mgmt ex 4

Larson v. Koch Refining Co.

- Larson is a supervisor and is fired from job after he was arrested for DUI and criminal assault charges. Additionally, he had a pattern of absence - He sued he was a alcoholic and they discriminated against him... Koch fired him bc of the his effects of his problem and won the case

Course pack appendix A-19 CRA, Title VII Discrimination: - Tallahassee Furniture Co., a local company w/ over 50 employees has a policy concerning all employees must be clean shaven - Bob applies and was told he must shave his beard to get job - Bob refuses to shave beard bc its a remedy to his painful shaving bumps... a common African men condition. - he was not offered the job - If bob sues Tallahassee Furniture Co. for discrimination what defence does BOB have to prove to win his case. a. the company had a neutral policy that is neutrally applied b. the company's policy has a significant adverse impact on a protected class c. the company does not have a legitimate business reason for its policy

- This is a desperate IMPACT (not treatment) case - ADA issue as well bc its medical condition - A and B are both correct - look at P BOP for disparate impact case under CRA... the wording of C is about what an employer must prove - Em'er BOP, but with the word "not" added to be confusing.

Wallace v. VA Hospitals

- Wallace has a addiction to Narcotics - her doctor suggested she should not prescribe narcotics, and she told the VA this when she applied - they did not hire her - she sued because less than 2% of her job was administering narcotics, so VA could have accommodated - The employer was held responsible for discrimination

Issue Spotters: Koko, a person with a disability, applies for a job at Lively Sales Corporation for which she is well qualified, but she is rejected. Lively continues to seek applicants and eventually fills the position with a person who does not have a disability. Could Koko succeed in a suit against Lively for discrimination? Explain. (See Discrimination Based on Disability.)

- Yes, if she can show that Lively failed to hire her solely because of her disability. The other elements for a discrimination suit based on a disability are that the plaintiff 1. has a disability and 2. is otherwise qualified for the job. - Both of these elements appear to be satisfied in this situation.

III. Americans with Disabilities Act of 1990 (ADA) F. Substance Abuse

1. Drug addiction is considered a disability; causal users are not protected as they are not addicts 2. ADA only protects FORMER drug abusers - those who have completed or are in supervised rehab programs; have overcome problem 3. Alcoholics are also protected as disabled - can fire them for effects of the diese like not showing up to work and drinking and driving after lunch hour, but can not fire them for having the disease 4. However, Employers prohibit the use of alcohol at work. Employees should not be under the influence of alcohol at work Larson v. Koch Refining Co. - Larson is a supervisor and is fired from job after he was arrested for DUI and criminal assault charges. Additionally, he had a pattern of absence - He sued he was a alcoholic and they discriminated against him... Koch fired him bc of the his effects of his problem and won the case Wallace v. VA Hospitals - Wallace has a addiction to Narcotics - her doctor suggested she should not prescribe narcotics, and she told the VA this when she applied - they did not hire her - she sued because less than 2% of her job was administering narcotics, so VA could have accommodated - The employer was held responsible for discrimination

III. Americans with Disabilities Act of 1990 (ADA) B. Other Procedures

1. EEOC claims are required - Plaintiff must pursue the claim through the EEOC before filing an action in court for violation of the ADA. 2. Remedies similar to CRA are available [book idk if u need to remember: include reinstatement, back pay, a limited amount of compensatory and punitive damages (for intentional discrimination), and certain other forms of relief. Repeat violators may be ordered to pay fines of up to $100,000.]

III. Americans with Disabilities Act of 1990 (ADA) D. Explanation of terms in definition of disability

1. Major Life Activities - things most of us take for granted - including but not limited to: caring for yourself, performing manual task, seeing, hearing, learning, reading, working, etc. 2. Substantially Limits: a. Meaning: material restricts b. An impairment that is episodic or in remission: - the question is whether the impairment would substantially limit the individual when such an impairment is active. However, remember plaintiff must be qualified for the job. Episodic: in and out condition like bipolar - Remission: cancer, TB, etc. - also impairment: disability in major body sections like immune system, respiratory system, reproductive system, etc. c. Corrective (Mitigating) Measures: - Weather the plaintiff fits the definition of a disability is determined WITHOUT REGARD to corrective measures; - EXCEPTION: glasses and contacts for ordinary visual impairments are not considered a disability... However, employers are free to use/ have uncorrected vision standards as a basis for hiring in a position if there is a business necessity or job related reason... example: pilots for big airlines 3. Being "regarded as having such an impairment" - Plaintiff needs to prove he has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a MLA. 4. Disclosure of Confidential Medical Information: ADA provisions also require employers to keep their employees' medical information confidential; employee who discovers that an employer has disclosed his or her confidential medical information has a right to sue the employer—even if the employee was not technically disabled. What if other employees are asking why Joe gets that fancy new desk and the other devise they don't get? Refer them to HR

III. Americans with Disabilities Act of 1990 (ADA) A. What is the Plaintiff's BOP

1. Plaintiff has a disability (fits one of three definitions of a disability) 2. Plaintiff is otherwise qualified for the jub (with or without reasonable accommodations) 3. Is excluded from employment solely due to discrimination based on the disability

Employment Discrimination II Age Discrimination in Employment Act of 1967 (ADEA) B. Burdin of Proof

1. Plaintiff proves prima facie case. 2. Burden shifts to employer to prove a legitimate reason. 3. Plaintiff can then try to prove the employer's reason is a mere pretext. EXAMPLE: Stever .v U.S. Bancorp, Inc. (9th cir. 2017) - Jerry Stever was a financial adviser at U.S. Bancorp, Inc. He was terminated at age sixty-eight for "deficient performance." Stever sued U.S. Bancorp in federal court alleging age discrimination and claiming that deficient performance was a pretext. The plaintiff proved that he was in the protected age group (over forty) and was qualified for the position, but he lacked proof that he had been discharged because of his age. - Stever argued that two younger financial advisers had received more favorable treatment from the company than he had. Showing that "similarly situated" younger employees were treated more favorably would have given rise to an inference of discrimination. The court found no evidence of preferential treatment, however. One of the men had generated considerably more revenue than Stever, and the other man differed from Stever in terms of seniority and prior performance. Thus, they were not similarly situated to Stever. Stever also claimed that his manager had made the comment, "We old dogs had to learn new tricks." The district court found that this single stray remark was not sufficient to demonstrate age discrimination and granted summary judgment to U.S. Bancorp. A federal appellate court affirmed the decision.

Employment Discrimination II Age Discrimination in Employment Act of 1967 (ADEA) A. Prima Facie Case

1. Plaintiff was a member of the protected age group (protected age group= anyone over 40). 2. Plaintiff was qualified for the position from which he was discharged 3. Plaintiff was discharged under circumstances that give rise to an inference of age discrimination. - inference of age discrimination: hiring younger than 40 helps give inference; but the plaintiff does not have to be replaced by someone younger than 40 to have a case; the replacement needs to be younger than the plaintiff but does not have to be in the protected class

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 E. Discrimination based on Race, Color, and National Origin

1. Race is broadly to apply to the ancestry or ethnic characteristics of a group of persons, such as Native Americans EXAMPLE: Griggs Case - griggs applied for job at Likens and job asked, "how many times have you been arrested" NOT convicted; Then asked how many arrest... Grigs replied w/ a high number when employer saw he didn't get hired and Briggs said it's discrimination bc black men get arrested more. He is a sheet metal worker so arrest shouldn't matter asking for arrest is PER SAY discrimination 2. National origin refers to discrimination based on a person's birth in another country or his or her ancestry or culture, such as Hispanic. - EXAMPLE Case in Point 21.3 Chang is prof at AAMU and didnt get 10 yr so he filed a lawsuit claiming discrimination based on national origin. Chang established a prima facie case because he 1. was a member of a protected class, 2. was qualified for the job, 3. suffered an adverse employment action, and 4. was replaced by someone outside his protected class (a non-Asian instructor). When the BOP shifted to employer, AAMU showed that Chang argued w/ a VP & refused to comply w/ her instructions. The court ruled that AAMU had not renewed Chang's contract for a legitimate reason—insubordination—and therefore was not liable for unlawful discrimination. - other EXAMPLE: English only Policies - policies that say only English can be spoken at ALL times is Disparate impact 3. Reverse Discrimination - Prohibited by Title VII. Defined as: discrimination against members of a majority group - aka white men EXAMPLE Case in Point 21.4: Mountain West Holding Co. v. State of Montana (9th Cir. 2017) - Montana's Department of Transportation receives federal funds for transportation projects. As a condition of receiving the funds, Montana was required to set up a program to avoid discrimination and promote awarding contracts to disadvantaged business enterprises (DBEs). DBEs are businesses owned by members of socially and economically disadvantaged groups, such as minority groups. - Mountain West Holding Company, Inc., installs signs, guardrails, and concrete barriers on highways in Montana and competes against DBEs for contracts. - Mountain West sued the state in federal court for violating Title VII by giving preference to DBEs. At trial, the court pointed out that any classifications based on race are permissible "only if they are narrowly tailored measures that further compelling governmental interests." Montana thus had the burden of showing that its DBE program met this requirement. To show that the DBE program addressed actual discrimination, the state presented a study that reported disparities in state-awarded contracts and provided anecdotal evidence of a "good ol' boys'" network within the state's contracting industry. The district court accepted this evidence and concluded that Montana had satisfied its burden. A federal appellate court reversed, though, finding that the evidence was insufficient to prove a history of discrimination that would justify the preferences given to DBEs.

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 J. Remedies Under Title VII:

1. Reinstatement 2. Back Pay - Back pay is the difference between the amount an employee was supposed to be paid and the amount they were actually paid. 3. Retroactive promotions - [retroactive pay] If an employee receives a pay increase that is effective in a prior pay period, the difference between what she was paid and what should have been paid is his retroactive pay. 4. front pay - compensate an employee as if termination or lack of promotion did not happen as they attempt to find a comparable position elsewhere. 5. compensatory damages if intentional=damages awarded by a court equivalent to the loss a party suffered 6. punitive damages if malice or reckless indifference= damages assessed in the legal process to punish a defendant for negligence

Practice and Review: Employment Discrimination -Michelle Lyle, an African American woman, was hired by Warner Brothers Television Productions to be a scriptwriters' assistant for the writers of Friends - one of her Essential job duties was to type detailed notes for the scriptwriters during brainstorming sessions in which they discussed jokes, dialogue, and story lines. The writers then combed through Lyle's notes after the meetings for script material. During these meetings, the three male scriptwriters told lewd and vulgar jokes and made sexually explicit comments and gestures. They often talked about their personal sexual experiences and fantasies, and some of these conversations were then used in episodes of Friends. - During the meetings, Lyle never complained that she found the writers' conduct offensive. - After four months, Lyle was fired because she could not type fast enough to keep up with the writers' conversations during the meetings. - She filed a suit against Warner Brothers, alleging sexual harassment and claiming that her termination was based on ---racial discrimination---. Using the information presented in the chapter, answer the following questions. 1. Would Lyle's claim of racial discrimination be for intentional (disparate-treatment) or unintentional (disparate-impact) discrimination? Explain. 2. Can Lyle establish a prima facie case of racial discrimination? Why or why not? 3. When Lyle was hired, she was told that typing speed was extremely important to the position. At the time, she maintained that she could type eighty words per minute, so she was not given a typing test. It later turned out that Lyle could type only fifty words per minute. What impact might typing speed have on Lyle's lawsuit? 4. Lyle's sexual-harassment claim is based on the hostile working environment created by the writers' sexually offensive conduct at meetings that she was required to attend. The writers, however, argue that their behavior was essential to the "creative process" of writing for Friends, a show that routinely contained sexual innuendos and adult humor. Which defense discussed in the chapter might Warner Brothers assert using this argument?

