Business Law Final Exam Vocabulary, Cases, and Questions
What parts of computer code can be copyrighted?
"high-level" language of a source code, binary language object code, overall structure, sequence and organization Does not extend copyright protection to the "look and feel" but these can be infringements of trademark or trade dress laws
What is Constructive Discharge and when is it used?
It is when the employee left because the employer made the working conditions so intolerable that the employee had to quit Employer must have: Caused the condition Known or should have known about the condition Ex: Sexual Harassment
What is Ratification of an Agent's Authority and when does it happen?
It occurs when the principal affirms or accepts responsibility for an agent's *unauthorized* act Principal is then bound, can be express or implied
What is exclusive agency?
The principal cannot compete with the agent or appoint or allow another agent to compete Otherwise, principal is liable for agent's lost profits
What do striking workers lose the right to?
The rights to be paid Management loses production
What is a Domain Name?
The series of letters and symbols used to identify a site operator on the Internet; Internet "address" First-level and second-level By using similar ones, some companies try to profit from bigger companies' goodwill
What is Patent Infringement?
The use of another's patent; do not have to copy all of patent or copy it exactly Gives rise to Patent Trolls who go after software patents
What are Affirmative Action programs?
They are Job-hiring policies that give special consideration to members of protected classes in order to make up for past discrimination
What must the plaintiff prove in age discrimination?
They are protected and qualified, and they were discharged *SOLELY* because of their age, replacement must be younger Must show for every "pretext" that the employer offers that this was not the real reason
Does retaliation protection extend to others related to someone who files discrimination claims?
Yes, if person works for same company Ex: Me getting fired after my wife files a discrimination complaint against our emploeyr
Can E-Agents enter into binding contracts for the principals?
Yes, if the state has UETA and if the E-Agent provides an opportunity to prevent errors at the time of the transaction (A Review & Submit order Screen)
If the principal is partially disclosed, is the agent liable for the contract?
Yes, in most states
Has the U.S. Supreme Court limited the rights of employees to bring discrimination claims in class-action suits against their employers?
Yes, it is really hard to bring a class-action lawsuit against the employer
If there are mitigating measures against a disability, can an employer avoid liability?
Yes, like if someone has bad eyesight but could go get glasses
Are private employers free to use filtering software to block access to certain Web sites?
Yes, only Government employers cannot
If the principal is *undisclosed*, are the principal and agent liable for the contract?
Yes, they both are
Are agents' innocent misrepresentations grounds for recession and damages, and is the principal liable?
Yes, third party can get damages Principal is liable if the knows of the misrepresentation but is silent on it
Can foreign firms apply for and obtain U.S. patent protection on what they sell in the United States?
Yes; and it works the same for American companies selling in foreign markets
Are Trade Secrets protected on Companies' private social Media or Intranets?
Yes; can protect it with secure groups based on rank Also provide real-time updates on what is going on in the company without sending mass emails
Can you license a domain name or trademark?
Yes; common in software like Google Play
What is the minimum wage under FLSA?
$7.25 Do breaks count?
What are the requirements for Ratification?
1. Agent must act on behalf of principal who ratifies 2. Principal must know all material facts 3. Principal must affirm agent's act in entirety 4. Principal must have legal capacity to authorize the transaction at the time the agent engages and at time of ratification. 5. Third party must have legal capacity to engage in transaction 6. Principal must observe the same formalities that would have been required initially
What are the ways that an agency can relationship can form?
1. Agreement of the Parties- express written contract or oral agreement, or implied conduct 2. Ratification- If someone who is not an agent or who is but is acting outside the scope of the agency makes a contract on behalf of the other, the principal can ratify it by words or conduct 3. Estoppel- When a third person believes that another is the principal's agent, and the person acts to his or her detriment on that reasonable belief, principal is estopped to deny the agency relationship 4. Operation of Law- in absence of formal agreement, in cases of usually spouses paying in the name of the other, or in emergencies when principal cannot be contacted and it would mean a bad loss for the principal, agent may step beyond usual authority Ex: railroad engineer may contract on behalf of his or her employer for medical care for an injured motorist hit by the train
What are the defenses of the employer to Employment Discrimination?
1. Business Necessity- practice that discriminates is related to job performance (Ex: international business requires multiple language fluency) 2. Bona Fide Occupational Qualification- can be gender, national origin, and religion; Cannot be race or color (Ex: only female attendants for female dressing rooms) 3. Seniority System (Ex: Promoted first or laid off last if more senior) 4. If they took action to prevent or help and the employee did not use these resources
What are the two ways that an Agency can be terminated?
1. By an act of the parties 2. By operation of Law
In the determination of a person as an employee or independent contractor, what is at stake?
1. Can affect employer's liability for the worker's actions. 2. If they have to pay certain taxes such as Social Security and unemployment
What are the situations that fall under the FMLA for twelve weeks of leave in a twelve month period?
1. Child birth 2. Care for adopted or foster child 3. Spouse, child, or parent with serious health condition 4. Employee suffers from debilitating health condition 5. Any nonmusical emergency from the employee's family being active duty military -employee taking time off to coordinate support before spouse is deployed
What are the duties of the Principal?
1. Compensation for agreed-on or reasonable services 2. Reimbursement and Indemnification (compensate) for any necessary expenses -cannot recover expenses from their own misconduct or negligence -indemnification is if I as your agent make a contract for you and you don't perform and I get sued, you would compensate 3. Cooperation in the agent performing the duites 4. Safe working conditions
What are the Principal's Rights and Remedies against the agent?
1. Constructive Trust- anything agent obtains by the relationship is the principal's property 2. Avoidance-when agent breaches duties, the principal has the right to avoid any contract entered into with the agent 3. Indemnification-principal can sue the agent if the principal gets sued by a third party for an agent's negligent conduct or if the agent violated the principal's instructions (hard to distinguish though between instructions and advice, and if there is a new situation)
What are exceptions to the equal dignity rule?
1. Corporate officers can conduct ordinary business w/o express written authroity 2. When the agent acts in the presence of the principal 3. When the agent's signing is merely a formality, then the agent does not need written authority to sign
What are the remedies for violating FMLA?
1. Damages for lost wages, benefits, and actual monetary losses 2. Job reinstatement 3. Promotion if a promotion has been denied 4. Court costs and attorney fees If employer acted in bad faith, double damages Supervisors count as employers Employers must notify. employees when their absence is against FMLA leave
What kinds of Operations of Law can terminate an Agency relationship?
1. Death or Insanity 2. Impossibility - specific subject matter destroyed 3. Changed Circumstances - Ex: I hire John to sell my land for $50k, but then I find oil that makes the land worth $10 mil. It changes the circumstances of the subject matter so much that the agent can *reasonably infer* that the principal will not want the agency to continue 4. Bankruptcy - usually unless financial status of the agent is not a part of the deal (Insolvency does NOT terminate relationship) -Insolvency is a state of financial distress -Bankruptcy is a court order that sets forth how an insolvent person will deal out debts going forth 5. War - principal and agent's countries go to war with each other
What are the requirements for receiving Workers' Comp?
