permanent or temporary with 50 or more employees losing jobs during a 30-day period) and mass layoffs (reduction in 33% of employees or at least 50 employees). Employer is exempt if the closing or layoff is caused by business circumstances that were not reasonably foreseeable at the time the notice would have been required, or if business was seeking capital or business, that if obtained would have been avoided or postponed the shutdown and the employer believed in good faith that giving notice would have precluded it from obtaining the needed capital.
bankruptcy exemptions
The bankruptcy code permits state to enact their own exemptions. States that do so may (1) give debtors the option of choosing between federal and state exemptions or (2) require debtors to follow state law. the exemptions available under state law are often more liberal than those provided by federal law.
Fair Use Doctrine
The following uses are protected under this doctrine: (1) quotation of the copyrighted work for review or criticism or in a scholarly or technical work, (2) use in a parody or satire, (3) brief quotation in a news report, (4) reproduction by a teacher or student of a small part of the work to illustrate a lesson, (5) incidental reproduction of a work in a newsreel or broadcast of an event being reported, and (6) reproduction of a work in a legislative or judicial proceeding. The copyright holder cannot recover for a copyright infringement where fair use is found.
termination of authority
The termination of an agency extinguishes an agent's actual authority to act on the principal's behalf. For proper notice of termination the principal needs to provide direct notice of termination to all persons with whom the agent dealt. notice may be oral or in writing. and give constructive notice of termination to any third party who has knowledge of the agency but with whom the agent has not dealt.
Race Discrimination
Title VII of the Civil Rights Act of 1964 was enacted primarily to prohibit employment discrimination based on a person's race and color. Title VII provides equal opportunity in employment for minority job applicants and minority employees seeking promotion. EEOC recognizes the following racial classifications: African American, Asian, Caucasian, Native American, Pacific Islander. racial discrimination in employment violates Title VII.
State and foreign commerce
U.S. constitution divides the power to regulate the internal affairs of this country between the federal and state governments. most of the power is given to the federal government. Any state that unduly burdens foreign commerce is unconstitutional.
Mean's test
a calculation that establishes a bright-line test to determine whether the debtor has sufficient disposable income to pay prepetition debts out of post petition income. disposable income is determined by taking the debtor's actual income and subtracting expenses for a typical family the same size as the debtor's family. Applies to a debtor who has a median family income that exceeds the state's median family income for families the same size as the debtor's family. A debtor in this category qualifies for chapter 7 bankruptcy if the debtor has disposable income below an amount determined by bankruptcy law, but does not qualify if he or she has disposable income above an amount.
Undisclosed Principal's liability
a contracting third party does not know of either the existence of the agency or the principal's identity. These are lawful. They are often used when the principal feels that the terms of the contract would be changed if the principal's identity where known. principal is liable to contract a. A wealthy buyer may use an undisclosed agency to buy a house because they think the seller will raise the price if they know who is buying.
Injunction
a court order that prohibits a person from doing a certain act. Requesting party must show that he or she will suffer irreparable injury if the injunction is not issued.
Due Diligence Defense
a defense to a section 11 (securities act) action that, if proven, makes the defendant not liable. a. To establish a due diligence defense, the defendant must prove that after reasonable investigation, they had reasonable grounds to believe and did believe that, at the time the registration statement became effective, the statements contained therein were true and there was no omission of material facts.
Registration Statement
a document that an issuer of securities files with the SEC and that contains required information about the issuer, the securities to be issued, and other relevant information. General form for registering is called Form S-1. must contain the descriptions of (1) the securities being offered for sale; (2) the registrant's business; (3) the management of the registrant, including compensation, stock options and benefits, and material transactions with the registrant; (4) pending litigation; (5) how the proceeds from the offering will be used; (6) government regulation; (7) the degree of competition in the industry; and (8) any special risk factors. Must also be accompanied by financial statements certified by certified public accountants. statements become effective 20 business days after they are filed unless the SEC requires additional information to be disclosed. a new 20-day period begins each time a registration statement is amended.