1A. Intentional or unintentional discrimination Because Lyle has no direct evidence of discriminatory intent, her claim would likely be for unintentional, disparate impact discrimination. She could argue that the employer's requirement that she type as fast as the writers of typing speed disproportionately affected those in a protected class using the EEOC's "four-fifths" rule. 2A. Prima facie case It is unlikely that Lyle could establish a prima facie case of unintentional discrimination. To do so, she would have to prove that the employer's typing speed requirement had a discriminatory effect, excluding members of a protected class at a substantially higher rate than nonmembers. Under the EEOC's "four-fifths" rule, she would have to show that the selection (or retention) rate for members of a protected class was less than four-fifths, or 80 percent, of the selection rate for non members. This would be difficult to show given these facts. 3A. After-acquired evidence Evidence that Lyle had misrepresented how fast she could type at the time of her interview would not substantially impact her claim of racial discrimination, because it would be considered after-acquired evidence of employee misconduct. The United States Supreme Court has held that such evidence cannot shield an employer entirely from liability for discrimination. It could, however, be used to limit the amount of damages that she could obtain if she was successful in her lawsuit. 4A. Employer's defense Warner Brothers can assert the writer's sexually explicit conduct during the meetings was a business necessity, because it was necessary for the writers to freely discuss plot ideas and themes in creating the script for Friends. The television series has been popular largely because of its adult humor and sexual innuendos, and without those elements, the show would not be the same. Thus, some sexually explicit banter is necessary to write the script and Warner Brothers would be able to claim this in their defense.

Business Scenarios and Case Problems Discuss fully whether either of the following actions would constitute a violation of Title VII of the Civil Rights Act, as amended A. Tennington, Inc., is a consulting firm with ten employees. These employees travel on consulting jobs in seven states. Tennington has an employment record of hiring only white males. B. Novo Films is making a movie about Africa and needs to employ approximately one hundred extras for this picture. To hire these extras, Novo advertises in all major newspapers in Southern California. The ad states that only African Americans need apply.

21-1A. Title VII violations ( a) Only employers with fifteen or more employees who are engaged in an activity that affects interstate commerce come under the Civil Rights Act, Title VII. Tennington, Inc., has only ten employees, and thus its employment of only white males is not a federal civil rights violation. Tennington could be in violation of state law, however, depending on the requirements of the state statute. (b) The 1964 Civil Rights Act, Title VII, as amended, prohibits discrimination at any stage of employment on the basis of race, color, religion, sex, or national origin. The advertisement, which clearly restricts employment applicants to African Americans, is in violation of the law. The Civil Rights Act does provide that it is not illegal to discriminate when such discrimination is necessary as a bona fide occupational qualification; however, race or color cannot be used as a bona fide occupational defense. Therefore, even though the film is about Africa, Novo Films cannot advertise solely for African Americans.

Business Scenarios and Case Problems 21-2. Religious Discrimination. Gina Gomez, a devout Roman Catholic, worked for Sam's Department Stores, Inc., in Phoenix, Arizona. Sam's considered Gomez a productive employee because her sales exceeded $200,000 per year. At the time, the store gave its managers the discretion to grant unpaid leave to employees but prohibited vacations or leave during the holiday season—October through December. Gomez felt that she had a "calling" to go on a "pilgrimage" in October to a location in Bosnia where some persons claimed to have had visions of the Virgin Mary. The Catholic Church had not designated the site an official pilgrimage site, the visions were not expected to be stronger in October, and tours were available at other times. The store managers denied Gomez's request for leave, but she had a nonrefundable ticket and left anyway. Sam's terminated her employment, and she could not find another job. Can Gomez establish a prima facie case of religious discrimination? Explain. (See Title VII of the Civil Rights Act.)

21-2A. Religious discrimination Gomez cannot establish a prima facie case of religious discrimination. The facts show only a bona fide religious belief that she needs to go to Medjugorje at some time, not at a particular time. When an employee claims that religious beliefs require a particular pilgrimage, or some other duty, the employee must prove that this mandate is part of a bona fide religious belief. Otherwise, an employer would be forced to accommodate the employee's personal preference (in this problem, the timing of the trip). If the visions of the Virgin Mary were expected to be more intense in October, for example, or the Catholic Church urged her to go at that time, she would have a stronger case. But without such factors, she cannot satisfy a crucial element of a prima facie case: a conflict between her religious belief and her employment duties.

Business Scenarios and Case Problems 21-3. Spotlight on Dress Code Policies—Discrimination Based on Gender. Burlington Coat Factory Warehouse, Inc., had a dress code that required male salesclerks to wear business attire consisting of slacks, shirt, and a necktie. Female salesclerks, by contrast, were required to wear a smock so that customers could readily identify them. Karen O'Donnell and other female employees refused to wear smocks. Instead they reported to work in business attire and were suspended. After numerous suspensions, the female employees were fired for violating Burlington's dress code policy. All other conditions of employment, including salary, hours, and benefits, were the same for female and male employees. Was the dress code policy discriminatory? Why or why not? [O'Donnell v. Burlington Coat Factory Warehouse, Inc., 656 F.Supp. 263 (S.D. Ohio 1987)] (See Title VII of the Civil Rights Act.)

21-3A. SPOTLIGHT ON DRESS CODE POLICIES—Discrimination based on gender Yes. The dress code policy was illegal discrimination based upon gender. Unlike hair and grooming codes, which are based on well-established social expectations, there is no justifiable basis for women to wear smocks in the workplace. There is a natural tendency to believe that uniformed women wearing smocks have lower professional status than their male colleagues in business attire. The smock requirement thus perpetuated sexual stereotypes of inferiority. Therefore, the dress code policy violated Title VII of the Civil Rights Act of 1964.

Business Scenarios and Case Problems 21-4. Sexual Harassment by a Co-Worker. Billie Bradford worked for the Kentucky Department of Community Based Services (DCBS). One of Bradford's co-workers, Lisa Stander, routinely engaged in extreme sexual behavior (such as touching herself and making crude comments) in Bradford's presence. Bradford and others regularly complained about Stander's conduct to their supervisor, Angie Taylor. Rather than resolve the problem, Taylor nonchalantly told Stander to stop, encouraged Bradford to talk to Stander, and suggested that Stander was just having fun. Assuming that Bradford was subjected to a hostile work environment, could DCBS be liable? Why or why not? [Bradford v. Department of Community Based Services, 2012 WL 360032 (E.D.Ky. 2012)] (See Title VII of the Civil Rights Act.)

21-4A. Sexual harassment by a co-worker DCBS is possibly liable. Under Title VII, an employer may be liable for harassment by a co-worker if the employer knew or should have known about the harassment and failed to take immediate remedial action. Bradford's supervisor, Angie Taylor, failed to take appropriate remedial action despite having extensive notice that Stander was sexually harassing Bradford.

Business Scenarios and Case Problems 21-5. Age Discrimination. Paul Rangel was a sales professional for the pharmaceutical company sanofi-aventis U.S. LLC (S-A). For twenty years, Rangel had satisfactory performance reviews until S-A issued new "Expectations" guidelines that included sales call quotas and other standards that he failed to meet. After two years of negative performance reviews, Rangel—who was then more than forty years old—was terminated. The termination was part of a nationwide reduction of all sales professionals who had not met the "Expectations" guidelines, including younger workers. Did S-A engage in age discrimination? Discuss. [Rangel v. sanofi aventis U.S., LLC, 507 Fed. Appx. 786 (10th Cir. 2013)] (See Discrimination Based on Age.)

21-5A. Age discrimination No, sanofi-aventis U.S. LLC (S-A) does not appear to have engaged in age discrimination. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against individuals forty years of age or older. For the act to apply, an employer must have twenty or more employees, and the employer's business activities must affect interstate commerce. To establish a prima facie case, a plaintiff must show that he or she was (1) a member of the protected age group, (2) qualified for the position from which he or she was discharged, and (3) discharged because of age discrimination. If the employer offers a legitimate reason for its action, the plaintiff must show that the stated reason is only a pretext. In this problem, Rangel was over forty years old. But he also had negative sales performance reviews for more than two years before he was terminated as part of S-A's nationwide reduction in force of all sales professionals who had not met the "Expectations" guidelines, including younger workers. The facts do not indicate that a person younger than Rangel replaced him or that S-A intended to discriminate against him on the basis of age. Based on these facts, Rangel could not establish a prima facie case of age discrimination on the part of S-A. In the actual case on which this problem is based, in Rangel's suit against S-A under the ADEA, alleging age discrimination, a federal district court issued a judgment in S-A's favor. On Rangel's appeal, the U.S. Court of Appeals for the Tenth Circuit affirmed, according to the reasoning stated above.

21-6. Discrimination Based on Disability. Cynthia Horn worked for Knight Facilities Management-GM, Inc., in Detroit, Michigan, as a janitor. When Horn developed a sensitivity to cleaning products, her physician gave her a "no exposure to cleaning solutions" restriction. Knight discussed possible accommodations with Horn. She suggested that restrooms be eliminated from her cleaning route or that she be provided with a respirator. Knight explained that she would be exposed to cleaning solutions in any situation and concluded that there was no work available within her physician's restriction. Has Knight violated the Americans with Disabilities Act by failing to provide Horn with the requested accommodations? Explain. [Horn v. Knight Facilities Management-GM, Inc., 556 Fed.Appx. 452 (6th Cir. 2014)] (See Discrimination Based on Disability.)