1. Existence of employer-employee relationship 2. Accidental injury that occurred on the job or in the course of employment, regardless of fault. (injury to and from work is not covered) 3. Injured employee must notify employer promptly (30 days) 4. Employee must file Workers' Comp claim in a certain period (60 days to 2 years) from when the injury is first noticed
Can employers give drug tests?
1. Gov can for transportation workers, and whenever drug use in a job may threaten public safety, and if it is a reasonable search 2. Private employers are governed by state law and under this they usually can in a restricted way, usually hinges on whether the test was reasonable
What criteria do the courts use to determine if someone is an employee or an independent contractor?
1. How much control does the employer exercise over the details of the work? 2. Is the worker engaged in an occupation or business distinct from that of the employer? 3. Is the work usually done under the employer's direction or by a specialist without supervision? 4. Does the employer supply the tools at the place of work? 5. For how long is the person employed? 6. What is the method of payment- by time period or at completion of the job? 7. What degree of skill is required of the worker?
What does the Immigration Reform and Control Act do? (IRCA)
1. Illegal to hire, recruit, or refer for a fee someone who is not authorized to work. (ICE raids) 2. Employer must complete I-9 verifications for new hires if they are under the employers direct supervision within 3 days of the start of employment 3. Employer must declare that employee produced documents establishing identity and employability -Employer can get hit for negligence here 4. Establishes penalties for employers who hire unauthorized workers Immigrations and Custom Enforcement (ICE) does this work
What are the remedies for Patent Infringement?
1. Injunction 2. Damages for royalties and lost profits 3. Reimbursement for legal fees 3. If it was willful, court can triple damages Must prove a lot to get permanent injunction, like suffering irreparable damage and that the public interest would be dissolved if no permanent injunction was issued
What is the heart of agency law?
A fiduciary, a person having a duty created by his or her undertaking to act primarily for another's benefit in matters connected to the undertaking
"Old" Business Case Problem 8-7: Briefing.com offers investment analysis to investors. Green is the company's owner. There is a competing company, StreetAccount, that is owned by Dietzmann and Jones. Dietzmann used to work for Briefing.com. Dietzmann took contacts from Briefing.com and did not return them when she quit. Green and Briefing.com filed suit against Jones, Dietzmann, and StreetAccount for appropriation of trade secrets. 1. What are trade secrets? 2. Why are they protected? 3. Under what circumstances is a party liable at common law for their appropriation? 4. How should these principles apply in this case?
1. It is information of commercial value, such as customer lists, plans, and R&D anything that makes an individual company unique and would have value to a competitor 2. They are protected because they are valuable to a business's success 3. Those who disclose or use another's trade secret are liable if they discovered it by improper means or the disclosure or use constitutes a breach of duty owed to the other party 4. Dietzmann willfully did not return the contacts and so is guilty of appropriation
What are the ways that Agency can be terminated by acts of the parties?
1. Lapse of Time-end of the stated time 2. Purpose Achieved 3. Occurrence of a Specific Event - Ex: when the principal returns from a trip 4. Mutual Agreement 5. At the Option of One Party - Revocation if by principal; renunciation if by agent
What are the Categories of Protected Works For copyrights?
1. Literary works 2. Musical works and accompanying words (including advertising jingles) 3. Dramatic works and accompanying music 4. Pantomimes and choreographic works (ballets) 5. Pictorial, graphic, and sculptural works (even stuffed animals) 6. Motion pictures and other audiovisual works 7. Sound recordings 8. Architectural works
What situations under FMLA provide for 26 weeks of leave in a twelve month period?
1. Military Caregiver Leave to care for family member with a serious injury or illness incurred because of military duty
What are the benefits and protections of FMLA?
1. Must continue health-care coverage 2. Must be restored to original position or comparable position Exception: key employee does not have to be reinstated (employee whose pay falls within top 10% of the firm's workforce)
What responsibility does an employer have in regards to an employee's religious rights?
1. Must make *Reasonable Accommodations* to sincere beliefs unless it would cause an *undue hardship* on the business
What must a plaintiff show in a disparate-impact case?
1. Must show employer's practices are effectively discriminatory
What are the 4 major Union laws?
1. Norris-LaGuardia Act - protection of peaceful strikes, picketing, and boycotts, right to organize 2. National Labor Relations Act - establishes unfair employer practices -stopping employees from forming a union -Employer dominates the labor union or controls it -Discrimination against employees who file charges or give testimoney -Refusal to bargain collectively with the representatives fo the employees National Labor Relations Board may issue cease-and-desist order to employer, can be enforced Good Faith Bargaining Employees and job-applicants covered by NLRA as well as union organizers, even temps sometimes 3. Labor-Management Relations Act - prohibits firm that requires union membership as a condition of employment (closed shop); allows for union shop that requires union membership after a period of time -unions cannot picket in certain ways 4. Labor-Management Reporting and Disclosure Act- employee bill of rights and reporting requirement s for union activities; outlaws hot-cargo agreements; unions must have regular elections and former convicts cannot hold union office
What are duties of the agent?
1. Performance with diligence and skill 2. Notification on all matters that concern the subject of the agency 3. Loyalty to act solely for the principal's benefit 4. Obedience to instruftions 5. Accounting for all things paid and received on principal's behalf
What does the Immigration Act of 1990 do?
1. Places cap on visas issued (permanent and temporary)
What are the requirements to make a claim for trademark dilution?
1. Plaintiff owns a famous, distinctive mark 2. Defendant has begun using the mark in commerce that allegedly is diluting the famous mark 3. The similarity b/w the defendant's mark and the famous mark give rise to an association b/w the marks 4. The association is likely to impart the distinctiveness of the famous mark or harm its reputation Ownership, Action, Similarity, Harm
What are the two ways of showing that there is disparate-impact discrimination?
1. Pool of Applicants - plaintiff must show that as a result of job requirments or hiring procedures, the percentage Protected Classes of the employer's workforce does not reflect the percentage of Protected Classes in the pool of Qualified Applicants 2.Rate of Hiring- if some procedure in the process produces a rate of passes for a protected class that is less than 80% of the rate at which a group with the highest rating is passed, it is discriminatory Ex: if 50% of Whites pass, but only 20% of Blacks pass
What procedures do courts use to resolve disparate-treatment cases?
1. Prima Facie *can also apply to being fired -Must show member of protected class -employee applied and was qualified -employee was rejected -employer continued to seek applicants or filled position with someone who was not in a protected class Employee will win in absence of legally acceptable employer defense 2. Burden-shifting Procedure -Once prima-facie is established, employer must provide reasoning for action -If employer provides legally valid reason, burden shifts back to employee who now must show that the employer's reason is a *pretext* or not the true reason for the action, and was actually discrimination
What are the two forms of sexual harassment?