Equal Employment Opportunity Commission (EEOC)
a federal agency responsible for enforcing most federal antidiscrimination laws. members are appointed by the U.S. President. The agency is empowered to conduct investigations, interpret the statutes, encourage conciliation between employers and employees, and bring suits to enforce laws. investigate charges based on race, color, national origin, gender, religion, age, disability, and genetic information.
Age discrimination in Employment Act (ADEA)
a federal statute that was passed in 1967, prohibits age discrimination practices. protects employees who are 40 and older from job discrimination based on their age in hiring, promotions, payment of compensation, and other terms and conditions of employment. Older Workers Benefit Protection Act amended the ADEA to prohibit age discrimination with regard to employee benefits. persons under 40 are not protected by ADEA. employers can have policy of hiring only workers over 40. permits age discrimination where a bona fide occupational qualification is shown, such as young character in movie or play or an age limit for pilots.
Copyright
a legal right that gives the author of qualifying subject matter, and who meets other requirements established by copyright law, the exclusive right to publish, produce, sell, license, and distribute the work. Copyright is automatically granted the moment a work is created and fixed in tangible form.
H-1B Foreign Guest Worker Visa
a nonimmigrant visa that allows U.S. employers to employ in the United States foreign nationals who are skilled in specialty occupations. A foreign guest worker under an H-1B visa must have a bachelors degree or higher and a "specialty occupation", such as engineering, mathematics, computer science, physical sciences, or medicine. A foreign guest worker must be sponsored by a U.S. employer. Employers, not individual applicants, apply for H-1B visas for proposed guest workers. The number of visa is limited. visa holder are able to bring their immediate family members under the H-4 visa category as dependents. duration of stay is 3 years, which can be extended for another 3 years. During this time, employer may sponsor and H-1B holder for a lawful permanent resident status, and eventually U.S. citizenship if desired.
Independent Contractor
a person who contracts with another to do something for him who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. usually work with a number of clients, have their own offices, hire their own employees, control the performance of their work. Crucial factor in determining whether someone is an independent contractor or an employee is the degree of control that the principal has over that party. if principal exerts little control --> independent contractor.
Involuntary petitions
a petition that is filed by a creditor or creditors and places the debtor into bankruptcy. Can be filed in Chapter 7 (liquidation) and Chapter 11 (reorganization) cases; cannot be filed in chapter 12 (family farmer or fisherman) or chapter 13 (adjustment of debts) cases.
Termination of an Agency by Operation of Law
a situation where an agency terminates because of the occurrence of legally specified events. terminated by the following circumstances: the death of either the principal or the agent, the insanity of either the principal or the agent, bankruptcy of the principal, the outbreak of war between the principal's country and the agent's country. if terminated by operation of law, there is no duty to notify third parties about termination.
Agent's liability on contract
a. Fully Disclosed: contract is between the principal and the third party. principal is liable on the contract. agent is not liable. b. Partially Disclosed: both the agent and principal are liable on third-party contracts. third party must rely on agent's reputation, integrity, and credit because principal is unidentified. c. Undisclosed Agency: both principal and agent are liable on the contract with the third party, because agent becomes principal to the contract and third party relies on reputation of agent.
Classification of Agencies
a. Fully disclosed agency: a contracting third party knows that the agent is acting for a principal and the identity of the principal. b. Partially disclosed: a contracting third party knows that the agent is acting for a principal but does not know the identity of the principal. c. Undisclosed: a contracting third party does not know of either the existence of the agency or the principal's identity.
Purpose of Chapter 13 bankruptcy
adjustment of debts of an individual with regular income is a rehabilitation form of bankruptcy for individuals, permits a qualified debtor to propose a plan to pay all or a portion of the debts owed in installments over a specified period of time, pursuant to the requirements of chapter 13. The bankruptcy court supervises the debtor's plans for the payment. advantages of chapter 13 include avoiding stigma of chapter 7 liquidation, retaining more property than is exempt under chapter 7, and incurring fewer expenses than in a chapter 7 proceeding. Creditors may recover a greater percentage of the debts owed them than they would recover under a Chapter 7 bankruptcy. filed by debtors who do not qualify for chapter 7 and by homeowners who want to protect nonexempt equity on their residence. allows them to catch up on secured credit loans and avoid repossession and foreclosure.