21-6A. Discrimination based on disability No, Knight has not violated the Americans with Disabilities Act (ADA) by failing to provide Horn's requested accommodations. The ADA requires that certain employers "reasonably accommodate" the needs of persons with disabilities unless to do so would cause the employer to suffer "undue hardship." Thus, if an employee with a disability, with reasonable accommodation, can perform essential job functions, the employer must make the accommodation. Generally, employers should give primary consideration to employees' preferences in deciding what accommodations to make. But the ADA does not require that employers accommodate the needs of employees with disabilities who are not otherwise qualified to do the work. In the facts of this problem, Horn worked as a janitor for Knight. When she developed sensitivity to cleaning products, her physician gave her a "no exposure to cleaning solutions" restriction. She suggested to her employer that restrooms be eliminated from her route or that she be provided with a respirator as an accommodation to allow her to continue to work. Knight explained that she would be exposed to cleaning solutions in any situation because they were airborne, and concluded that there was no work available within her restriction. In other words, Horn's suggested accommodationswere not reasonable because neither one complied with her restriction. Further, it appears that Knight could not in any other way reasonably accommodate the restriction. In the actual case on which this problem is based, Horn filed a suit against Knight. The court dismissed her claim. The U.S. Court of Appeals for the Sixth Circuit affirmed, according to the reasoning set out above.

EXAMPLE Case Analysis 21.1 Bauer v. Lynch (4th cir. 2016)

3. Is it discrimination to have separate physical ability standards for men and women? EXAMPLE Case Analysis 21.1 Bauer v. Lynch (4th cir. 2016) - FBI requires that its applicants meet physical fitness standards. women: minimum of fourteen push-ups amost other requirements; Men: min of thirty. Whether this difference constituted discrimination on the basis of gender was at issue in the following case. - Jay Bauer passed his initial test to get admission to the Academy - but originally failed bc the push up part - he did amazing in all aspects at the academy, except the PFT - he was unable to pass the PFT at quantico (second test needed to graduate). He would have passed if the push-ups weren't a thing - due to PFT failure, Bauer was allowed to resign w/ possibility of future employment with the FBI; he immediately signed a resignation letter. Two weeks later, the FBI offered Bauer a position as an Intelligence Analyst in its Chicago Field Office. He accepted and has been employed in that position since. - * * * Bauer filed this Title VII action in [a federal district court] against [Loretta Lynch,] the Attorney General. According to the claims in Bauer's complaint, the FBI's use of the gender-normed PFT standards contravened * * * Title VII * * * which prohibits sex discrimination by federal employers. - In his summary judgment motion, Bauer maintained that the FBI's use of the gender-normed PFT standards was facially discriminatory [involving explicit categorization, such as by sex or race]. - district court agreed with Bauer, granting his motion for summary judgment; Attorney General filed a timely appeal. - Title VII requires that any "personnel actions affecting employees or applicants for employment" taken by federal employers "shall be made free from any discrimination based on * * * sex." such discrimination appears "where the evidence shows treatment of a person in a manner which but for that person's sex would be different." - * * * The district court applied [this] test and concluded that, because Bauer would have been held to a lower minimum number of push-ups had he been a woman, the gender-normed PFT standards constitute facial sex discrimination. The Attorney General maintains on appeal, however, that because the PFT assesses an overall level of physical fitness, and equally fit men and women possess innate physiological differences that lead to different performance outcomes, the PFT's gender-normed standards actually require the same level of fitness for all Trainees. In that way, the Attorney General contends, the PFT standards do not treat the sexes differently and therefore do not contravene Title VII. - * * * The Attorney General * * * maintains that * * * some differential treatment of men and women based upon inherent physiological differences is not only lawful but also potentially required. - equally fit men and women demonstrate their fitness differently. Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness. - Pursuant to the foregoing, we vacate the judgment of the district court and remand for * * * further proceedings.

Formation of the Agency Relationship: An agency relationship can arise in four ways:

A. Agency by agreement [of the parties] B. Agency by ratification C. Agency by Estoppel D. Agency by operation of law

Formation of the Agency Relationship: A. Agency by agreement

A. Agency by agreement: expressed or implied agreement that the agent will act for the principal and that the principal agrees to have the agent so act 1. May be an expressed agreement 2. May be an implied agreement example: man was not able to use his hands well enough to write but was otherwise mentally competent, so he had wife sighn for him

Defenses to Employment Discrimination

A. Business Necessity/ Job Related Reason - Employer must show a definite connection between the job requirement and job performance B. Bona Fide Occupational Qualification (BFOQ) - when a particular trait is essential for the job - viable defence in protected class trate essential disparate treatment case for job - Note that race, color, and national origin can never be BFOQs. - Generally, courts have restricted the BFOQ defense to situations in which the employee's gender or religion is essential to the job 1. religion: catholic church needs catholic priest 2. gender: - male prison and 25% of inmates are sex offenders, so women can not be prison guards but can do clerical work which is earns less money; so Defendant says: 1. Safety of women guards are more likely to be attacked because 25% of offenders 2. Putts other male guards at risk because they have to protect women guards 3. Effects the safety of inmates because fights are bad for everyone - the Safety of women guards alone is not enough to win the case and prove BFOW C. Seniority System - where promotions and other job benefits are distributed to workers with more years of service first.

Liability for Torts (negligence and intentional) page 124

A. employer's own negligence in negligent hireing/ retention of employees b. employer is also negligent for torts by employees doctrine of respondeat superior c. special errin exception

III. Americans with Disabilities Act of 1990 (ADA) A. What is the Plaintiff's BOP B. Other Procedures C. Definition of "disability" D. Explanation of terms in definition of disability E. Reasonable Accommodations F. Substance Abuse

Americans with Disabilities Act of 1990 (ADA), as amended, 2008: - prohibits discrimination against qualified individual on the basis of a disability. A "qualified individual" with a disability is someone... who with or without reasonable accommodations is qualified to perform the essential functions of the job * plaintiff has to be able to perform the job which they apply * they must be able to fit a definition of a disabled under the statute - law is why we have bars, ramps, handicap stalls, handicap classroom chars - existing facilities were given 10 years to get to coad; new facilities needed to be build in coad - why we have classroom learning disability

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 H. Constructive Discharge

Constructive Discharge - Employees who leave their jobs voluntarily can claim they were "constructively discharged" (as opposed to Wrongfully Discharged) if E'r (through supervisors or E'r himself) causes the employee's working conditions to be so intolerable that a reasonable person would be compelled to quit - if we didn't have this e'ers would have incentive to get ppl to quit - employee quits under intolerable working conditions, and they still have ability to sue Constructive Discharge applies to all forms of discrimination under several statutes, Civil Rights Act, Age and Disability Statutes in this chapter. It is just most commonly used in sexual harassment cases: next slide

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 G. Discrimination Based on (SEX) Gender

Discrimination Based on (SEX) Gender. There is no legislative history on what congress meant when it outlawed discrimination on the bases of "sex" which is now routinely called "gender". - Sex was added last min, so we have no idea of what it looks like; so it is court created and grows 1. Employer cannot classify jobs as male or female unless gender is a Bona fide occupational qualifications BFOQ - (see defences) 2. Height, weight, physical ability requirements can have disparate impact on women (but see defences) 3. Is it discrimination to have separate physical ability standards for men and women - see Case Analysis 21.1 Bauer v. Lynch 4. Employers cannot have seperate seniority list... 1 for men and 1 for women (be sure to look at defences) - you can have plan that happens to promote one over the other 5. Pregnancy discrimination act of 1978 amended Title VII, expanding the definition of gender discrimination to include discrimination based on pregnancy, childbirth or related medical conditions. - cannot treat wmn diff on basis of that criteria - example: you can't treat pregnancy disability different than other similar disability; you don't have disability plan & wmn pregnancy gives temp disability; you don't have to do anything for her - EXAMPLE Case 21.2 Young v. United Parcel Service, Inc.: Peggy Young was a UPS driver. When she became pregnant, her doctor advised her not to lift more than 20 lbs. UPS required drivers to lift up to 70lbs, and told Young that she could not work under a lifting restriction. She filed a suit in a federal district court against UPS, claiming an unlawful refusal to accommodate her pregnancy-related lifting restriction. She alleged that UPS had multiple light-duty-for-injury categories to accommodate individuals whose nonpregnancy-related disabilities created work restrictions similar to hers. The United States Supreme Court vacated the judgment of the U.S. Court of Appeals for the Fourth Circuit and remanded the case for further proceedings... she would win under ADA too 6. Wage Discrimination - only deals with gender and wage Equal Pay Act of 1963 (amendment to the FLSA) - requires equal pay for male and female employees working at the same establishment doing similar work. A. "Substantially Equal Test" - plaintiff has to prove jobs are substantially equal (not identical). BOP shifts to the em'er to justify what they have done. B. 4 exceptions: 1. seniority system 2. merit system 3. system that measures earnings by quality or quantity of production 4. a differential based on any factor other than sex; example: employment history, salary history, etc. C. BOP: 7. Discrimination against Transgender Persons EXAMPLE Bostock v. Clayton Co. Georgia (US 2020) THe US supreme court in June of 2020 held for the first time in history that sex discrimination under the CRA of 1964, Title VII includes discrimination against a worker based on their being transgendered or based on them being homosexual

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 F. Discrimination Based on Religion

Disparate Treatment 1. Accommodation by Employers - the employer must accommodate the employee's religious observances, practices, and beliefs, unless it would be an undue hardship on the employer. - reasonable accommodation - Employer's obligation is to offer an accommodation that removes the conflict between religion and the job - general undue hardship: a. excessively expensive b. causing employer to violate policies c. causing employer to violate law - can't rise only one employee up 2. Accommodations are balanced against Undue Hardship - employer doesn't have to put and undue hardship on the business EXAMPLE Case in Point 21.6: Leontine Robinson worked as an administrative assistant in the emergency department at Children's Hospital Boston. The hospital started requiring all employees who worked in or had access to patient-care areas to receive the influenza (flu) vaccine. When Robinson, who had taken a tetanus vaccine, refused to get the flu vaccine based on her religious beliefs, the hospital terminated her employment. Robinson filed a lawsuit alleging religious discrimination. The hospital argued that allowing Robinson to keep her patient-care position without receiving the vaccine would create an undue hardship. The court agreed and granted a summary judgment for the hospital.

III. Americans with Disabilities Act of 1990 (ADA) E. Reasonable Accommodations

Employers BOP 1. ADA requires employers to reasonably accommodate employees with disabilities 2. If an applicant or employee with disabilities, with reasonable accommodations, can perform essential job functions, Employer MUST make the accommodation. 3. Employer's obligations includes: a. make existing facilities accessible and useable b. job restructuring, modified work schedule, and buying or modifying equipment examples: job restructuring - mabe more breaks in a day; modified work schedule - time of day; and buying or modifying equipment - raising and lowering equipment for ppl in wheelchairs or who need to 4. Undue Hardship: Employer is not required to accommodate if said accommodation puts an undue hardship on the business; such as: - excessive financial cost - causing employer to violate own personal policy - violate another law

Case in Point 21.20 Johnson v. Fed Ex

Example of Seniority system: Cathalene Johnson, an African American woman, was a senior service agent for Federal Express Corporation (FedEx). After working for FedEx for more than seventeen years, she resigned and filed a suit against the company for discrimination based on race and gender, as well as for violation of the Equal Pay Act. Johnson claimed that FedEx had paid a white male co-worker about two dollars more per hour than she had received for basically the same position. FedEx argued that the man had seniority. He had worked for FedEx for seven years longer, was the most senior employee at the station where Johnson worked, and had been a courier in addition to being a service agent. The court ruled that FedEx's seniority system was fair and provided a defense to Johnson's claims

DEBATE THIS QUESTION IN THE PRACTICE AND REVIEW: Members of minority groups and women no longer need special legislation to protect them from employment discrimination.