1. Quid pro Quo 2. Hostile-Environment-employer allows it
What are the Agent's rights and remedies against the principal?
1. Remedies follow normal contract and tort remedies 2. Agent can withhold performance and demand the principal give an accounting Ex: Sales agent dean an accounting if the agent and the principal disagree on payment 3. When the principal-agent relationship is not contractual, agent has no right to specific performance -can recover for past and future damages, but cannot force principal to allow him or her to continue being the principal's agent
What are copyright owners protected against?
1. Reproduction of the work 2. Development of derivative works 3. Distribution of the work. 4. Public display of the work
What are the different types of distinctiveness in Trademarks and what protection do they receive?
1. Strong Marks- Arbitrary, Fanciful, and Suggestive Marks receive automatic protection because they identify the source, and *not the product itself* e.g. Nike, Dairy Queen, Xerox, Google 2. Secondary Meaning-Descriptive Terms, Geographic Terms, and Personal names are not inherently distinctive and do not receive protection until they acquire a secondary meaning, a secondary meaning is associating a term or phrase with trademarked items e.g. Notre Dame Gold and Blue 3. Generic Terms-receive no protection, even if they acquire secondary meanings, can become extremely generic over time like aspirin or thermos; just because term is commonly used does not mean it is generic (e.g. I will google it)
What were the acts that applied to regulation of wages and working hours?
1. The Davis-Bacon Act - contractors and subcontractors to fed gov must pay "prevailing wages" 2. The Walsh-Healey Act - In U.S. government contracts, employees of suppliers and manufacturers must get a minimum wage and overtime pay 3. The Fair Labor Standards Act - Extends wage-hour requirements for all employers engaged in interstate commerce or producing goods for interstate commerce -most comprehensive federal regulation
What is being done to combat Counterfeit Goods?
1. The Stop Counterfeiting in Manufactured Goods Act -makes it a crime 2. Penalties are up to $2 million or imprisonment for up to ten years; must pay restitution 3. To combat foreign counterfeiters, U.S. agents shut down the domain names of counterfeit websites
What must happen to claim estoppel in the case of agency formation?
1. Third party's reliance must be reasonable 2. Must be the acts of the principal that create the estoppel Ex: Bank allows personal assistant to CEO to withdraw money because the CEO had given the bank reason to believe the assistant had authority
What are Illegal Strikes?
1. Violent Strikes 2. Massed picketing that bars entry of others to the plant 3. Sit-down strikes 4. No-Strike clauses In previous agreements may prevent strikes 5. *Secondary Boycotts* that are directed against someone other than the employer (suppliers) 6. Wildcat Strikes - Strikes by groups of workers other than union
What are the Patent Databases?
1. Website of the U.S. Patent and Trademark Office 2. Website of the European Patent Office can be used to study trends
When can an undisclosed principal not hold the third party liable for fulfilling the contract?
1. When the undisclosed party was left out of the contract 2. When the contract is signed by the agent with no indication that they are acting as an agent 3. When the performance of the agent is personal to the contract, thus allowing the third party to refuse the principal's performance
What are the factors that a court considers to determine an agent's scope of employment?
1. Whether the employee's act was authorized 2. The time, place, and purpose of the act 3. Whether the act was one commonly performed by employees on behalf of the employer 4. The extent to which the employer's interest was advanced by the act 5. The extent to which the private interests of the employee were involved 6. Whether the employer furnished the means or instrumentality by which a person was inflicted 7. Whether the employer had reason to know that the employee would perform the act in question and if they had done before 8. Whether the act involved the commission of a serious crime
Who does the Age Discrimination in Employment Act protect?
40 and above 20 or more employees; Must be involved in interstate commerce
What is a Patent?
A grant from the government that gives an inventor the exclusive right to make, use, or sell his or her invention for a period of 20 years; must be novel, useful, and not obvious Patents for designs, rather than inventions, get 14 years
What is a protected class?
A group of persons protected by specific laws because of the group's defining characteristics, including race, color, religion, national origin, gender, age, and disability
What happens when a principal does not ratify an agreement with a third party?
It is viewed as an unaccepted offer; can be revoked by third party Agent can be liable for misrepresentation of authority
What is an I-551 Alien Registration Receipt?
A Green Card Shows that one is "self-authorized" to have temporary employment; must be hired for a full-time, permanent position Limited number issued every year
What is a Section 1981 Claim?
A claim from a law from 1866 to protect freed slaves that protects from racial or ethnic discrimination concerning the formation or enforcement of contracts
Under the Federal Trademark Dilution Act, what is dilution?
A doctrine under which distinctive or famous trademarks are protected from certain unauthorized uses of the marks regardless of a showing of competition or a likelihood of confusion
What is a Disclosed Principal?
A principal whose identity is known by the third party at the time the contract is made
What is a Partially Disclosed Principal?
A principal whose identity is not known by the third party but the third party knows the agent is or may be acting for the principal Ex: buy property for me and make it known that you are an agent, but keep my identity secret
What is respondeat superior?
A principal-employer is liable for nay harm caused to a third party by an agent-employee in the course or scope of employment Basically *Vicarious Liability* "Let the master respond" Businesses are better able to provide relief than an individual
What is a notary public?
A public official authorized to attest to the authenticity of signatures
What is Agency in terms of relationships?
A relationship between two parties in which one party (the agent) agrees to represent or act for the other (the principal). On behalf and instead of Ex: Employee is an agent of the employer
What is an Authorization Card?
A signed card that states employee wants a union to represent them; if majority of them sign, union can present them to firm and ask for formal recognition Employer not required to recognize
What is a fiduciary relationship?
A term that refers to a relationship of trust and confidence
What is a Service Mark?
A trademark that is used to distinguish services rather than products e.g. Titles and character names
35-1: Business Scenario: Are these violations of Title VII in 1964 Civil Rights Act? A. Tennington, Inc. a firm with 10 employees that consults in 7 states only hires white males B. Novo Films makes a movie about Africa. Employs 100 extras by putting out ad in all major southern California newspapers that only African Americans need apply.
A. No, not enough employees to be liable B. Yes, can never have a qualification based on race or color
Ch. 34, Sakai Question 1: George contracts for 1 year as an "at will" employee, and around 8 months in, if no action is taken the contract will be renewed. The day after 1 year is up he is Fired a. Is George an at-will employee? b. Can he be fired?
A. Yes, because as long as it is not wrongful termination, that is alright B. Yes, he can be fired because he is an at will employee
Are Zero-tolerance policies and random drug tests allowed?
Yes, and private employers who contract with the government can be forced to give background investigations that may expose drug use
What has the impact of the states been on immigration?
Arizona- immigrants can be asked to show papers and must carry papers on them; but it is not a crime to not States cannot arrest based solely on the suspicion that they are in the country illegally
What is the rule on Pregnancy Discrimination?