Fiduciary Duties
agency relationship is based on trust and confidence, an agency owed the principal a duty of loyalty in all agency-related matters. an agent owes a fiduciary duty not to act adversely to the interests of the principal. if duty is breached, agent is liable to the principal.
The International Court of Justice
also called the World Court. located in The Hague, the Netherlands. It is the judicial branch of the UN. Only nations, not individuals or businesses, can have cases decided by this court. The ICJ hears cases that nations refer to it as well as cases involving treaties and the UN Charter. The nation may seek redress on behalf of an individual or a business that has a claim against another country. ICJ is composed of 15 judges who serve 9-year terms.
National Labor Relations Board (NLRB)
also known as the Wagner Act, enacted in 1935. establishes the right of employees to form and join labor organizations, to bargain collectively with employers, and to engage in concerted activity to promote these rights.
Termination of Agency
an agency contract can be terminated by act of the parties, by an unusual change in circumstances, by impossibility of performance, and by operation of law.
Agency Shop Agreement
an employer may hire anyone whether he or she belongs to a union or not. However, employees must at least pay an agency fee if not in the union to pay for the collective bargain benefits (prevents free loading) these are legal. nonunion employee cannot be assessed fees for non collective bargaining union activities such as political campaigning and the like.
Apparent Agency
arises when a principal creates the appearance of an agency that in actuality does not exist. The principal is estopped from denying the agency relationship and is bound to contracts entered into by the apparent agent while acting in the scope of the apparent agency.
bankruptcy courts
bankruptcy courts are part of the federal court system, and one bankruptcy court is attached to each of the 94 U.S. district courts in the country. Bankruptcy judges, specialists who hear bankruptcy proceedings are appointed for 14-year terms.
Bankruptcy Attorney Certification
bankruptcy law requires an attorney certification whereby an attorney who represents a client must certify the accuracy of the information contained in the bankruptcy petition and the schedules, under penalty of perjury. If any factual discrepancies are found, the attorney is subject to monetary fines and sanctions.
UN Security Council
composed of 15 Members: five permanent members: China, France, Russian Federation, the United Kingdom, and the United States, and ten non-permanent members elected for two-year terms by the General Assembly. Council is primarily responsible for maintaining international peace and security and has the authority to use armed force.
Sovereign Immunity
countries are granted immunity from suits in courts in other countries. Used to grant absolute immunity, but then switched to qualified immunity, or restricted immunity through Foreign Sovereign Immunities Act (FSIA). Exclusively governs suits against foreign nations in the United States, whether in federal court or state court.
automatic stay
filing of voluntary or involuntary petition --> the suspension of certain legal actions by creditors against a debtor or the debtor's property. designed to prevent a scramble for the debtor's assets in a variety of court proceedings. The following creditor actions are stayed: -instituting or maintaining legal actions to collect prepetition debts - enforcing judgements obtained against the debtor -obtaining, perfecting, or enforcing liens against the property of the debtor -nonjudicial collection efforts, such as self-help activities actions to recover domestic support obligations (alimony, child support), the dissolution of marriage, and child custody cases are not stayed in bankruptcy. criminal actions against debtor is not stayed.
Chapter 11 and Union Agreements
debtors that file for Chapter 11 reorganization sometimes have collective bargaining agreements with labor unions that require payment of agreed-on wages and other benefits to union member-employees for some agreed-on period in the future. debtors also often have contracts to pay union and nonunion retired employees and their dependents' medical, surgical, dental, and death benefits (retiree benefits). The debtor and the representatives of the union members and retirees can voluntarily agree to modification of the union collective bargaining agreement and retiree benefits. If such an agreement is not reached, the debtor must confer in good faith with the union and retirees' representative, but if a settlement cannot be reached, the debtor can petition the bankruptcy court to reject the union agreement or to modify retiree benefits. court can reject union contract or modify retirees' benefits if the court finds that the "balance of equities" favors rejection or modification and that it is necessary to the debtor's reorganization.
