Business Law 3

Strikes, Pickets, and Boycotts

A strike is a temporary, concerted withdrawal of labor. A picket is designed to inform the public, usually through public demonstration and/or speech, of a labor dispute. A boycott represents the refusal to deal with, purchase goods from, or work for a business.

Elements of Causation

Actual Cause Proximate Cause

Which of the following applies to cases in which the defendant has violated a statute enacted to prevent a certain type of harm from befalling a specific group to which the plaintiff belongs?

Negligence per se.

What type of torts occur when the defendant is careless and acts in a way that subjects other people to an unreasonable risk of harm?

Negligent

Peter brings in a baseball bat to hit Mary because he is mad at her. When he arrives, Mary is sleeping. He lines up the baseball bat with her head and whispers that he is about to take a swing. She does not wake up, and before he hits her, he changes his mind and quietly leaves before Mary realizes he has arrived. Mary later finds out and sues for assault. Is she successful?

No, because she was sleeping and thus not in fear of apprehension of an immediate offensive bodily contact.

Pregnancy Discrimination Act of 1987

Amended Title VII of the Civil Rights Act by expanding definition of sex discrimination to include discrimination based on pregnancy

Matt intends to throw a rock at Jamal and hit Jamal in the head. Jamal is standing directly next to Sally. Matt hits Sally in the head instead of Jamal. What type of tort did Matt commit against Sally?

An intentional tort because Matt intended to throw the rock and physical injury resulted.

Which of the following is a doctrine available to defendants whereby a defendant may avoid liability by establishing that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm that the defendant caused?

Assumption of the risk doctrine.

Purposes of Tort

Compensate innocent injured persons. Prevent private retaliation by injured parties. Reinforce vision of a just society. Deter future wrongs.

The primary type of damages in tort law is referred to as _____.

Compensatory damages

4 Elements of Negligence

Duty: This is the standard of care a reasonable person owes another, i.e., the reasonable person standard. Breach of duty: This is the failure to live up to the standard of care. Causation: There is actual cause and proximate cause. Damages: These are the compensable loss suffered by the plaintiff.

Which of the following is an example of an inherently dangerous activity?

Dynamite blasting in a populated area.

Family and Medical Leave Act (FMLA)

Federal act requiring that certain employers establish a policy that provides all eligible employees with up to 12 weeks of leave during any 12-month period for several family-related occurrences Birth or adoption of child Foster child Care of seriously ill spouse, parent, or child Serious health condition that renders employee unable to perform any essential functions of job After leave, employee returned to same or similar position Does not require employee to be paid, does require continuation of health benefits

Negligence

behavior that creates an unreasonable risk of harm to others, i.e., the failure to exercise reasonable care to protect another's person or property.

Good Faith Requirements of National Labor Relations Act

both employer and employee representatives must meet at reasonable times and confer in good faith, sign a written agreement if one is reached, give 60 days' notice to the other party when intent on terminating or modifying an existing contract (with an offer to confer over proposals), give 30 days' notice to federal or state mediation services in the event of a pending dispute over a new agreement, and neither strike nor engage in a lockout during a 60-day notice period.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

ensures that when employees lose their jobs or have their hours reduced to a level where they are not eligible to receive medical, dental, or optical benefits from their employer, employees have the right to continue receiving benefits under the employer's policy for up to 18 months by paying the premiums for the policy. COBRA does not apply if the employee was fired for gross misconduct or if the employer decides to eliminate benefits for all current employees.

Which statement is true regarding the intent required for an intentional tort?

The intent at issue is not intent to harm but, rather, is intent to engage in a specific act, which ultimately results in a physical or economic injury to another.

True or False: Proving that consent occurred is a defense to battery.

True

Employer Rights and Responsibilities: Foreign Workers

Until 1986, there was virtually no risk for employers who hired undocumented immigrants. But beginning that year, Congress passed the Immigration Reform and Control Act. This act requires employers to verify the identity and eligibility of all individuals hired in the United States after November 6, 1986. The federal agency responsible for immigration worksite enforcement is Immigration Customs and Enforcement (ICE). If it is discovered that an employer knowingly employed undocumented immigrant workers, that employer will be in serious legal trouble. Employers are required to confirm work authorization. Additionally, employers are required to retain documentation for a period of at least three years from the date of hire or one year after the employee is no longer employed, whichever is longer. Employers who fail to comply with the laws regarding the hiring of foreign workers will risk criminal and civil sanctions

Which of the following is generally true regarding a storekeeper who detains a suspected shoplifter?

When a retailer has a reason to believe that a person is guilty of shoplifting, the store may question the person about said shoplifting in a reasonable manner and for a reasonable length of time.