Pregnant women must be treated the same as anyone not so affected but with the similar ability to work
What can wrongful termination lead to in agency?
Breach of Contract Can even be wrongful if the agent does not get *reasonable notice* of the termination
Under what conditions can an agent have the authority to make contract?
Actual (Express or Implied) Apparent *Can also be ratified later on by principal if agent did not originally have authority
What kind of employees are exempt from overtime pay?
Administrative, Executive, and professional employees, Outside salespersons, those who create computer code Basically those whose primary duty usually is management and who exercise discretion and independent judgement (set their own schedule) Also those making $50,440 a year
When do employees' rights to receive pension benefits vest?
After 5 years of employment when they stop working, they can get employer contributions Whenever they stop working they get their own contributions back
Who do H-2 visas provide for?
Agricultural workers or seasonal workers
What is Wrongful Discharge?
An employer's termination of an employee's employment in violation of the law or an employment contract Often used when terminated in retaliation for some protected activity such as whistleblowing or participating in an employment-discrimination investigation Even if the employer's actions do not violate employment contract or statute, can still be liable under common law for tort theory or agency
What can you not copyright?
An idea, the way something looks must be separate from its utilitarian (functional) purpose e.g. can't copyright a water cup Cannot copyright Compilations of Facts; must be original, can copyright if it is organized in an original way e.g. white pages of a telephone directory can't copyright math or page numbers or widely known facts
What is Goodwill?
An intangible asset from the valuable reputation of a business
What is a Copyright?
An intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type Copyright Act of 1976
What are whacky things that can be patented?
Artistic Methods, works of art, certain business processes, the structure of storylines, and plants that are produced asexually by hybridization or genetic engineering
For Agents, what is Express Authority?
Authority declared in clear, direct, and definite terms -oral or writing
How is the decision of who gets the patent decided?
By who filed first
What are exceptions to the Employment-At-Will Doctrine?
Based on Contract Theory - If employee is fired outside the terms of the implied contract of employment, it is breach of contract even though no written contract exists. Employment manual and oral promises can constitute as contracts Based on Tort Theory - Abusive discharges for intentional infliction of emotional distress or defamation or even fraud if false promises are made Based on Public Policy - Employees discharged for whistleblowing (Whistleblower Protection Act)
What is National Origin refer to?
Birth in another country or his or her ancestry or culture Ex: Hispanic
What is an Undisclosed Principal?
Principal whose identity is totally unknown to the third party and the third party has no idea that the agent is acting as an agent
Are members or former members of the military a protected class?
Yes, and they can only be terminated "for cause" that must be set out at the beginning of the employment
Who are E visas for?
Certain foreign investors or entrepreneurs
What is a Certification Mark?
Certification of a good or service and certifies its region (ex. Florida orange juice) When used by members of a cooperative or association, becomes. a *collective mark*
What is the right of the union?
Collective Bargaining on the members' behalf; process by which they negotiate on things such as terms and conditions of employment
What is Agency law based on?
Common Law
Who are L visas for?
Company's foreign managers and executives working in the US
What are damages for Title VII cases?
Compensatory only if intentional discrimination Cap of $50k on companies of 100 or less
What does OSHA say about inspections?
Compliance officers can enter and employees must report OSHA complaints Employer cannot discharge employee who files a complaint or who in good faith refuses to work in an are that might cause death or bodily harm
What happens for copyright expiration when there is more than one author?
Copyright expires 70 years after death of last surviving author
What is reverse-discrimination?
Discrimination against a majority group Ex: white males
What is Unintentional Discrimination known as?
Disparate-Impact Discrimination -When a protected group of people is adversely affected by an employer's practices, procedures, or tests even thought they do not appear to be discriminatory
What is Intentional Discrimination known as?
Disparate-Treatment Discrimination
How does Trademark Dilution occur online?
Does not require proof that consumers are likely to be confused between the unauthorized and the authorized
What kind of workers are not covered for Workers' Compensation?
Domestic workers, agricultural workers, temps, employees that provide transportation to the public Minors are Covered
Do agency law and employment law overlap?
Yes, because employees are often agents of employers, However, agency law is bigger because it can exist outside of employment Agency Law - Common Law Employment Law - Statutory Law
Are States generally immune from ADEA, Disibilities Act, and Fair Labor Standards Act suits?
Yes, but Not from Family and Medical Leave Act suits Congress can allow private suits
Who do O visas provide for?
Extraordinary people in science, art, education, business, or athletics International acclaim
What are most strikes classified as?
Economic Strikes when the union wants a better deal
What is the Employment-At-Will Doctrine?
Either party may terminate the employment at any time and for any reason, unless doing so violates an employee's statutory or contractural rights Does not apply to Independent Contractors
Who is excluded from COBRA?
Employees fired for gross misconduct
Under OSHA what happens if an employee dies or 3 or more are hospitalized?
Employer must notify OSHA within 8 hours
How are Tipped Workers treated under the FLSA?
Employer only has to pay $2.13 if tips plus this equal at least the federal minimum wage, if not employer makes up the difference. Some states do not allow employers to factor tips into minimum wage If they pay at least the fed minimum wage, employers can take the employees tips and distribute them how they want (tip pool for busboys, barbacks, and cooks)
What is a Lockout?
Employer's counterpart to the worker's right to strike Employer shuts down to prevent employees from working Cannot be used to break the union or pressure employees into decertification, or leaving the union Employer must show economic justification for the lockout
Under OSHA what must happen when there is a work-related injury or disease?
Employers must go straight to OSHA
What does the Employee Retirement Income Security Act apply to?
Employers that have private pension funds for their employees; Employers pay into Pension Benefit Guaranty Corporation and it pays benefits if employer cannot Does not require that employer make a private pension fund
What does the Affordable Care Act do? (Obamacare)
Employers with 50 or more full-time employees must offer health insurance benefits In return, any business, even those that do not need to, who offers health benefits gets tax credits Cannot charge health insurance to employees beyond a certain level of their income
What is the WARN act? (Worker Adjustment and Retraining Notification Act)
Employers with at least 100 employees must give 60 days notice to workers and government authorities before a mass layoff or closing a plant that employs more than 50 full time workers Mass layoff = 1/3 of total employees at a job site
What must military members do to establish a case of discrimination?
Establish that a non-military employee would have been treated differently
What does the Digital Millennium Copyright Act do?
Established civil and criminal penalties for anyone who bypasses encryption software or antipiracy protection. Also makes it illegal to produce products that do that allows for fair use for education and noncommercial purposes Limits liabilities of ISP if their customer commits copyright infringement and the ISP doesn't know
Do independent contractors who create copyrightable work own the copyright?
Ex: Freelance artists, writers, programmers Yes, usually the contractor owns the copyright, unless it is specifically made in writing that it is "work for hire"
What is Copyright Infringement and when does it come into effect?