Norris LaGuardia Act
enacted in 1932, that makes it legal for employees to organize.
Family Medical Leave Act (FMLA)
enacted in 1993. Guarantees workers unpaid time off from work for family and medical emergencies and other specified situations. Applies to companies with 50 or more workers as well as federal, state, and local governments, covers about half of the nation's workforce. To be covered by the act, an employee must have worked for the employer for at least 1 year and must have performed more than 1250 hours of service during the previous 12-month period. employers required to provide up to 12 weeks of unpaid leave during any 12-month period due to: (1) The birth of and care for a child, (2) The placement of a child with an employee for adoption or foster care, (3) as serious health condition that makes the employee unable to perform his or her duties, (4) care for a spouse, child, or parent with a serious health problem Leave because of the birth of a child or the placement of a child for adoption or foster care cannot be taken intermittently unless the employer agrees to such an arrangement. an eligible employee who takes leave must, on returning to work, be restored to either the same or an equivalent position with equivalent benefits and pay. employee not entitled to the accrual of seniority during the leave period. covered employer may deny restoration to a salaried employee who is among the highest-paid 10% of that employer's employees if the denial is necessary to prevent "substantial and grievous economic injury".
Agency/ Statute of Frauds
express agency is the most common form of agency. It is an agency that occurs when a principal and an agent expressly agree to enter into an agency agreement with each other. can be either oral or written unless the Statute of Frauds stipulates that they must be written. If principal and an agent enter into an exclusive agency contract, the principal cannot employ an agent other than the exclusive agent.
1934 Securities Exchange Act
federal statute designed primarily to prevent fraud in the subsequent trading of securities. This act applied to prohibit insider trader and other frauds in the purchase and sale of securities in the aftermarkets, such as trading on securities exchanges and other purchases and sales of securities. The act also required continuous reporting - annual reports, quarterly reports, and other reports - to investors and the Securities and Exchange Commission (SEC). Securities that are sold online and on electronic stock exchanges are regulated by the 1934 act.
Lilly Ledbetter Fair Pay Act
federal statute that permits a complainant to file an employment discrimination claim against an employer within 180 days of the most recent paycheck violation and to recover back pay for up to 2 years preceding the filing of the claim if similar violations occurred during the 2 year period.
1933 Securities Act
federal statute that regulates primarily the issuance of securities by companies and other businesses. This act applies to the original issue of securities, including initial public offerings (IPO) by new public companies and the sale of new securities from existing companies. The primary purpose of this act is to require full and honest disclosure or information to investors at the time of the issuance of securities. The act also prohibits fraud during the sale of issued securities. Securities that are issued online are regulated by the 1933 act.
justifications for unequal pay
has 4 criteria a. Seniority b. Merit (so long as there is an identifiable measurement standard) c. Quantity or quality of product (commission, piecework, or quality-control-based payment systems are permitted). d. Any factor other than sex (shift differentials (night vs. day), etc) employer bears burden of proving these defenses
Right to Work Law
if enacted, individual employees cannot be forced to join a union or pay union dues and fees, even though a labor union has been elected by other employees. Many state governments and business support right to work laws to attract new businesses to a nonunion environment. erodes union power.
Americans with Disability Act (ADA)
imposes obligations on employers and providers of public transportation, telecommunications, and public accommodations to accommodate physically challenged individuals. A qualified individual with a disability is a person who can show that he or she has a disability in one of 3 ways: (1) a physically (physiological) or mental (psychological) impairment that substantially limits one or more major life activities, such as walking, talking, seeing, hearing, or learning, (2) a history of such impairment, such as cancer, (3) regarded as having such impairment even if he or she does not have the impairment. The person with a disability must, with or without reasonable accommodation, be able to perform the essential function of the job required. employer must make a reasonable accommodation to individual's disability as long as accommodation does not cause undue hardship on employer.