Members of minority groups and women have made enough economic progress in the last several decades that they no longer need special legislation to protect them. There is little doubt that minorities and women suffered discrimination in the U.S. labor market for decades, if not longer. Today, in contrast, this country has seen much growth in the average incomes of all American, regardless of race or gender. The labor market is competitive, so employers who discriminate against minorities and women end up suffering from higher costs compared to non-discriminating employers. Certainly there is less discrimination against minorities and women than there was one hundred years ago. That does not mean, though, that we should scrap all legislation that protects these groups. More progress needs to be made to create a color-, age-, race-, and gender-blind employment market. Without existing anti-discrimination laws, those who suffer discrimination would have no place to term for redress of their grievances.

21-7. Business Case Problem with Sample Answer—Sexual Harassment. Jamel Blanton was a male employee at a Pizza Hut restaurant operated by Newton Associates, Inc., in San Antonio, Texas. Blanton was subjected to sexual and racial harassment by the general manager, who was female. Newton had a clear, straightforward anti-discrimination policy and complaint procedure. The policy provided that in such a situation, an employee should complain to the harasser's supervisor. Blanton alerted a shift leader and an assistant manager about the harassment, but they were subordinate to the general manager and did not report the harassment to higher-level management. When Blanton finally complained to a manager with authority over the general manager, the employer investigated and fired the general manager within four days. Blanton filed a suit in a federal district court against Newton, seeking to impose liability on the employer for the general manager's actions. What is Newton's best defense? Discuss. [Blanton v. Newton Associates, Inc., 593 Fed.Appx. 389 (5th Cir. 2015)] (See Title VII of the Civil Rights Act.)

Newton's best defense to Blanton's assertion of liability against the employer for its general manager's actions is the "Ellerth/Faragher affirmative defense." To establish this defense, an employer must show that it has taken reasonable care to prevent and promptly correct any sexually harassing behavior and that the plaintiff unreasonably failed to take advantage of any opportunity provided by the employer to avoid the harm. In this problem, Blanton was subjected to sexual harassment by the general manager at their place of employment, a Pizza Hut restaurant operated by Newton. Blanton alerted low-level supervisors about the harassment, but they, like Blanton, were subordinate to the general manager and had no authority over her. Newton had a clear, straightforward antidiscrimination policy and complaint procedure under which an employee was to complain to the harasser's supervisor in such a situation. Once Blanton finally complained to a manager with authority over the general manager, Newton promptly and effectively responded to Blanton's complaint. His delay in reporting the harassment to the appropriate authority can be construed as an unreasonable failure to take advantage of the opportunity provided by the employer to avoid the harm. In the actual case on which this problem is based, in Blanton's suit against Newton, a jury found that the plaintiff was harassed as he claimed, but also that the defendant proved the Ellerth/Faragher affirmative defense, and the court issued a judgment in the employer's favor. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Oncale v. Sundowner Offshore Services, Inc. landmark case

Same-Gender Harassment: In Oncale v. Sundowner Offshore Services, Inc., Oncale v. Sundowner Offshore Services, 523 U.S. 75, is a landmark decision of the US Supreme Court. The case arose out of a suit for sex discrimination by a male oil-rig worker, who claimed that he was repeatedly subjected to sexual harassment by his male co-workers with the acquiescence of his employer. Wikipedia

Bostock v. Clayton Co. (US 2020)

Sexual-Orientation Harassment Bostock v. Clayton Co. Georgia (US 2020) The US Supreme Court in June of 2020 held for the first time in history that sex discrimination under the CRA if 1964, Title VII included Discriminating against a worker based on their being transgendered or based on them being homosexual.

Discrimination Based on Military Status

The Uniformed Services Employment and Reemployment Rights Act (USERRA) - protects civilian job rights and benefits for members of the military, former military personnel, and reservists - vets can only be fired for cause - Public and private employers, even if they have as few as one employee - supervisors/ managers have personal liability for violations - USERRA makes military service and status a protected class

Erin, an employee of Fine Print Shop, is injured on the job. For Erin to obtain workers' compensation, must her injury have been caused by Fine Print's negligence? Does it matter whether the action causing the injury was intentional? Explain. (See Health, Safety, and Income Security.)

Workers' compensation laws establish a procedure for compensating workers who are injured on the job. Instead of suing to collect benefits, an injured worker notifies the employer of an injury and files a claim with the appropriate state agency. The right to recover normally is determined without regard to negligence or fault, but intentionally inflicted injuries are not covered. Unlike the potential for recovery in a lawsuit based on negligence or fault, recovery under a workers' compensation statute is limited to the specific amount designated in the statute for the employee's injury.

Agency law

a. definition b. employer - employee relationship c. employer - independent contractor relationship d. determining employee status e. IRS Criteria f. work for hire

business entities

a. sole proprietorship b. partnership c. corporation d. limited partnership e. limited liability company (LLC) f. limited liability partnership (LLP)

Liability for Torts (negligence and intentional) b. employer is also negligent for torts by employees doctrine of respondeat superior

b. employer is also negligent for torts by employees - wrongs harming third parties (civil liability - 3rd party sues employer for money) two part analysis 1. an employee (not independent contractor) 2. if the harm is committed within the course and scope of employment doctrine of respondeat superior - employer (principal) is liable for any harm caused to a third party by an employee (agent) committed by the employee (agent) in the course or scope of employment.

a agent who fails to use rznable diligence and skill in acting on behaf of P may be liable for bracying duety of __

performance

III. Americans with Disabilities Act of 1990 (ADA) C. Definition of "disability"

plaintiff has a disability if they have on of the three definitions of a disability: 1. Any physical or mental impairment that substantially limits one or more major life activities (MLA). 2. Having a record of such an impairment. OR 3. Being regarded by others as having such an impairment. - example: burn victim

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 H. Constructive Discharge sexual harassment:

sexual harassment - 2 types: 1. Quid Pro Quo: "this for that" tangible employment action results from a refusal to submit from sexual demand. employer is strictly liable regardless of policies. QPQ employer responsible because employer controls workplace and supervisor/ manager threat has to be carried out book: harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits. 2. Hostile Working Environment: no tangible economic losses are present, but the victim suffers from an environment at work which is hostel based on sex - example is touching and joking book: pattern of sexually offensive conduct runs throughout the workplace and the employer has not taken steps to prevent or discourage it. Ellerth/Faragher Affirmative Defense for Employer in HWE: An employer that can prove both elements normally will not be liable for a supervisor's harassment. a. employer took reasonable care to prevent and promptly corrected the behavior b. employee unreasonably failed to take advantage of corrective opportunities provided by the employer to avoid harm. Example: Meritor Savings V Vinson (US 1986) - 1st sex harassment case & Supreme Court saying what to prove - Vinson works at bank and alleges supervisor successfully did sex harrasment over 40 times; Taylor said it was consensual, and she got bored so is filing case - many facts were missing bc it is the 1st case - ISSUE: Is voluntary the standard for determining weather sex harrasment is involved? NO - Unwelcomeness: the Court sets the standard by explaining "weather the victim by her conduct, indicated that the alleged sexual advances were unwelcome [is the question]; not weather her actual participation was voluntary". - Totality of the circumstances: unwelcomeness is determined by the totality of the circumstance test. Does the victim based on the totality of the circumstances invite or accept the sexual harassment? everything about the victim is relevant: speech, dress, activities, etc., even silence - silence can be interpreted to mean acceptance/welcomeness. therefore, the victim has a ---duty to object based on the severity of the conduct. Faragher v. City of Boca Raton: - 4 factors that are weighted a. severity b. frequency c. physically threatening d. unreasonably interferes with someone's work 3. Retaliation by Employers: Employer who retaliates against employees for a sex harassment complaint; in a retaliation claim an individual asserts that she or he has suffered harm as a result of making a charge, testifying, or participating in a Title VII investigation or proceeding. 4. Employer Liability for Co-Workers Sexual Harassment: The employer is liable if the plaintiff proves the employer knew or should have known about the harassment and failed to take prompt reasonable corrective action. EXAMPLE Case 21.3 Franchina v. City of Providence: Lori Franchina, a rescue lieutenant with the Providence Fire Department in Rhode Island, was assigned to work a shift with fellow firefighter Andre Ferro. During the shift, Ferro subjected her to unprofessional sexual comments and conduct. Based on Franchina's account of Ferro's actions, fire chief Curt Varone filed an intra-department complaint charging Ferro with sexual harassment. No action was taken, however. Other firefighters then began to treat Franchina with contempt. She was spit on and shoved and was forced to undergo verbal assaults, insubordination, and other kinds of negative treatment. She submitted forty different complaints of harassment to her superiors. - Franchina filed a suit in a federal district court against the city of Providence, asserting that she had been subjected to a hostile work environment as a result of her gender in violation of Title VII. - city argued that Franchina presented no evidence to support her claim. - A jury issued a verdict in her favor and awarded damages. The city appealed. 5. Employer Liability for Sexual Harassment by Nonemployees - The employer is liable if the plaintiff proves the employer knew or should have known about the harassment and failed to take prompt reasonable corrective action. ex. Hooters girls sued bc customers sex harassing them and em'ers says it was part of the job; after the settlement, a nationwide policy said they can look but can't touch and they hired bouncer-type management. 6. Same-Gender Harassment: even before Bostock decision from 2020 the rules were in place - does the conduct create an environment that a reasonable person in the plaintiff's position would find abusive or hostile In Oncale v. Sundowner Offshore Services, Inc., the United States Supreme Court held Title VII protection extends to individuals who are sexually harassed by members of the same gender; proving harassment is hard but easier if the harasser is homosexual. People attempted to rape victim in the shower; sex orientation wasn't part of the case. 7. Sexual-Orientation Harassment Bostock v. Clayton Co. Georgia (US 2020) The US Supreme Court in June of 2020 held for the first time in history that sex discrimination under the CRA if 1964, Title VII included Discriminating against a worker based on their being transgendered or based on them being homosexual.

what is Case 20.1 example of BDI Enterprises' employment manual and personnel bulletin both state that, as a matter of policy, workers will be dismissed only for good cause. Julie Chin is an employee at BDI. If Chin reasonably expects BDI to follow this policy, a court may find that there is an implied contract based on the terms stated in the manual and bulletin.

violation of implied contract... exception of employment at will doc

Liability for Agent's Crimes

"you do the crime you do the time" - if workers do any kind of crime they do the time for it example: flower shop is paying money for damages of employee, if worker got a ticket worker pays the ticket fee... Em'er can choose to pay ticket, but they are not required to BOOK:An agent is liable for his or her own crimes. A principal or employer normally is not liable for an agent's crime even if the crime was committed within the scope of authority or employment. An exception to this rule is made when the principal or employer participated in the crime by conspiracy or other action. In addition, in some jurisdictions, a principal may be liable under specific statutes if an agent, in the course and scope of employment, violates certain regulations. For instance, a principal might be liable for an agent's violation of sanitation rules or regulations governing prices, weights, or the sale of liquor.