It is the copying of the expression of an idea. Does not have to be exact copy or the whole copy e.g. 50 Cent infringing on a book
Case 32.1: Coker v. Pershad
Facts: AAA hired Five Star Auto Service for towing. Driver called AAA for towing. AAA called Five Star who sent Pershad to tow. Pershad assaulted a passenger of the car, Coker with a knife. Coker sued AAA, Five Star, and Pershad. Court determined AAA not at fault because Five Star was an independent contractor of theirs. Coker settled the other things, but appealed the AAA decision Issue: Was Five Star an independent contractor for AAA Rule: An employer who hires an independent contractor has no control over the manner in which the work is done or the liability Analysis: Court looked at control of AAA, whether Pershad was engaged in a distinct business, whether the job was one done under direction or by a specialist w/o supervision, the skill required for the job, who supplied tools, and the length of employment AAA did not control much, Five Star owned pretty much everything. In agreement with AAA, Five Star is stated as an independent contractor. Five Star worked w/o supervision, Five Star was its own business. AAA not solely in the towing business Conclusion: Court affirmed that AAA was not responsible
Jones v. Archibald
Facts: All-Pro represents Archibald, Archibald was contacted by Jones and directed to All-Pro who told Jones that Archibald would appear at a basketball camp. Jones paid, but Archibald couldn't do it anymore and refunded the money. Jones sued Archibald and All-Pro Issue: Did Archibald and All-Pro give enough timely notice and help Jones recover? Is All-Pro liable as an agent Rule: A disclosed agent who acts for another in negotiating a contract in the business interests of his or her principal will not be deemed to have intended to bind him or herself personally unless the intent to do so is manifested with reasonable clarity Analysis: Court saw that All-Pro was only an agent and that it was not liable for Archibald's breach Conclusion: Court ruled that All-Pro could not be sued. Dismissed the complaint
Case 35.1: Bauer v. Lynch
Facts: Bauer couldn't pass FBI pushup standards so he got a crappy FBI job. He sued because the gender standards for Pushup scores were discriminating. Lower court sided with Bauer b/c of simple test Issue: Are different Physical Fitness standards for men and women gender discrimination? Rule: Test for discrimination is: If you had been the other sex, would the outcome have been different? Analysis: The court looked at how equally fit men and women perform differently on a PFT score due to physiological differences Conclusion: Ruled in favor of FBI and remanded
Case 33.1: Lundberg v. Church Farm Inc.
Facts: Church had a farm operated by Bagley. Church directed business inquiries to Bagley and basically made him an agent. Caused Lundberg's to believe that Bagley was agent and they signed a contract with him. Lundberg's sued for breach for some horse thing and won. Church appealed on grounds that Bagley was not agent. Issue: Was Bagley an agent through Apparent Authority to Church? Rule: A principal may be bound by the unauthorized act of an agent if the principal leads a third party to believe that the agent has authority to perform the act. Analysis: Court looked at how an ad for Church directed all inquiries to Bagley. Bagley lived on and managed all the operations of the farm. A reasonable person would not have double checked that Bagley had authority to act on Church's behalf because Bagley apparently was in charge because of the position that Church put him in. Conclusion: Court affirmed decision against Church for breach
Case 9.1: Hasbro, Inc. v. Internet Entertainment Group Ltd.
Facts: Hasbro owns the registered trademark Candy Land, and in the 90's IEG used a domain name candy land.com for a porn site. Hasbro filed a trademark dilution claim and asked for a permanent injunction Issue: Does this constitute Trademark Dilution? Or possibly Infringement? Rule: Trademark Dilution does not involve fraudulent use of another's trademark, rather it involves use of a trademark that could diminish the quality of another's similar trademark. For dilution, plaintiff must show that defendant's use of similar name will cause ongoing damages to the plaintiff Analysis: The court looked at how this caused irreparable harm to Hasbro. The harm clearly outweighs the inconvenience to there defendant if they have to stop using the candy land name Conclusion: Court granted the injunction
Liger v. New Orleans Hornets NBA Ltd Partnership
Facts: Hornets workers want overtime; seasonal workers exempted from FLSA overtime requirements Issue: Is the Hornets NBA team a year-round employer? Rule: Employers that operate for less than 8 months in a year do not have to pay overtime Analysis: Court looked at how Hornets wanted to compare themselves to a minor-league baseball team that did not qualify as a year-round employer; Court rejected this because of the size and scope of the Hornets' year round operations. Conclusion: Court ruled in favor of workers
The Detroit Lions, Inc. and Billy Sims v. Jerry Argovitz
Facts: Lions drafted Sims and signed him to a 4 year contract. Argovitz entered into an agency agreement with Sims and counseled him. Argovitz negotiated with Lions for renewed contract with Sims. Argovitz became owner of USFL Gamblers and manipulated contract out of personal interest. Argovitz got Sims to go to the Gamblers. Basically, Argovitz breached duty to Sims because he did not inform the Lions of the Gamblers' offer and then would not talk to the Lions. Argovitz then got Sims to sign a waiver of any claim against Argovitz. District court granted recession of contract. Argovitz appealed. Issue: Was Sims aware of all reasonable facts at the time, and if so, does that make his Gamblers' contract valid Rule: Fiduciary has duty as agent to disclose all reasonable facts to principal. Analysis: Court saw that while Argovitz made some disclosures, he did not make as many as were usually standard for the business. He also got his personal interests in the Gambler's involved Conclusion: Appellate Court affirmed decision of lower court
Ch. 35: PGA Tour Inc. v. Martin
Facts: Martin needs a cart to get around course. PGA says no. Martin wins twice but PGA appeals. ADA Issue: Does Martin needing a cart fall under the Americans with Disabilities Act? Does it change the nature of the game? Rule: Employers must make reasonable accommodations to qualified employees with disabilities, as long as it is not an undue burden Analysis: They looked at how Martin is technically an independent contractor. They look at how Walking is a pretty peripheral part of the game, and that golf has changed as technology has changed. Conclusion: Affirmed decision in Martin's favor because it does not change the nature of the tournaments
National Basketball Association v. Motorola
Facts: Motorola sold a "SportsTrax" pager that displayed info of basketball games in progress from people who transmitted at the game. Did not have permission of NBA. NBA got an injunction. Issue: Was the tracking of the games by the pager an infringement of copyright? Rule: Analysis: Court said basketball games are not original works of authorship. Can't copyright formations or plays in football. Also, there would be way too many copyright owners. The broadcasts of live events are copyrighted but not the events themselves. However, the device does not infringe on broadcasts because it is only reproducing facts from the broadcast. Facts cannot be copyrighted Conclusion:
Chapter 9: In re O'Brien
Facts: O'Brien was a teacher who posted about being a warden for future criminals. Parents protested, school fired her for "conduct unbecoming". She sued, also did not apologize Issue: Does the First Amendment protect what employees say? Rule: The First Amendment protects employees for matters of public concern and interests of the State, and employers for promoting efficiency of public services through employees Analysis: The court saw that she posted that stuff because she was dissatisfied with her job and not for some great campaign Conclusion: Not protected First Amendment Speech
Smith v. Gardner