Workers' Compensation Laws

are state laws that provide financial compensation to employees or their dependents when a covered employee is injured or killed on the job. To recover workers' compensation benefits, an injured party must demonstrate that he or she is an employee, that both the employer and the employee are covered by the state workers' compensation program, and that the injury occurred on the job.

Title VII of the Civil Rights Act (1964, Amended 1991)

as amended by the Civil Rights Act of 1991, protects employees against discrimination based on race, color, religion, national origin, or sex.

Employment Discrimination Internationally

extended the protections of Title VII and the Americans With Disabilities Act to United States citizens working abroad for U.S. employers. These laws also apply to foreign corporations controlled by a U.S. employer.

Employment-at-Will

means that any employee not employed under a contract or collective bargaining agreement may quit for any reason or no reason at all, with no required notice to the employer. It also means an employer may fire an employee at any time, with no notice, and for virtually any reason.

Actual Cause

or cause in fact, means that the defendant's breach of duty resulted directly in the plaintiff's injury; in other words, "but for" the defendant's breach of duty, the plaintiff would not have been injured

Proximate Cause

or legal cause, is the extent to which, as a matter of policy, a defendant may be held liable for the consequences of his actions; it exists in most states if the plaintiff and plaintiff's damages were reasonably foreseeable when the defendant breached his duty to plaintiff.

Occupational Safety and Health Act of 1970 (OSHA)

requires every employer to "furnish to each of his employees . . . employment . . . free from recognized hazards that are likely to cause death or serious physical harm." The Occupational Safety and Health Administration is responsible for setting safety standards under OSHA and for enforcing the Act through inspections and levying of fines against violators.

Kyle plans to punch Patrick. He calls Patrick and tells him he will punch him tomorrow at 4:00 PM. At 2:00 PM the next day, Kyle sneaks up behind Patrick. Patrick does not see Kyle coming, but Kyle punches him in the back of the head. What torts did Kyle commit?

Battery only.

Why has the contributory negligence defense been replaced with a comparative negligence theory in most states?

Because of situations in which a plaintiff is barred from recovery due to minimal contributory negligence.

What of the following is true of a negligence tort?

A defendant commits a negligence tort when he is careless to someone else's detriment.

Breach of duty in a negligence case refers to________?

A failure to live up to the standard of care a reasonable person owes to others.

Types of Torts

Intent, Negligence, and Strict Liability

Jacob calls Nick on the telephone and threatens to come over and break his nose. Which of the following is true?

Jacob's conduct does not constitute an assault because there is no risk of immediate bodily harm.

May a BFOQ Be Based on

Race? No Sex (i.e., gender)? Yes Religion? Yes Color? No National origin? Yes Customer preference?No Exception: Sexual privacy

Plaintiff's Doctrines

Res ipsa Loquitur Negligence per se

Employee Retirement Income Security Act (ERISA)

is a federal law that sets minimum standards for most voluntarily-established pension and health plans in private industry to provide protection for individuals enrolled in those plans. Under ERISA, employers must provide pension and health plan participants plan information, assurances of fiduciary responsibility of those in charge of managing and controlling plan assets, a grievance and appeals process for participants claiming plan benefits, and the right to sue for benefits and breaches of fiduciary duty.

3 Types of Damages available in Tort Cases

Compensatory Nominal Punitive

Nominal Damages

(a minimal amount that signifies defendant's behavior was wrongful, but caused no harm)

Tort

A wrong or injury to another, other than a breach of contract

Which of the following is not an example of a situation where a duty of care exists.

When you walk by a stranger who is drowning in a lake in your neighborhood.

Wage and Hour Laws

are federal and state laws that impose minimum wage and hour requirements for employees.

Compensatory Damages

(designed to make the plaintiff whole, i.e., to put the plaintiff in the same position he or she would have been in had the tort not occurred)

Punitive Damages

(designed to punish the defendant and to deter such wrongful conduct in the future)

Negligent Tort

-occurs when a defendant acts in a way that subjects other people to unreasonable risk of harm.

Intentional Tort

-occurs when a defendant takes action intending certain consequences or knowing they are likely to result.

Strict Liability

-occurs when a defendant takes action that is inherently dangerous and cannot ever be undertaken safely.

True or False: A plaintiff in a negligence lawsuit may choose whether the plaintiff wishes pure comparative negligence or modified comparative negligence rules to be applied by the court.

False

True or False: When a plaintiff uses res ipsa loquitor, the plaintiff must show direct evidence of the defendant's lack of due care to prove the defendant's negligence was the cause of harm.