20-9. Wrongful Discharge. Stefan Sorril, a health teacher at Madison Middle School and a triathlete, appeared shirtless and showed off his "ripped" body as an extra on an episode of a new reality TV show. A week after the show aired, school officials called him into the district office and asked for his resignation. Sorril later claimed that he was pressured and coerced into resigning. He said the school officials had informed him that—as a result of his appearance on the show—he would no longer be offered tenure (a senior academic's contractual right not to be terminated without just cause). Sorril subsequently sued for wrongful discharge. (See Employment at Will.)

(a) An employee at will is a worker whose employment status can be terminated by the worker or his or her employer at any time. In the context of a wrongful discharge claim, an employee at will is a worker who has not been discharged in violation of an employment contract or a statutory law protecting employees. In this problem, Sorrill's employer told him that he would not be offered tenure and asked him to resign, which he did. The facts do not indicate that at the time, he was subject to an employment contract limiting the reasons for his dismissal. Without more, his status would be that of an employee at will and his wrongful discharge claim would fail. He might argue that his termination was procured in violation of his right to free expression under the First Amendment. If this right were held to apply to Sorrill's situation, his claim could succeed. (b) Under the common law doctrine of employment at will, an employer or employee can terminate their employment relationship at any time and for any reason. Exceptions to this doctrine are based on contract theory, tort theory, and public policy. Thus, an employee who is subject to an express or implied contract that limits the worker's dismissal to termination for good cause only cannot be discharged for other reasons. In some states, an employee who has been terminated after relying on an employer's false promise can successfully sue the employer for fraud. And an employee cannot be fired for a reason that violates a fundamental public policy. Here, the facts do not indicate that Sorrill can successfully assert some of the exceptions to the employment-at-will doctrine. He does not appear to have been subject to an express contract that limited the reasons for his dismissal, nor does it state that he relied on a false promise of his employer. In some states, an employment manual will be held to create an implied contractual obligation to refrain from discharge without good cause, depending on the employee's reasonable expectations. In a few states, all employment contracts are considered to contain an implied covenant of good faith that restricts dismissal for arbitrary or unjustified reasons. Sorrill might assert a claim based on one of these grounds if his termination occurred in an appropriate jurisdiction. And he might assert a claim that his dismissal violated his right to free expression under the First Amendment, which would of course violate a fundamental public policy. (c) Whenever an employer discharges an employee in violation of an employment contract or a statutory law protecting employees, the employee may bring an action for wrongful discharge. Even if an employer's actions do not violate any express employment contract or statute, the employer may still be subject to liability under a common law doctrine, such as a tort theory. In this problem, nothing indicates that Sorrill was subject to an express or implied employment contract limiting the reasons for his dismissal. Without a contract, his status for purposes of a wrongful discharge claim would be that of an employee at will, and the school district would not likely be held liable on a contract theory. Nothing in the facts provides a basis for a successful tort claim against the district. Sorrill might argue that his termination was procured in violation of his right to free expression under the First Amendment. If this right were held to apply and the district could be considered to have violated it, the district might be held liable for wrongful discharge.

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 - background and history

- JFK is prez at the time, democrat from north, and his V.P. Jonson is from TX so gives advice to JFK to come to south to govern support from the south. He got assassinated which fast passed the act. - broad statute (so is ADA) - Title VII of the Civil Rights Act prohibits discrimination against employees, applicants, and union members on the bases of protected class in the entire employment arrangement: hiring, firing, promotions, disciplinary procedures, promotions, benefits, etc. - - prohibits intentional (Disparate Treatment) and unintentional (Disparate Impact) discrimination -Anti-Retaliation Provision - Employees have to have 15 or more employes before they can sue for violation of CRA - VII (but think about state statute) - Title VII applies to employers with fifteen or more employees and labor unions with fifteen or more members. however, US Supreme Court ruled an employer with less than 15 employees is NOT automatically shielded from a lawsuit filed under Title VII.

types of corporations

- general classic corp that you can take public with stock - close corporation: small corporation that has a limited number of shareholders - less than 100; they can take a S-Corporation election to be taxed as a partnership; get out of double taxation - corporations can be non profit like churches and educational institutions

Employment - Related Immigration Laws A. The Immigration Reform and Control Act of 1986 (IRCA)

1. Cannot hire, employ, or recrute for a fee an illegal alien. 2. Employer must complete an I-9 for each employee showing that it has verified that the employee is either a US citizen or is authorised to work in the US. - 2 pieces of ID... one thing of each of 3 list: one w/ pic and other with name and no pic... EX: SSN and driver's license or work visa and passport 3. If employer violates IRCA, can be subjected to both civil and criminal penalties. PENALITES: Civil: 1st offense: $2,200 per illegal 2nd offense: up to $5,000 per illegal Subsequent offence: up to $11,000 pet illegal Criminal: Only if "pattern and practice" [many illegals on first offence or frequently caught em'er w only a few illigals] of hiring illegals is proven by ICE: fine up to $3000/illegal and up to 10 years of jail for employer... person in charge of employment decisions goes to jail reason fines aren't being imposed: Prez biden did executive order Oct. 21 to stop fines. They have to go before asitem hearing (don't show) and they get temporary work visa.

Federal Labor Laws C. Labor-Management Relations Act of 1947 (LMRA) "Taft-Heartley Act"

1. Created unfair union practices for unions - make sure the workers are protected and the unions aren't gaining power.. consequence of rights given to unions 2. Outlawed the closed shop: a firm/ employer that requires you to be a union membership as a condition of employment - you can still have a agency shop and union shops - union shops: you don't have to be a member to get the job, but you do have to join after a specified period of time; way for unions to collect dues - agency shop: you don't have to join the union but you still have to pay dues - having to pay dues is still allowed, bc they need to collect money to have power; to have collective bargaining pwr against employer 3. Gave states the right to pass "right-to-work" laws - Texas is a "right-to-work" state - "right-to-work" laws: in "right-to-work" state we have the agency shops and union shops outlawed; there is not was for a union to get power if power comes from money/dues bc we can't force workers to join unions; can't be forced to be member or pay dues

agency law d. determining employee status

1. How much control CAN 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? [do they have their own business?] If so, this points to independent-contractor, not employee, status. 3. Is the work usually done under the employer's direction or by a specialist without supervision? If the work is normally done under the employer's direction, this indicates employee status. 4. Does the employer supply the tools at the place of work? If so, this indicates employee status. 5. For how long is the person employed? If the person is employed for a long period of time, this indicates employee status. 6. What is the method of payment—by time period or at the completion of the job? Payment by time period, such as once every two weeks or once a month, indicates employee status. What degree of skill is required of the worker? Highly skilled workers indicate independent contractor

B. Exceptions to the Employment at Will Doctrine:

1. Implied Contract: guaranteed of continued employment can create implied contract 2. Implied Covenant of good Faith: Some States hold that the employment relationship creates an implied promise to act in good faith. So, if the employer fires an employee for an arbitrary or unjustified reason, it may be considered for bad faith. 3. Public Policy: applies when the employer fires a worker for reasons that violate a fundamental public policy of the state (or federal level).

Employee Privacy Rights B. Other Types of Monitor

1. Lie-Detector Tests 2. Drug Test 1. Lie-Detector Tests - Employee Polygraph Protection Act: a. prohibits employers from: 1. requiring or causing employees or job applicants to take lie-detector tests or suggesting or requesting that they do so 2. Using, accepting, referring to, or asking about the results of lie detector test taken by employees or applicants; and 3. taking or threatening negative employment-related action against employees or applicants based on results or refusal to take lie detector test. b. EXCEPTIONS: 1. government employers 2. security service firms - is a company that provides security 3. Pharmaceutical drug companies 4. Employers investigating losses attributable to theft, including embezzlement and the theft of trade secrets. - employers have to investigate theft and narrow down list of ppl to take test 2. Drug Test a. government employees - the 4th amendment APPLIES (prohibits unreasonable searches and seizures) amendment constrained usage; its allowed by statute for transportation workers, when drug use in a particular job may threaten public safety, and reasonable basis for suspecting public employees of drug use, courts often find that drug testing does not violate the Fourth Amendment. b. Private Employees - the 4th amendment does NOT apply; however, some states allow for it. rug testing of private-sector employees are governed by state law... many states allow DT, but restrict when and how test is performed. permissibility of test usually hinges on whether the employer's testing was reasonable - random drug tests and even "zero-tolerance" policy have been held reasonable

Employment - Related Immigration Laws B. Immigration Act of 1990

1. Limits the number of illegal immigrants entering the US by capping the number of via issued each year. 2. If an employer recruits employees from other countries, must show that there is a shortage of qualified US workers for the job and that bringing immigrants in the US will not adversely affect the labor market - Immigration law is to preserve jobs for americans... most laws promote disincentives to hire illegals; like employees rights to sue and they are entitled to minimum wage. - philosophy of immigration law is to deter illegal immigration... what would be biggest deterrent to em'er and em'ee... min wage deters em'er from hiring alien example case: - Jetlag is Indian and recruits Mr. Sing a illegal immigrant from india Jetlag said if Sing worked for him if he would receive a. room and board b. college tuition c. 3 years of owning the business with Jetlag - Mr. Sing said he would sue Jetlag for not withholding his end of the business, and Jetlag called immigration. Sing spent 18 mounts in deportation facility then got deported. - sing got work visa, came back, and sued and won minimum wage for every hour worked.

Rick Saldona worked as a traveling salesperson for Aimer Winery. Sales constituted 90 percent of Saldona's work time. Saldona worked an average of fifty hours per week but received no overtime pay. Saldona had worked for Aimer for ten years when his new supervisor, Caesar Braxton, claimed that he had been inflating his reported sales calls and required him to submit to a polygraph test. Saldona reported Braxton to the U.S. Department of Labor, which prohibited Aimer from requiring Saldona to take a polygraph test for this purpose. Shortly after that, Saldona's wife, Venita, fell from a ladder and sustained a head injury while employed as a full-time agricultural harvester. Saldona presented Aimer's human resources department with a letter from his wife's physician indicating that she would need daily care for several months, and Saldona took leave for three months. Aimer had sixty-three employees at that time. When Saldona returned to Aimer, he was informed that his position had been eliminated because his sales territory had been combined with an adjacent territory. Using the information presented in the chapter, answer the following questions. 1. Would Saldona have been legally entitled to receive overtime pay at a higher rate? Why or why not? 2. What is the maximum length of time Saldona would have been allowed to take leave to care for his injured spouse? 3. Under what circumstances would Aimer have been allowed to require an employee to take a polygraph test? 4. Would Aimer likely be able to avoid reinstating Saldona under the key employee exception? Why or why not?