Facts: Smith hit Gardner with car. Smith filed against Gardner and his employer, San Jacinto College for injuries from the accident. College asks for summary judgement that it cannot be liable for Gardner's acts because at the time of the accident, Gardner was not acting within the course and scope of his employment. (He was driving drunk in a company car at 3 am) Issue: Is the College liable because Gardner was in that area of town because basketball games were being played around that time, but he was not on company time at the accident? Rule: If an employee acts outside of the scope of his or her employment, the employer is not liable Analysis: They looked at how Gardner, even though he was driving a school van, did not tell anyone where he was going, was Driving under the influence, and that what was happening was not the employer's business, Gardner was on a "Frolic". Looked at how Gardner acted as if the work day was over Conclusion: Court granted summary judgement for the College that it was not liable
The Coca-Cola Co. v. The Koke Co. of America
Facts: The Coca-Cola Company tried to prevent the Koke Company from using the word Koke on their products. Koke contended that the Coca-Cola trademark was a fraudulent misrepresentation and was not entitled to help from the courts. They contended that even though it was named "Coca", it no longer had cocaine in it and was no longer a valid trademark. Trial Court granted the injunction against Koke but appellate court reversed. Coca-Cola appealed to the Supreme Court Issue: Did the marketing of products called Koke and Dope by the Koke Company and others constitute infringement of Coca-Cola's Trademark? Rule: If a Company has a valid trademark, it can proceed in a lawsuit to prevent obviously fraudulent use of a competing trademark that will confuse the public. Analysis: The court analyzed how Coca-Cola, in compliance with the Food and Drug Act had removed cocaine from the drink, and how the name had become synonymous with the drink. A reasonable person could ask for the drink and not expect it to have cocaine in it. The name characterizes it as something more than a mixture of compounds. The facts of the drink must be judged as they are now. The word Coke is in common use now and could be confused with Koke, so the word Coke also receives protection Decision: Court Granted injunction against Koke, but not against Dope because no one referred to Coca-Cola as dope.
What employers can use lie-detector tests?
Federal, State, and local government firms, certain security service firms, and firms that manufacture and distribute controlled substances
What is the H-1B Visa Program?
For employee of "special occupation" (specialized knowledge or college education) Can stay and work in U.S. for 3 to 6 years and work only for the sponsoring employer Usually high-tech workers Employer must submit Labor Certification or ETA 9035 that shows it is fair and equitable and that other workers will be informed
Under Equal Pay act, what must be the sole factor that determines the difference in pay between two people in order for it to be sex discrimination?
Gender Can be filed at any time
Can employers give lie-detector tests?
Generally no, employer cannot require, and cannot use or ask about results and take negative action based on it
Are Employers responsible for the crimes of their agents?
Generally no, even if the crime was committed within the scope or authority of employment Only liable if principal or employer participated in the crime by conspiracy or other action Employer can be liable in some states if agent violates certain regulations like prices, weights, and sale of liquor
If the EEOC does not investigate, what does it do?
Gives the employee the right to sue.
What is the difference in Union-Employer relationships between Good Faith and Bad Faith Collective Bargaining?
Good Faith is negotiating with the goal of agreement, considering the other side, reasonable proposals, compromising, and using bargainers who have authority to make agreements Bad Faith is delaying, being unreasonable, not giving a counterproposal, undermining the union, shifting positions constantly, and sending bargainers who Lack authority to make contracts
What is Medicare?
Government health insurance for people 65 and older or disabled people
What nonprofit oversees distribution of domain names and arbitration?
ICANN
What is the Equal Dignity Rule?
IF the contract must be in writing, the agent's authority to make the contract must also be in writing Failure to comply makes the contract voidable by the principal
What is the Berne Convention and how does it apply to Intellectual Property Rights?
If a U.S. citizen writes a book, every country that has signed the convention must recognize the U.S. author's copyright on the book Can apply even if author is citizen of a country that is not part of agreement but they publish the book in a country that is in on the deal Notice is not needed to gain protection for works published after March 1, 1989
What situations start a Union Election?
If employer refuses to recognize union or less than a majority of the workers sign authorization cards; employees petition NLRB to hold an election on unionization (need 30% of work) NLRB supervises election; employer must submit "statement of position" laying out arguments Can use email
Do employees who create copyrightable work own the copyright?
If it is within the scope of her or his employment at the request of the employer, it is "work for hire" and belongs to the employer
What is the Detour and Frolic example of Principals being liable for the actions of Agents used in Joel v. Morison?
If servant merely took a *detour* from his master's business, master is responsible If servant was on a *frolic of his own* not on the master's business, master is NOT liable
When can an employer prohibit union solicitation?
In public places if they also prohibit solicitation for charitable causes
Can you be asked for your social media passwords?
In some states, yes Gets gray because if you get fired, the management does not have to say it was because they looked at your social media profile
What are Cookies online?
Invisible files that computers, smartphones, and other mobile devices create to track a user's Web browsing activities Targeted Advertising
What is Race under Civil Rights?
It broadly applies to the ancestry or ethnic characteristics of a group of persons Ex: Native Americans
What happens to a copyright when it expires?
It enters the *public domain* and it belongs to everyone
What did the TRIPS agreement do?
It establishes standards and procedures for all countries in the WTO Prohibits Discrimination-member country cannot favor its own citizens
What is After-Acquired Evidence in Employment Discrimination and does it allow the employer to avoid liability?
It is a defense that the employer finds out during trial discovery that it could use as a defense, but was not used in the actual action (Ex: Finding out after employee sues for discrimination that they actual lied on their job application) Cannot allow employer to avoid liability but can reduce damages
What is a trademark?
It is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known A source indicator e.g. Coca Cola logo
What is Intellectual Property?
It is any property that results from intellectual, creative processes and are products of an individual's mind e.g. apps, movies, books
What is power of attorney and what does it do?
It is authorization for another to act as one's agent or attorney in general or in special circumstances; written and notarized Express authority Stops on the death of the principal
What is a Trade Secret and is it protected?
It is information of commercial value, such as customer lists, plans, and R&D anything that makes an individual company unique and would have value to a competitor Extends to both ideas and their protection No filing necessary because it is automatically protected Must be disclosed to key employees usually who have to sign a non-disclosure agreement
What is Typosquatting?
It is registering a domain name that is a misspelling of a popular brand to get traffic Hard to take action against
What does Title VII of the Civil Rights Act prohibit?
Job discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender
How are ISP's Liable in Online Defamation?
Keeping in mind that newspapers, radio stations or anyone who publishes defamatory marks is held responsible even if the content was made by others ISP's are generally not held liable as publishers unless they are violating acts themselves Ex: Roommate website asking discriminatory questions
What are Meta Tags?