Pre and post petition counseling
individuals filing for bankruptcy must receive prepetition counseling within 180 days prior to filing a petition. This includes counseling on types of credits, the use of credit, and budget analysis. Counseling is to be provided by not-for-profit credit counseling agencies approved by the U.S. Trustee. Before an individual debtor receives a discharge for chapter 7 or 13 bankruptcy the debtor must receive postpetition counseling by attending a personal financial management course approved by the U.S. Trustee. This course is designed to provide the debtor with information on responsible use of credit and personal financial planning.
Chapter 7 bankruptcy
liquidation (also called straight bankruptcy) is a form of bankruptcy in which the debtor is permitted to keep a substantial portion of his or her assets (exempt assets); the debtor's non-exempt property is sold for cash, and the cash is distributed to the creditors; and any of the debtor's unpaid debts are discharged. The debtor's future income, even if the debtor becomes rich, cannot be reached to pay the discharged debt. A debtor would be left to start a life anre, without burden of prepetition debts.
Title VII of the 1964 Civil Rights Act
makes illegal job discrimination based on the following 5 protected classes: race, color, religion, sex, and national origin. shall be unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, etc. or (1) to limit, segregate, or classify his employees or applicant for employment in any way which would deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee, because of race, color, etc. Applies to employers with 15 or more employees, all employment agencies, labor unions with 15 or more members, state and local governments and their agencies, and most federal government employment. prohibits two major forms of discrimination: disparate treatment and disparate impact discrimination.
Trustee/Chapter 11
may be appointed in a Chapter 11 (reorganization) case on a showing of a fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by the current management. Often lawyers, accountants, business professionals, are entitled to receive reasonable compensation for their services and reimbursement for expenses. Once appointed, becomes the legal representative of the debtor's estate and has the power to sell and buy property, invest money and the like.
Permissive/compulsory terms of bargaining
negotiating terms of employment is collective bargaining. can be classified as compulsory subjects, permissive subjects, and illegal subjects. wages, hours, and other terms and conditions of employment are compulsory subjects. subjects that are not compulsory or illegal are permissive subjects, which may include the size and composition of the supervisory force, location of plants, corporate reorganizations, etc.
Disparate Treatment Discrimination
occurs when an employer treats a specific individual less favorably than other because of that person's color, race, national origin, sex, or religion. complainants must prove that (1) they are a member of a Title VII protected class, (2) they applied for and were qualified for the employment position, (3) they were rejected despite this, and (4) the employer kept the position open and sought applications from persons with the complainants' qualifications
Respondeat superior
principals are liable for the negligent conduct of agents acting within the scope of their employment. based on the common law doctrine of respondeat superior ("let the master answer"). a rule stating that an employer is liable for the tortious conduct of its employees or agents while they are acting within the scope of the employer's authority. In turn, based on vicarious liability (liability without fault), where principal is liable because of the employment contract with the agent, not because the principal was personally at fault.
Short Swing Profits
profits that are made by statutory insiders in trades involving equity securities of their corporation that occur within 6 months of each other. Section 16(b) of the Securities Exchange Act of 1934 requires that any profits made by a statutory insider on transactions involving short swing profits belong to the corporations. Involuntary transactions, such as forced redemption of securities by the corporations or an exchange of securities in bankruptcy proceeding are exempt. Section 16(b) is a strict liability provision.
Purpose of Chapter 11 bankruptcy
provides a method for reorganizing a debtor's financial affairs under the supervision of the bankruptcy court. The goal is to reorganize the debtor with anew capital structure so that the debtor emerges from bankruptcy as a viable concern. In the best interests of debtors and collectors. Available to partnerships, corporations, limited liability companies, and other business entities. Filed by corporations that want to reorganize their capital structure by receiving discharge of a portion of their debts and obtaining relief from burdensome contracts to emerge from bankruptcy as going concerns. Can also be filed by wealthy creditors that do not qualify for chapter 7 and 13 bankruptcy
A primary purpose of the new chapter 7 federal bankruptcy law
purpose of the 2005 act's changes to Chapter 7 was to force many debtors out of Chapter 7 liquidation bankruptcy into Chapter 13 debt adjustment bankruptcy; which requires debtors to pay some of their future income to pay off prepetition debts. Reduces the number of debtors who qualify for chapter 7 bankruptcy. Act added two tests: median income test and means test to determine whether they qualify for chapter 7.