1. Over 90 percent of Saldona's time was spent on sales. As an outside salesperson, Saldona is exempt from the overtime rules established by the Fair Labor Standards Act. Even under the rules as revised in 2004, Saldona would not qualify for overtime pay. 2. The Family and Medical Leave Act (FMLA) applied to Saldona's employer, Aimer Winery, because Aimer had over fifty employees. Under the FMLA, Saldona would have been entitled to up to twelve weeks of unpaid medical leave to care for his injured wife. 3. The Employee Polygraph Protection Act generally prohibits employers from requiring applicants or employees to take lie-detector tests. The only time employers are permitted to use polygraph tests under the act, is when investigating losses attributable to theft, including embezzlement or theft of trade secrets. Therefore, if Aimer had suffered these types of losses, it could use polygraphs as part of its investigation. 4. It is unlikely Saldona was a "key employee" defined as those in the top ten percent of an organization. He had a sales territory and reported to a sales supervisor. Hence, he was covered by the FMLA and his position would be protected

Federal Labor Laws A. Norris-LaGuardia Act of 1932

1. Protected peaceful strikes, picketing, and boycotts 2. Prohibits federal courts from issuing injunctions against unions engaged in peaceful strikes protects our rights - in the past worker would strike and e'er would get injunction and make them work, so objective wasn't accomplished

Federal Labor Laws D. Labor-Management Reporting and Disclosure Act of 1959 (LMRDA); "Landrum-Griffin Act"

1. Purpose was to regulate internal union business procedures. 2. Established an employee bill of rights - what workers have the right to demand from our union 3. Established reporting requirements for the union 4. Established union member rights - such as rights on voting, meetings, nominate officials, and a REALLY important one is a right to know what your dues are being spent on - there were still unions taking advantage of workers so we needed internal regulation of the unions themselves, thats what the LMRDA does

Worker Health and Safety B. State Worker's Compensation Laws

1. Requirements for Receiving Workers' Compensation: a. must have an employment relationship. b. workers injury must have been accidental c. Worker's injury must have occurred on the job or in the course of employment. - at school athletes medical bill gets payed 2. Workers' Compensation versus Litigation a. an employee's acceptance of workers' compensation benefits bars the employee from suing for injuries caused by the employer's negligence. b. Employer cannot raise common law defence c. A employee can sue the employer who intentionally injures the worker. - owner commits intentional tort like punch employee

Formation of the Agency Relationship: C. Agency by Estoppel

1. The principal's actions creates the appearance of an agency that does not actually exist 2. A third person reasonably believed that the agency existed. - When this occurs, the principal is "estopped to deny" (prevented from denying) the agency relationship. 3. Case in Point 19.5: Francis Azur was president and chief executive officer of ATM Corporation of America. Michelle Vanek was Azur's personal assistant. Among other duties, she reviewed his credit-card statements. For seven years, Vanek took unauthorized cash advances from Azur's credit-card account with Chase Bank. The charges appeared on at least sixty-five monthly statements. When Azur discovered Vanek's fraud, he fired her and closed the account. He filed a suit against Chase, arguing that the bank should not have allowed Vanek to take cash advances. The court concluded that Azur (the principal) had given the bank reason to believe that Vanek (the agent) had authority. Therefore, Azur was estopped (prevented) from denying Vanek's authority.

Family Medical Leave Act of 1933 (FMLA) - Clinton created B. Requirements for Family or Medical Leave:

1. To care for a newborn baby within one year of birth (men and women are entitled) 2. To care for an adopted or foster child within one year of the placement with the employee. 3. To care for the employee's spouse, child, or parent with a "serious health condition". 4. When employee has a "serious health condition" making them unable to perform the essential functions of her or his job. 5. Exigent circumstances arising out of the fact that spouse, son, daughter, or parent is a covered military member on active duty - get up to 26 weeks in 12- month period; aka non-med emergency from deployment... example: worker can leave to arrange for child care when a spouse is being deployed overseas. - IF worker gets wrongfully discharged that's discrimination - is you sue you can get money, job back, huge remedies - you DO reveal info on why you are taking leave on notice - break can be intermediate

Agency law a. definitions

1. agent - a person who agrees to represent our act on behalf of another [the principal] 2. principal - the person whom the agent represents or acts on behalf of. Principal has the right to control the agents conduct in matters entrusted to the agent 3. fiduciary relationship - the relationship involves trust and confidence - all employees that deal with the public are agents - employees and independent contractors are different

Agent's Authority A. Expressed Authority

1. can be written or oral 2. authority is clear, direct and in definite terms 3. The Equal Dignity Rule: In most states IF: the contract being executed is or must be in writing, then the agent's authority must also be in writing too. * sometimes has to be expressed and written LIKELY TEST QUESTION: Real estate contracts have to be written. married couple have joint ownership, so if one spouse is out of town, you need to get written power of attorney for the other spouse to get land. They will call the spouse too. exceptions to the equal dignity rule: 1. An executive officer of a corporation normally can conduct ordinary business transactions without obtaining written authority from the corporation. 2. When the agent acts in the presence of the principal - have wife sign for husband with broken hand 3. When the agent's act of signing is merely perfunctory (superficial/ a formality) Power of Attorney: special or general - gives agent express authority (is the best evidence of express authority) - in Texas we have general power of attorney form [for the exceptions prof sayd know words, understanding is not necessary] page 122

Family Medical Leave Act of 1933 (FMLA) - Clinton created A. coverage and application

1. employers who have 50 or more employees must provide employees with up to 12 weeks of unpaid family or medical leave during any 12-month period 2. During the leave, the employer must continue the worker's health care coverage. 3. Employee is guaranteed to return to the same or a comparable position after leave 4. EXCEPTIONS to coverage: a. "Key" employee exception - top 10% of earners POSITION is not preserved b. mush have worked at least 1 year with the company c. must have worked at least 1250 hours in the preceding year - so they are not a part time employee

Federal Labor Laws B. National Labor Relations Act (NLRA) of 1935 "Wagner Act"

1. established the rights of employees to form and join unions, engage in collective bargaining, and strike. 2. Created unfair labor practices for employers - certain practises that are illegal for e'er to engage in... ex: e'er refused to deal w/ appointed individual who bargains... another ex is discriminating against worker bc they joined union, like firing the worker 3. created the National Labor Relations Board (NLRB) - administrative agency that oversees all things related to unions, policies, elections [to see if u want union to join] Wagner is senator who accomplished the bill after this was made it gave unions huge pwr, to the point of post war inflation... unions were doing what was best for the union, not the workers of em'ers... in response the LMRA was passed

variations of partnerships

1. limited partnership 2. limited liability partnership

Liability for Contracts B. Authorised Acts

1. principal is obligated to perform the contract 2. Agent's liability depends: a. disclosed principal - agent has no contractual liability for principles non performance b. partially disclosed principal - agent is treated as party to the contract c. undisclosed principal - Agent is liable but entitled to indemnification from principle

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 A. PROTECTED CLASS

1. race 2. color 3. national origin 4. religion 5. sex/ gender

Lynne Meyer, on her way to a business meeting and in a hurry, stopped at a Buy-Mart store for a new car charger for her smartphone. There was a long line at one of the checkout counters, but a cashier, Valerie Watts, opened another counter and began loading the cash drawer. Meyer told Watts that she was in a hurry and asked Watts to work faster. Instead, Watts slowed her pace. At this point, Meyer hit Watts. It is not clear whether Meyer hit Watts intentionally or, in an attempt to retrieve the car charger, hit her inadvertently. In response, Watts grabbed Meyer by the hair and hit her repeatedly in the back of the head, while Meyer screamed for help. Management personnel separated the two women and questioned them about the incident. Watts was immediately fired for violating the store's no-fighting policy. Meyer subsequently sued Buy-Mart, alleging that the store was liable for the tort (assault and battery) committed by its employee. Using the information presented in the chapter, answer the following questions. 1. Under what doctrine discussed in this chapter might Buy-Mart be held liable for the tort committed by Watts? 2. What is the key factor in determining whether Buy-Mart is liable under this doctrine? 3. How is Buy-Mart's potential liability affected by whether Watts's behavior constituted an intentional tort or a tort of negligence? 4. Suppose that when Watts applied for the job at Buy-Mart, she disclosed in her application that she had previously been convicted of felony assault and battery. Nevertheless, Buy-Mart hired Watts as a cashier. How might this fact affect Buy-Mart's liability for Watts's actions?

1. the doctrine of respondeat superior, under which the employers may be held liable for the actions of their agents or employees, would apply in this situation. the concept of respondeat superior is based on the assumption that employers are usually in a better position to absorb the cost that may result from agent's or employee's torts. 2A. Key factor Under the doctrine of respondeat superior, an employer is responsible for torts committed by agents or employees in the course and scope of their employment. 3A. Potential liability Buy-Mart would be liable in either case under the doctrine of respondeat superior, which does not distinguish between the two types of torts. If Watts's wrongful conduct occurred in the scope of employment, then Buy-Mart would be liable. 4A. Employer's knowledge An employer who knows or should know that an employee has a propensity for committing tortious acts is liable for the employee's acts even if they would not ordinarily be considered within the scope of employment. Thus, in this scenario, even if Watts's actions were not in the scope of employment (for instance, if Watts attacked Meyer in the parking lot), Buy-Mart would still be liable.

Ch 20 employee relationships Employment at Will C. Wrongful discharge

1. the employer has fired the employee [before term is up (also breach of contract)] in violation of the employment contract between the parties; or 2. the employer has fired the employee in violation of a statute or common law.

19-5. Agency Relationships. Standard Oil of Connecticut, Inc., sells home heating, cooling, and security systems. Standard schedules installation and service appointments with its customers and then contracts with installers and technicians to do the work. The company requires an installer or technician to complete a project by a certain time but to otherwise "exercise independent judgment and control in the execution of any work." The installers and technicians are licensed and certified by the state. Standard does not train them, provide instruction manuals, supervise them at customers' homes, or inspect their work. The installers and technicians use their own equipment and tools, and they can choose which days they work. Standard pays a set rate per project. According to criteria used by the courts, are these installers and technicians independent contractors or employees? Why? [Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act, 320 Conn. 611, 134 A.3d 581 (2016)] (See Agency Law.)