Key words that give Internet Browsers specific info about a Web page. Can be used to increase spot in a web search Can be trademark infringement if one uses meta tag of another's trademark without permission and is not reasonably necessary
What are right-to-work laws?
Laws making it illegal for union membership to be required for continued employment in any establishment; Basically makes the union shops illegal
What is the job of the Equal Employment Opportunity Commission?
Monitors compliance with Civil Rights Act (CRA) Title VII can investigate claims Can file a suit against the employer on the employee's behalf
What is a disability?
Must have physical or mental impairment that limits activities, must have record of it and others must know
What makes an Appropriate Bargaining Unit in work?
Mutuality of interest for the workers
Can employers forbid employees from participating in a religious activity?
No
Can implied authority contradict express authority?
No
If someone is associated with someone who is disabled, can they be discriminated against due to stereotypes? (Parents of disabled children)
No
If an employee accepts Workers' Comp benefits, can he or she sue for injuries caused by the employer's negligence?
No, Workers' Comp helps employers avoid liability Can only sue if employer *intentionally* hurt worker
Is consideration required for an agency relationship?
No, and it is usually consensual
Are independent contractors employees?
No, because those who hire them have no control over the details of the performance
Are striking workers given the right to return to their jobs after the strike?
No, but they cannot be discriminated against and must be given back seniority rights
Generally, is an employer liable for the tort of an independent contractor?
No, except when the contract involves unusually hazardous activities, such as blasting operations, transport of dangerous chemicals, and use of poisonous gases. In these cases, there is strict liability
If the agent is acting in scope of authority, is the principal liable for the contract, even if the principal is partially or undisclosed?
Yes, but agent may also be liable depending
If an agent contracts with a third party outside of their authority, is the principal liable even if partially disclosed or undisclosed?
No, the agent is liable Called the *implied warranty of authority* because agent impliedly warrants that they have authority If the third party knows that the agent does not have authority or agent even tells the third party that they are uncertain if they have authority, agent is not liable
If employees are informed that they are being monitored, does a reasonable expectation of privacy exist?
Not
Is Sexual-Orientation Harassment illegal?
Not federally, but many states prohibit it
If an employer tells employees that it is monitoring phone and email, can it also monitor text?
Not unless it tells the employees so
When the agent-principal relationship ends and the agent loses actual authority to bind the principal, what else must the principal do to cover all of his or her bases?
Notify third persons that the agency has been terminated so that the former agent does not have *apparent authority* Must be direct to third parties that the agent has dealt with Must be constructive notice to third parties who have heard of the agency but have not yet dealt with the agent
When does Patent Protection begin?
On the day of filing
Are people with drug addictions covered as having a disability?
Only if the abuse is done and over with and happened in the past, or if they are treating it now
Can employers ever discriminate based on gender?
Only when they can prove that the gender of the applicant is essential to the job Can have different standards on physical tests for men and women Plaintiff must prove that gender was the factor that determined the action
How is File-Sharing accomplished?
Peer-to-peer networking access files on other PC's through a distributed network Like Cloud Computing Issues arise when copyrighted material is made available on distributed networks
What does Social Security do?
Provides for retired people, survivors, and disabled people
What did the ACTA do? (Anti-Counterfeiting Trade Agreement)
Provides property rights to medications Deals with pirated copyrighted works distributed on the internet Member nations must establish border measures to protect from importing/exporting counterfeit goods
What does the Federal Unemployment Tax Act do? (FUTA)
Provides unemployment and that employers must pay unemployment taxes; state pays qualified unemployment workers
Under Americans with Disabilities Act, what must employers do??
Reasonably accommodate employee if it does not provide an undue hardship to the employer
What did the Madrid Protocol do?
Reduces the expenses to protect intellectual property abroad; when a company files a trademark, they can designate in one application which other countries they would like to register their mark in
Who guarantees the right to strike and picket?
Right to Strike - NLRA Right to picket - 1st Amendment, also non-employees can picket
Must a person have contractual capacity to become a principal?
Yes, but any person can be an agent, even minors
What are E-Agents?
Semiautonomous software programs that are capable of executing tasks such as searching databases and retrieving relevant information for a user
What does the OSHA do?
Sets standards for a safe and healthy workplace Ex: Notices, records, reports
What is Spam and what are the regulations for it?
Spam is bulk, unsolicited junk e-mail Many states regulate it so that people can opt-out of it, and must include a number or email that people can contact to opt-out CAN-SPAM Act permits unsolicited commercial e-mail but prohibits certain activities like deception or to random people U.S. Safe Web Act stopped spam from beyond orders and gives ISP's immunity from liability if they supply information
What are the effects of the electronic Communication Privacy Act? (ECPA)
Stops wiretapping except in cases of employers doing it for regular reasons with devices that they provide Allows it when employees consent to it Through Stored Communications Act, also prohibits access to stored communications by anyone and providers
For Trademark Infringement, what must be proven?
That the use of the mark creates a likelihood of confusion about the origin of the defendant's goods or services Does not need to prove that use was intentional or that the trademark was registered Most frequent act granted is injunction
What statutory act protects trademarks at the federal level?
The Lanham Act of 1946
Who do you register a trademark with and what are the requirements?
The U.S. Patent and Trademark Office It must currently be in commerce or the applicant intends to put it into commerce in six months (can be extended) The registration is renewable
What are Cyber Torts and when do they arise?
They are torts that result from online conduct 1. Cyber Defamation - Making false statements; hard to identify who is making them; ISP can be forced to show who it was Ex: Companies sue John Doe before they know name of person 2. Cyber Stalking - only when it causes substantial emotional distress
Are independent contractors agents?
They can be, Ex: hiring a real estate broker to sell my house. They are an independent contractor as a broker, but they are an agent because they are selling my house on my behalf
What must employees prove in disabilities cases?
They have a disability and are otherwise qualified but they were hurt SOLELY because of the disability
What do self-employed people do in terms of Medicare and Social Security?
They pay both the employer's and employee's portions of medicare and social security
What do the courts weigh when considering an employee's privacy rights?
They weight the interests of the employer against the employee's reasonable expectation of privacy.
What does the law say about Trade Secrets?
Those who disclose or use another's trade secret are liable if they discovered it by improper means or the disclosure or use constitutes a breach of duty owed to the other party Industrial Espionage Can be a federal crime
Who is not eligible for unemployment?
Those who have been fired from misconduct or who have voluntarily left their jobs Must be seeking employment, must be willing and able to work
What are Trade Names and how do they differ from a Trademark?
Trade Names indicate part or all of a business's name Can be protected as a trademark if it is also the name of the company's trademarked product Protected under common law only if they are unusual or fancifully used e.g. Coca-Cola
What is the difference between Trademark Infringement and Trademark Dilution?