False

Disparate-Treatment versus Disparate-Impact Discrimination

In all aspects of human resource management, including, hiring, firing, pay, and promotions, if a prospective employee or current employee is discriminated against based on membership in a protected class, the employee has an actionable claim based on intentional discrimination, also known as disparate-treatment discrimination. Disparate-impact discrimination, also referred to as unintentional discrimination, occurs when a plaintiff establishes that while an employer's policy or practice appears to apply to everyone equally, its actual effect is to disproportionately limit employment opportunities available to a protected class.

Requirements: Establishing Disparate-Treatment Discrimination Case

In establishing a discrimination case, the plaintiff-employee must first demonstrate a prima facie case of discrimination. To counter the plaintiff-employee's prima facie case, the defendant-employer must articulate a legitimate, nondiscriminatory business reason for the action. The plaintiff-employee must then demonstrate that the reason given by the defendant-employer is a mere pretext.

Kim negligently hits Lennithia with her car. Which of the following is true?

Kim has a duty to come to the aid of Lennithia because she negligently hit her.

Which of the following is a doctrine that allows the plaintiff to recover damages despite proof of contributory negligence, as long as the defendant had a final clear opportunity to avoid the action that injured the plaintiff?

Last-clear-chance doctrine.

Labor Laws

The Wagner Act was enacted to encourage the formation of labor unions and to provide for collective bargaining. Collective bargaining covers negotiations between an employer and a group of employees to determine the conditions of employment. The Taft-Hartley Act, also known as the Labor Management Relations Act, was designed to limit some of the powers unions had acquired under the Wagner Act. The Taft-Hartley Act was an amendment to the Wagner Act, and collectively, these two pieces of legislation are referred to as the National Labor Relations Act. The Landrum-Griffin Act of 1959 governs the internal operations of labor unions. The act requires certain financial disclosures by unions and establishes civil and criminal penalties for financial abuses by union officials. "Labor's Bill of Rights" (contained in The Landrum-Griffin Act) is designed to protect employees from their own unions. The National Labor Relations Board, or NLRB, was created by the Wagner Act. It is an administrative agency formed to interpret and enforce the National Labor Relations Act. Primary functions of the NLRB include monitoring the conduct of the employer and the union during an election, to determine whether workers in fact want to be represented by a union, preventing and remedying unfair labor practices by employers and unions, and establishing rules to interpret the National Labor Relations Act

Employee Privacy in the Workplace

cover matters such as employer surveillance policies, control of access to medical and personnel records, drug testing, and e-mail policies. Pursuant to The Omnibus Crime Control and Safe Streets Act of 1968, employers cannot listen to private telephone conversations of employees or disclose the content of those conversations. Employers may ban personal calls and monitor calls for compliance, provided that they discontinue listening to any conversation once they determine it is personal. Violators may be subject to fines of up to $10,000. According to the Electronic Communications Privacy Act (ECPA) of 1986, employees' privacy rights extend to electronic forms of communication, including e-mail and cellular phones. The ECPA outlaws intentional interception of electronic communications, and the intentional disclosure and/or use of information obtained through such interception.

Fair Labor Standards Act (FLSA)

covers all employers engaged in interstate commerce. The FLSA requires that a minimum wage of a specified amount be paid to all covered employees, and the amount is periodically raised by Congress.

Federal Unemployment Tax Act (FUTA)

created a state system that provides unemployment compensation to qualified employees who lose their jobs. Under this law, employers pay taxes to the states, which deposit the money into the federal government's Unemployment Insurance Fund. Each state has an account from which it can access money in accordance with state eligibility rules. States have different minimum standards for qualifying for unemployment compensation, although most require that the applicant did not voluntarily quit or get fired for cause. Most states fund benefits through a tax on employers; only three states require minimal employee contributions. The amount of the benefit may also vary.

Strict Liability Doctrine

imposes liability without fault. In other words, strict liability requires no evidence of the defendant's intent to harm, or the defendant's negligence. Persons who engage in activities so inherently dangerous that no amount of due care can make their activities safe (such as transportation of toxic waste) are strictly liable, regardless of the degree of care they used when undertaking the activities.

Intentional Torts Against Persons

include assault, battery, defamation (defamation in publications is known as libel, and spoken defamation is known as slander), invasion of privacy (false light, public disclosure of private facts, appropriation for commercial gain, and intrusion on an individual's affairs or seclusion), false imprisonment, intentional infliction of emotional distress, and misuse of legal procedure.

Intentional Torts Against Economic Interests

include disparagement, intentional interference with contract, unfair competition, misappropriation, and fraudulent misrepresentation.

Defenses to Claims Under Title VII of The Civil Rights Act

include the defenses of bona fide occupational qualification, merit, and seniority. A bona fide occupational qualification, or BFOQ, allows an employer to discriminate in hiring on the basis of sex, religion, or national origin (but not race or color) when doing so is reasonably necessary for the successful performance of a job. With a legitimate merit system, pay and promotion decisions are tied directly to employee performance. With a legitimate seniority system, pay and promotion decisions are based on the length of time the employee has worked for the company. A seniority system is legitimate if the system applies equally to all persons, seniority units follow industry practices, the seniority system did not have its genesis in discrimination, and the system is maintained free of any illegal discriminatory purpose.