19-5A. Agency relationships According to criteria used by the courts, the installers and technicians who contract with Standard to install and service the company's products in its customers' homes are classified as independent contractors. In deciding whether a worker is an employee or an independent contractor, courts consider a number of factors, including the following. 1. The degree of control that the employer exercises over the work. 1. The degree of control that the employer exercises over the work. 2. Whether the worker is engaged in an occupation distinct from the business of the employer. 3. The amount of supervision that the employer imposes. 4. Who supplies the tools. 5. The duration of employment. 6. The timeframe of payment for the work (periodically or per-project). 7. The degree of skill required of the work. The degree of control is the most important factor. Standard sold home heating, cooling, and security systems, scheduled appointments with its customers for installation and service, and contracted with installers and technicians to do the work. The company required an installer or technician to finish by a certain time, but otherwise encouraged each individual to "exercise independent judgment and control in the execution of any work." The installers and technicians were licensed and certified by the state. Standard did not provide training, instruction manuals, supervision at customers' homes, or inspection of the work. The workers used their own equipment and tools, and chose which days to work (if at all—they were free to accept or reject any assignment). Standard paid a set rate per project. These facts indicate that the installers and technicians should be categorized as independent contractors, not employees. In the actual case on which this problem is based, Standard classified the workers as independent contractors. The state ruled that they should have been classified as employees, and assessed $41,501.38 in unpaid unemployment contribution taxes, plus interest. From adverse state agency and court decisions, Standard appealed. The Connecticut Supreme Court reversed and remanded. On proof of the facts in this case set out above, Standard "satisfied its burden of showing that the installers/technicians were free from its control and direction."

Exceptions to the Employment at Will Doctrine: Implied Covenant of Good Faith

2. Implied Covenant of good Faith: Some States hold that the employment relationship creates an implied promise to act in good faith. So, if the employer fires an employee for an arbitrary or unjustified reason, it may be considered for bad faith. Bad faith: treating worker in a horrable way or taking advantage of a worker - Advantage of a worker Example: quitting or firing within the quarter means you don't get compensation for the entire quarter... the best worker was fired two days before end of quarter... worker won case.

Exceptions to the Employment at Will Doctrine: Public Policy

3. Public Policy: applies when the employer fires a worker for reasons that violate a fundamental public policy of the state (or federal level). What is Public Policy? what's good for society as a whole Where do you find it? State Laws a. Firing violates common law rules, including Tort Law 1. em'er directs em'ee to commit a crime - example: (relevant with states so text Q. for sure) Employee is told by someone with firing and hiring ability to do something illegal... you say no and get firered... worker refuse to do crime 2. Example 20.2 Fraud (tort) by the employer - Fraud might be alleged when an employer made false promises to a prospective employee. example: Goldfinch Consulting, Inc., induces Brianna to leave a lucrative job and move to another state by offering her "a long-term job with a thriving business." In fact, Goldfinch is not only having significant financial problems but is also planning a merger that will result in the elimination of the position offered to Brianna. If she takes the job in reliance on Goldfinch's representations and is fired shortly thereafter, Brianna may be able to bring an action against the employer for fraud. - G inc. knew the merger was happening and lost job b. Employer fires employee for whistleblowing - Definition of WB: when employee tells a gov official, upper mgmt, or the press that her employer hs engaged in some unsafe or illegal activity - Repeat something which leads to getting fired Statues for Protecting Whistleblowing: 1. (Federal) WB protection Act of 1989 - Law protected ONLY federal government workers 2. Most states have whistleblower statutes that protect employees a. public employee WB act b. nursing home 3. many other statutes prevent retaliation (similar to WB)

course and scope of employment

8 factors that determine course and scope 1. Whether the employee's act was authorized by the employer. 2. The time, place, and purpose of the act. 3. Whether the act was one commonly performed by employees on behalf of their employers. 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 (such as a truck or a machine) by which an injury was inflicted. 7. Whether the employer had reason to know that the employee would perform the act in question and whether the employee had done it before. 8. Whether the act involved the commission of a serious crime. additional basic rules applicable to the course and scope: 1. going and coming rule - employee traveling to and from work is not acting in the course in scope of employment What about a traveling salesperson? 2. special errand exception - if the employee is on a special errand for the employer at the time of the accident, the employer IS liable - on the way to the errand is within the scope... once the errand is done it is outside 3. distinction between frolic and detore a. detour - employee is still in the course and scope a personal errand that is not so ignoring of em'ers interest, so don't leave C&S look at actions effect on employer b. frolic - employee is outside of course and scope personal errand where we appear to be ignoring the effect on em'er example: truck driver goes to bar and gets drunk on break... implied you don't drink at lunch and drinking and driving has effect on employer

Liability for Contracts

A. Definition B. Authorised Acts C. Unauthorised acts

Ch 20: Wages, Hours, and Layoffs what act was put in place

A. Fair Labor Standards Act of 1938 (FLSA) - one of FDR acts 1. Child Labor Rules 2. Minimum Wage 3. Tipped Workers 4. Overtime idk if u have to know but BOOK: The Fair Labor Standards Act (FLSA) extended wage-hour requirements to cover all employers engaged in interstate commerce or in producing goods for interstate commerce. Certain other types of businesses were included as well. The FLSA, as amended, provides the most comprehensive federal regulation of wages and hours today.

Wages, Hours, and Layoffs Fair Labor Standards Act of 1938 (FLSA) 2. Minimum Wage

A. Federal: $7.25/hour B. State: Tx doesnt have a higher min wage than federal Violations Employers get away with: - em'er makes em'ee buy something to work - like uniform, but only violates first few hrs - em'ee doesn't make enough in tips to hit min wage, so em'er pools tips to make everyone make min wage

Liability for Independent Contractor's Torts a. general rule b. exceptions

A. General rule: Person who hires an independent contractor is not liable if a 3rd party is injured by the acts of the independent contractor preforming the acts (This is because the employer does not have the right to control the details of an independent contractor's performance) B. Exceptions 1. Right to control - employer has right to control actions of the hiree... employers have a incentive to label person as independent contractor... if the court says they are to classify the person as employee, then they are employee 2. Inherently dangerous (or hazardous) activities - if you hire someone for work that is inherently dangerous then the company is liable idea of strict liability recognize anything highly risky, toxic, or explosive... like the transportation or dispensing of it

Agent's Authority C. Apparent Authority

Apparent authority arises from what the principal causes a third party to believe. 1. pattern of conduct: Apparent authority usually comes into existence through a principal's pattern of conduct over time. 2. apparent authority and Estoppel: A court can apply the doctrine of agency by estoppel when a principal has given a third party reason to believe that an agent has authority to act. If the third party honestly relies on the principal's representations to his or her detriment, the principal may be estopped (prevented) from denying that the agent had authority. EXAMPLE: Francis Azur was president and chief executive officer of ATM Corporation of America. Michelle Vanek was Azur's personal assistant. Among other duties, she reviewed his credit-card statements. For seven years, Vanek took unauthorized cash advances from Azur's credit-card account with Chase Bank. The charges appeared on at least sixty-five monthly statements. When Azur discovered Vanek's fraud, he fired her and closed the account. He filed a suit against Chase, arguing that the bank should not have allowed Vanek to take cash advances. The court concluded that Azur (the principal) had given the bank reason to believe that Vanek (the agent) had authority. Therefore, Azur was estopped (prevented) from denying Vanek's authority.

Worker Health and Safety C. Income Security HIPPA

BOOK: The Health Insurance Portability and Accountability Act (HIPAA) contains provisions that affect employer-sponsored group health plans. For instance, HIPAA restricts the manner in which employers collect, use, and disclose the health information of employees and their families. Employers must designate privacy officials, distribute privacy notices, and train employees to ensure that employees' health information is not disclosed to unauthorized parties. Failure to comply with HIPAA regulations can result in civil penalties of up to $100 per person per violation (with a cap of $25,000 per year). Employers are also subject to criminal prosecution for certain types of HIPAA violations. An employer can face up to $250,000 in criminal fines and imprisonment for up to ten years if convicted.

Disparate impact Example

Brian PD has a weight requirement of 185lbs, which has dicriminary impact on women not aimed at a protected class and everyone is weighed neutrually defendant employer should argue job related reason [not necessary to win] . need to be large to take down criminals - po po use other things than bod weight such as guns, tasers, etc. . is body weight essential for taking and holding people down? - maybe have small guy take down big guy to prove - in particular situation weight is essential TEST PURPOSES: discriminant and not easy defended by employer; employer physical ability is defensible position

Employment at will Exception: Public Policy - Employer fires employee for whistleblowing

Definition of WB: when employee tells a gov official, upper mgmt, or the press that her employer hs engaged in some unsafe or illegal activity - Repeat something which leads to getting fired Statues for Protecting Whistleblowing: 1. (Federal) WB protection Act of 1989 - Law protected ONLY for federal government workers 2. Most states have whistleblower statutes that protect employees a. public employee WB act b. nursing home example of statues: - filing workers comp claim - case 20.3 and 20.1 and caterpillar, inc v, sudlow - anti-discrimination statutes: federal/state discrimination laws ch. 21, union laws/ union membership ch. 22 EXAMPLES OF WB STATUTES IN TEXAS: Public Employee WB act: - ask employee to commit crime - employer violates tort law like commiting fraud on the employee - employer fires employee for WB... if there is wb protection (public policy protection in the law) [other person says ack its: protects state government Em'ee: have to see, report illegal activity in good faith] Other TX WB Statues: Nursing Home Workers Act - requires reporting abuse of elderly within 48 hours, workers can be charged with failure to report; the job should protect us because it's illegal if we don't report. 3. many other statutes prevent retaliation (similar to WB)

Griggs Vs. Duke Power (U.S. 1971)

Early case example to help understand Title VII - discrimination is intentional & unintentional - prohibits fair and form practices with discrimitory results - we must connect policies to the job: proof gives secretaries grammar test and typing test it does not test in abstract - Duke Power Co. has a policy where African Americans will get hired but only to work in labor department (discriminates them from whits). To get out of labor department you have to take aptitude test and have high school diploma... at this time AA's had depressed educational opportunities, so griggs sues and wins case.

Employee Privacy Rights A. Electronic Monitoring in the Workplace Employee Privacy Protection

Employee Privacy Protection a. Tort laws - intrusion private and public/gov employees have these protections. Courts balance the employees reasonable expectation of privacy vs. employer's interest - employer interest: liability issues, want to know to protect employees efficiency, discipline, safety concerns - majority of states side with employer - When does an employee have a reasonable expectation of privacy? if a company says employer does not monitor email and you rant on the company email about the employer... then the employer sees is and fires employee... the employee says they have the right to privacy... courts say employee should not have a reasonable expectation of privacy, despite policy. employee was using everything company owned... if he was using a personal computer, personal email, employer can NOT check. em'ee cannot reasonably expect interactions to be private if em'er informed comm are monitored... also em'ee cannot reasonably expect privacy when using system provided by em'er b. Statutory Protections: The Electronic Communications Privacy Act of 1986 - prohibits the intentional interception of any wire or electronic communication or the intentional disclosure or use of information obtained by the interception. EXCEPTIONS: 1. Consent 2. Business-extension exception - employer may monitor employee electronic communication in the ordinary course of business.