Trademark Dilution does not involve fraudulent use of another's trademark, rather it involves use of a trademark that could diminish the quality of another's similar trademark For dilution, plaintiff must show that defendant's use of similar name will cause ongoing damages to the plaintiff
What legal issues arise over Social Media?
Tweets and posts can reduce damages awards and can even damage a person's intent or what they knew at a particular time Criminals boast about their activities; causing police to go undercover The spread of "material information" to investors can change with announcements made by company officers Companies establish guidelines for employee social media use
Where are copyrights Registered?
U.S. Copyright Office before this, must place the C thingy or Copr. or Copyright to protect from infringement
What are the restrictions on Child Labor under FLSA?
Under 14: Only certain types of work Ex: deliver newspapers, for parents, agriculture, entertainment 14-15: allowed to work not in hazardous occupation, limit on hours per day and week 16-18: allowed to work not in hazardous occupation, no limit on hours Over 18: no restrictions
How are employees' privacy rights protected?
Under tort law, state constitutions, and Electronic Communications Privacy Act they have protections Ex: employers cannot intercept personal electronic communication unless they are made on devices and systems furnished by the employer
What is Trademark Infringement?
Use of the trademark without authorization
Is an employee going to and from work and going to and from meals in the scope of employment?
Usually no, unless travel is normal in the scope of employment (i.e. traveling salespersons)
Is an employer responsible for an employee's intentional torts?
Usually not, unless it was within the scope and course of employment, or employer permits an employee to engage in reckless actions like smoking while filling propane tanks Ex: Security guard at a store who commits false imprisonment Ex: Nightclub owner is responsible for bouncer's assault and battery
Can harassment take place online?
Yes, especially if employer lets it happen
What is Cybersquatting and what legislation surrounds it?
When a person registers a domain name that is the same as or very similar to a trademarked business and then offers to sell it back to the trademark owner Owner of Trademark can sue It is illegal to have one confusingly similar to a trademark and to use it to profit with Bad-intent Can flourish because domain names change hands very often Have to subpoena the owner of the domain
When can harassment by Co-Workers leave the Employer liable?
When employer knew or should have known about harassment Can also apply to non employees getting harassed
What are hot-cargo agreements?
When employers voluntarily agree with unions not to handle, use, or deal in goods of other employers produced by nonunion employees
When can an employer use a lie-detector test if otherwise they are not allowed to do so?
When investigating losses attributable to theft, embezzlement, or theft of trade secrets
When is the only time that Affirmative Action programs are constitutional?
When it attempts to remedy past discrimination and does not make use of quotas or preferences Once it reaches goal of remedying past discrimination, must be changed or eliminated
When does someone have a reasonable expectation of privacy?
When putting in banking or credit card information; Have a reasonable expectation that companies will follow their own privacy policies If you post something on a private forum, might have an expectation of privacy
What is meant by an Agency Coupled with an Interest?
When the agent has a legal right to the property that is the subject of the agency Ex:Getting paid part of the house that I partially owned and was supposed to sell?
When does an agent have implied authority?
When the authority is inferred by custom (manager of a store buying inventory) by the position of the agent by the virtue of being necessary to carry out an express authority
What is Apparent Authority, and when does it apply?
When the principal causes a third party to reasonably believe that the agent has authority to act Pattern of Conduct Position in Employment Court can Estop principal from denying that agent had authority if third party honestly relies on the principal's representations to his or her detriment
What are employers responsible for sexual harassment by a supervisor?
When the supervisor has taken a *tangible employment action* with the employee (hired, fired, promoted, demoted) that the company gave them the authority to do Defenses for employers are: 1. Reasonable care to prevent or correct 2. Employee unreasonably failed to prevent or correct using ways put in place by employer
What are Emergency Powers of an Agent and when do they apply?
When there is an unforeseen emergency and the agent cannot communicate with the principal
When can a person bring suit for invasion of privacy?
When they have a reasonable expectation of privacy in that particular situation
Generally, what does the liability of the principal to contracts formed by the agent depend on?
Whether the agent was authorized to make the contract
How long is protection for copyrights?
Works created after January 1, 1978 get automatic protection for life of author plus another seventy years For copyrights owned by publishing houses, the copyright expires 95 from the date of publication or 120 years from date of creation, whichever comes first
What is Protected Expression
Works that are "fixed in a durable medium" which can be perceived, reproduced, or communicated Protection is automatic, and registration is not required
Are service members returning from service entitled to reemployment/ promotion if they would have earned it?
Yes
Can employers hire replacement workers to sub in for strikes?
Yes
Can undocumented (alien) workers bring action for employment discrimination?
Yes
Does Title VII of the Civil Rights Act prohibit Unintentional Discrimination?
Yes
Even without a disability, is disclosure of medical conditions against the law?
Yes
If the principal is undisclosed, and the agent is sued, are they entitled to indemnification by the principal?
Yes
Is an employer responsible if an employee discovers dangerous conditions that are pertinent to the employment situation, even if the employee didn't say anything?
Yes
Must employees with disabilities be given access to healthcare?
Yes
Can a principal who acts through an agent be liable for harm resulting from the principal's own negligence or recklessness? If so, when?
Yes 1. Improper Instructions 2. Authorizes improper materials or tools 3. Improper rules Ex: Telling driver to make delivery but knows that driver does not have driver's license Ex: Farmer telling agent to cut down someone else's corn
Is a principal responsible for an agent's misrepresentation if it is made within the scope of the agent's authority?
Yes Ex: Sales agent lying about the products I am having them sell
If principal is liable for agent's tortious actions, is the agent also liable?
Yes even if the agent was unaware that the action was wrong
Do employers and employees contribute to Social Security and Medicare?
Yes they both do, under FICA, by employer withholding employee's contributions from the employee's wages, and the employer matches the contributions
What is a license in Intellectual and Property Rights?
an agreement or contract permitting the use of a trademark, copyright, patent, or trade secret for certain purposes Grants rights only expressly described
What does the Family and Medical Leave Act do? (FMLA)
employees can take off work for family or medical reasons or in situations that arise from military service (unpaid Leave) if... 1. more than 50 employees 2. private and government employees who have worked for more than a year 3. Twelve weeks off within twelve months Usually lower than protection guaranteed by state laws
What does the Consolidated Omnibus Budget Reconciliation Act do? (COBRA)
employees still get health-care coverage for a limited time even if they are no longer eligible for group health insurance plans Worker must pay the premiums Also, employer cannot remove insurance when employee is terminated or when a reduction in hours could affect coverage Employee has 60 days to decide if they want to continue on the employer's group insurance program
What does the Health Insurance Portability and Accountability Act do? (HIPAA)
employers must designate privacy officials, notices and provide training to make sure that health information is not disclosed
What is not Patentable?
laws of nature, natural phenomenon, abstract ideas (algorithms)
What is Trade Dress?
visual components that contribute to the overall look of a brand; the image and overall appearance of a product Can be applied to the product or the packaging Will the consumers be confused by this use?