Mitigation of Damages
the duty of the innocent non-breaching party to avoid or reduce damages caused by a breach of contract. a. Breaching of an employment contract: innocent party must accept a job offer if it is comparable. In this case, it would have to be in the similar location, same pay, position, etc. The remaining damages can be sued for.
homestead exemptions
the federal Bankruptcy Code permits homeowners to claim a homestead exemption of $23,675 in their principal residence. If the debtor's equity in the property (the value above the amount of mortgages and liens) exceeds the exemption limits, the trustee may sell the property to realize the excess value for the bankruptcy estate.
wrongful termination
the termination of an agency contract in violation of the terms of the agency contract. The nonbreaching party may recover damages from the breaching party.
Insider Trading
trading that occurs when an insider makes a profit by personally purchasing shares of a corporation prior to public release of favorable information or by selling shares of a corporation prior to the public disclosure of unfavorable information. important purposes of Section 10(b) and 10b-5 is to prevent insider trading.
secondary boycott/picketing
unions bring pressure against an employer by picketing the employer's suppliers or customers. lawful only if it is product picketing (picketing is against the primary employer's product). illegal if it is directed against the neutral employer instead of the struck employer's product.
Payment to unsecured creditors
unsecured creditor claims are to be satisfied out of the bankruptcy estate in the order of their statutory priority, as established by the bankruptcy code.
Dual Agency
when an agent acts for two or more different principals in the same transaction. This is generally prohibited unless all the parties involved in the same transaction agree to it. If an agent acts as an undisclosed dual agent, he or she must forfeit all compensation received in the transaction.
Workers compensation/third parties
workers compensation acts were enacted by states in response to the unfairness of that result. creates administrative procedure for workers to receive compensation for injuries that occur on the job. an injured workers files a claim with the appropriate state government agency (workers compensation board/commission). Entity then determines the legitimacy of the claim. Compensation benefits usually paid according to preset limits established by the statute or regulation, varies from state to state. States usually require workers to purchase workers' compensation insurance from private insurance companies or state funds to cover workers' compensation claims. Some states permit employers to self-insure if they demonstrate they have the ability to pay workers' compensation claims. workers compensation is an exclusive remedy, where workers cannot both receive compensation and sue their employers in court for damages. workers' compensation acts do not bar injured workers from suing responsible third parties to recover damages --> sue for injuries from defective machine at work.
Tangible Writings
writings that can be physically seen are subject to copyright registration and protection
Ratification
● A situation in which a principal accepts an agent's unauthorized contract - agent exceeds scope of authority. A principal is bound on the contract only if the principal ratifies the contract—that is, accepts it as his or her own. This is called ratification of a contract. ● If an agent secures a contract without the principal's authority, the principal can only ratify and accept contract -- but then they owe compensation to the agent.
Principal's Duties
● Duty to compensate an agent for services provided. a duty that a principal owes to pay an agreed-on amount to the agent either upon the completion of the agency or at some other mutually agreeable time. If no fee is agreed upon, fair industry pay is still expected. Contingency fee deals can also be made (you get x if you complete y) ● Principal's Duty to Reimburse the agent for all such expenses if they were: Authorized by the principal, Within the scope of the agency, Necessary to discharge the agent's duties in carrying out the agency ● Principal's duty to indemnify the agent for any losses the agent suffers because of the principal's conduct. This duty usually arises when an agent is held liable for the principal's misconduct. ● Unless otherwise agreed, Principal's duty to cooperate with and assist the agent in the performance of the agent's duties and the accomplishment of the agency.