Intentional Torts Against Property

include trespass to realty, private nuisance, trespass to personal property, and conversion.

Procedure for Filing a Claim under Title VII of the Civil Rights Act

includes the filing of a charge with the Equal Employment Opportunity Commission, EEOC conciliation attempts, and the EEOC's issuance of a right-to-sue letter.

Sexual Harassment

includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that implicitly or explicitly makes submission a term or condition of employment; makes employment decisions related to an individual dependent on the individual's submission to such conduct (known as quid pro quo sexual harassment); or has the purpose or effect of creating an intimidating, hostile, or offensive work environment (known as hostile work environment sexual harassment).

Employment-at-Will Doctrine

permits an employer to fire an employee for any reason, or for no reason at all. Exceptions to the employment-at-will doctrine include breach of an implied contract, violation of public policy, and breach of the implied covenant of good faith and fair dealing. In states that have adopted any or all of these three exceptions, employees may be able to sue for wrongful discharge.

Equal Pay Act of 1963

prohibits an employer from paying workers of one sex less than the wages paid to employees of the opposite sex for work that requires equal skill, effort, and responsibility. Defenses to an Equal Pay Act lawsuit include a bona fide seniority system, a bona fide merit system, a pay system based on the quality or quantity of production, and any other legitimate factor.

Americans with Disabilities Act (ADA)

prohibits discrimination against employees and job applicants with disabilities. A disabled individual is defined for the purposes of the Americans With Disabilities Act as a person who has a physical or mental impairment that substantially interferes with one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. In order to bring a successful claim under the Americans With Disabilities Act, the plaintiff must demonstrate that he or she had a disability, is otherwise qualified for the job, and was excluded from the job because of disability.

Age Discrimination in Employment

prohibits employers from refusing to hire, discharging, or discriminating in the terms and conditions of employment on the basis of an employee or applicant being 40 years old or older. To prove a prima facie case of age discrimination involving termination of employment, the plaintiff must establish facts sufficient to create a reasonable inference that age was a determining factor in his or her termination. The plaintiff raises such an inference by demonstrating that he or she was 40 years of age or older at the time of the termination, was qualified for the employment position, and was terminated from the employment position under circumstances giving rise to an inference of discrimination.

Federal Employment Laws

provide a minimum level of protection for employees. States may give employees more rights, but not less rights, than they have under federal law.

Disparate Treatment and Disparate Impact: Burden-Shifting

the initial burden of proof on the employee-plaintiff is to demonstrate a prima facie case of discrimination. The burden then shifts to the employer-defendant to articulate a legitimate, nondiscriminatory business reason for the action. The employee-plaintiff must then demonstrate why the reason given by the employer is a mere pretext. In a disparate impact (unintentional discrimination) case, the initial burden of proof on the employee-plaintiff is to establish statistically that a rule restricts employment for those in a protected class. The burden then shifts to the employer-defendant to articulate why the policy or practice is a business necessity. The employee-plaintiff must then demonstrate that the alleged business necessity is mere pretext.

Res ipsa loquitur

the judge and jury are allowed to infer that the defendant's negligence caused the plaintiff's harm, in certain cases where there is no direct evidence of the defendant's lack of due care. A res ipsa case requires the following proof: First, the event was of a kind that ordinarily does not occur in the absence of negligence; second, other responsible causes, including the conduct of third parties and the plaintiff, have been effectively ruled out; third, the indicated negligence was within the scope of the defendant's duty to the plaintiff.

Negligence per se

the plaintiff is permitted to prove negligence by offering evidence of the defendant's violation of a statute enacted to prevent a certain type of harm.

Defenses to Negligence

theories of contributory negligence, comparative negligence, and assumption of the risk. With contributory negligence, the defendant can avoid liability by demonstrating that the plaintiff's own conduct contributed to the plaintiff's harm. With comparative negligence, liability is apportioned between the plaintiff and the defendant according to the degree of responsibility each bears for the plaintiff's harm, and the plaintiff's recovery is reduced by the plaintiff's degree of responsibility for his or her own harm. The defense of assumption of the risk allows the defendant to avoid liability by showing that the plaintiff willingly engaged in an activity involving foreseeable harm. Special defenses to negligence include Good Samaritan statutes (people in peril who receive voluntary aid from others cannot hold the others liable) and establishing a superseding cause (an unforeseen event that interrupts the causal chain between the defendant's breach of duty and the damages the plaintiff suffered).