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 - B. Procedures under Title VII

Equal Employment Opportunity Commission (EEOC): 1. EEOC 2. Employee must file a claim with EEOC first [before a lawsuit can be brought against the employer] - An employee alleging discrimination must exost all EEOC procedures before having court jurisdiction to hear case - EEOC may investigate the dispute and attempt to obtain the parties' voluntary consent to an out-of-court settlement. If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf. 1. EEOC takes case for you 2. EEOC gives you "right to sue" letter EEOC does not investigate every claim of employment discrimination. typically inv "priority cases," such as cases involving retaliatory discharge (firing an employee in retaliation for submitting a claim to the EEOC) and cases involving types of discrimination that are of particular concern to the EEOC. If the EEOC decides not to investigate a claim, the EEOC issues a "right to sue" that allows the employee to bring his or her own lawsuit against the employer.

T/F workers comp laws cover all em'ee in all states

F this law does not cover all em'ee; although statutes very in their coverage from state to state, they often exclude domestic workers (such as maids), agriculture workers, temp em'ees, and em'ee of common carrriers ( such as trucking cumpanies)

Case 20.3 Ballard v. Chicago Park District (7th cir. 2014)

FMLA leave for trip to Las Vegas aas an "end of life" goal for dying mother was protected - care not restricted to a particular place, like "home" - Beverly Ballard worked for the Chicago Park District and lived and is primary caregiver for her mom Sarah who has end-stage heart failure. - she worked with Horizon Hospice and they created a plan for her moms end-of-life goal, a "family trip" to Las Vegas ... she was attending as her caregiver - Beverly asked the Park District for unpaid time off under the Family and Medical Leave Act (FMLA). The employer refused, but Beverly and Sarah took the trip as planned - Park District terminated Beverly for "unauthorized absences." - She filed a suit in a federal district court against the employer. - The court issued a decision in Beverly's favor. - The Park District appealed, arguing that Beverly had been absent from work on a "recreational trip." COURT LANGUAGE - FMLA says shes entitled to leave "in order to care for" a family member with a "serious health condition." and does not restrict care to a particular place or geographic location - Sarah's basic medical needs did not change while she was in Las Vegas; In fact, * * * a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of insulin and pain medicine. Thus, [Beverly] requested leave in order to provide physical care. he Park District describes [Beverly's] travel as a "recreational trip" or a "non-medically related pleasure trip." It also raises the specter that employees will help themselves to unpaid FMLA leave in order to take personal vacations, simply by bringing seriously ill family members along. So the Park District means to argue is that the real reason Beverly requested leave was in order to take a free pleasure trip, and not in order to care for her mother. * * * However, * * * an employer concerned about the risk that employees will abuse the FMLA's leave provisions may of course require that requests be certified by the family member's health care provider. And any worries about opportunistic leave-taking in this case should be tempered by the fact that this dispute arises out of the hospice and palliative care context. decision and remidy The U.S. Court of Appeals for the Seventh Circuit affirmed the lower court's judgment. Under the FMLA, an eligible employee is entitled to take leave from work to care for a family member with a serious health condition. The care is not restricted to a particular place (such as "at home").

Titles of Civil rights act I II VI VII

I: voting rights II: public administration VI: education operation & activities VII: employment

Agent's Authority B. Implied Authority

Implied Authority: Is reasonably necessary to carry out express authority; and can be conferred by custom or inferred from the agencies position

Exceptions to the Employment at Will Doctrine: Implied Contract

Implied Contract: guaranteed of continued employment can create implied contract If employee is fired outside the terms of the implied contract they may succeed in an action for breach of contract even though no written employment contract exists. 2 guaranteeing statements: a. you have a job as long as you do a good job b. we won't fire you without (good) cause. Employment at will vs. contract: - employees have a term - can't quit or fire if still in term - can fine employee if they commit crime against the company... example: stealing from company vast majority of employees in U.S. generally the key consideration in determining whether an employment manual creates an implied contractual obligation is the employee's reasonable expectations.

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 - A. Intentional Discrimination

Intentional Discrimination: Disparate Treatment A. Prima Facie Case: 1. plaintiff is a member of the protected class. 2. Plaintiff applied and was qualified for the job; 3. Plaintiff was rejected by the employer. 4. Employer continued to seek applicants for the position or filled the position with a person not in a protected class. (plaintiff is the protected class) B. Burden of Proof: 1. Plaintiff must first prove the prima facie case. 2. Burden then shifts to employer to show a legitimate reason for not hiring plaintiff 3. Burden shifts back to plaintiff to prove that the employer's reason was a mere pretext - Pi who meets requirements made out prima facie case of illegal discrimination in hiring and will win in the absence of a legally acceptable employer defense. if Pi meets BOP, the defendant gets opp to defend themself - employers defences: 1. performance reviews 2. work history 3. education BOOK: - intent may sometimes be difficult to prove, courts have established certain procedures for resolving disparate-treatment cases. - A plaintiff who sues on the basis of disparate-treatment discrimination must first make out a prima facie case. Prima facie is Latin for "at first sight" or "on its face." Legally, it refers to a fact that is presumed to be true unless contradicted by evidence.

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 - D. Intentional and Unintentional Discrimination

Intentional Discrimination: Disparate Treatment Unintentional Discrimination: Disparate Impact

19-4. Business Case Problem with Sample Answer—Determining Employee Status. Nelson Ovalles worked as a cable installer for Cox Rhode Island Telecom, LLC, under an agreement with a third party, M&M Communications, Inc. The agreement stated that no employer-employee relationship existed between Cox and M&M's technicians, including Ovalles. Ovalles was required to designate his affiliation with Cox on his work van, clothing, and identification badge. Cox had minimal contact with him, however, and had limited power to control how he performed his duties. Cox supplied cable wire and similar items, but the equipment was delivered to M&M, not to Ovalles. On a workday, while Ovalles was fulfilling a work order, his van rear-ended a car driven by Barbara Cayer. Is Cox liable to Cayer? Explain. [Cayer v. Cox Rhode Island Telecom, LLC, 85 A.3d 1140 (R.I. 2014)] (See Agency Law.)

No. Cox is not liable to Cayer for any injuries or damage that she sustained in the accident with Ovalles. Generally, an employer is not liable for physical harm caused to a third person by the negligent act of an independent contractor in the performance of a contract. This is because the employer does not have the right to control the details of the performance. In determining whether a worker has the status of an independent contractor, how much control the employer can exercise over the details of the work is the most important factor weighed by the courts. In this problem, Ovalles worked as a cable installer for Cox under an agreement with M&M. The agreement disavowed any employer-employee relationship between Cox and M&M's installers. Ovalles was required to designate his affiliation with Cox on his van, clothing, and an ID badge. But Cox had minimal contact with Ovalles and limited power to control the manner in which he performed his work. Cox supplied cable wire and other equipment, but these items were delivered to M&M, not Ovalles. These facts indicate that Ovalles was an independent contractor, not an employee. Thus, Cox was not liable to Cayer for the harm caused to her by Ovalles when his van rear-ended Cayer's car. In the actual case on which this problem is based, the court issued a judgment in Cox's favor. The Rhode Island Supreme Court affirmed, applying the principles stated above to arrive at the same conclusion.

Worker Health and Safety A. Occupational Safety & Health Act of 1970

Occupational Safety & Health Act of 1970: provides for specific standards that employers must meet in an attempt to ensure safe and healthful working conditions for employees 1. Agencies - 3 fed agencies have a role related to the Act: a. Occupational Safety and Health Administration (OSHA) - sets forth standards, makes inspections, and end enforces the Act b. National Institute for Occupational Safety & Health (NIOSH) - conducts research on safety and health problems and recommends standards for OSHA to adopt. c Occupational Safety and Health Review Commission (OSHRC) - an independent agency that handles appeals from actions taken by OSHA 2. Procedures and Violations a. OSHA compliance officers may inspect facilities b. Employee may report OSHA violations c. Employee cannot be fired for refusing, in good faith, to work in a high-risk area if bodily harm or death might result d. Employer must report all work-related injuries and diseases to OSHA e. If an employee is killed in a work-related accident, or 3 or more workers are hospitalised in one incident, the employer must notify OSHA within 8 hours or will be fined, and inspection of the premises is mandatory - notes sayd know proceduars for exam and pointed to "e."

Worker Health and Safety A. Occupational Safety & Health Act of 1970 B. State Worker's Compensation Laws C. Income Security

Occupational Safety & Health Act of 1970: provides for specific standards that employers must meet in attempt to ensure safe and healthful working conditions for employees

agency law f. work for hire

Ordinarily, a person who creates a copyrighted work is the owner of it—unless it is a "work for hire." Under the Copyright Act, any copyrighted work created by an employee within the scope of her or his employment at the request of the employer is a "work for hire." The employer owns the copyright to the work. - you can have contract stated otherwise when an employer hires an independent contractor—such as a freelance artist, writer, or computer programmer—the independent contractor normally owns the copyright. An exception is made if the parties agree in writing that the work is a "work for hire" and the work falls into one of nine specific categories, including audiovisual works, collective works (such as magazines), motion pictures, textbooks, tests, and translations.

Liability for Contracts A. Definition

Principals are classified as disclosed, partially disclosed, or undisclosed. 1. disclosed principal -principals identity is known by the third party at the time the contract is entered into with the agent. - agent has no contractual liability for principles non performance 2. partially disclosed principal - the principals identity is not known by the third party, BUT the third party knows that the agent is/ or may be acting for a principal at the time of the contract - agent is treated as party to the contract and can be liable for principal's non performance... if agent works with in the scope he is safe 3. undisclosed principal - the principals identity is totally unknown by the third party, and the third party has no knowledge that the agent is acting on the principal's behalf at the time of the contract - as long as agent is in scope he is good. Agent is liable but entitled to indemnification from principle

Agent's Authority E. Ratification

Principle accepts responsibility for agents unauthorised actions

Formation of the Agency Relationship: B. Agency by ratification

Principle accepts responsibility of another. when a person who is in fact not an agent (or who is an agent acting outside the scope of her or his authority) makes a contract on behalf of another (a principal). If the principal approves or affirms that contract by word or by action, an agency relationship is created by ratification. example: daughter is given card for food, and uses it for close. if the mom accepts what she did, this is ratification

Federal Labor Laws A. Norris-LaGuardia Act of 1932 B. National Labor Relations Act (NLRA) of 1935 "Wagner Act" C. Labor-Management Relations Act of 1947 (LMRA) "Taft-Heartley Act" D. Labor-Management Reporting and Disclosure Act of 1959 (LMRDA); "Landrum-Griffin Act"

The "Wagner Act" is the most comprehensive act and the other statues are viewed as amendments to the "Wagner Act" bc there were problems the law didn't address

Wages, Hours, and Layoffs Fair Labor Standards Act of 1938 (FLSA) 1. Child Labor Rules

The FLSA prohibits oppressive child labor; was used to get children back in classrooms, because ppl with education will long-term be more beneficial to society Restrictions on child labor differ by age group: a. children under 14 - certain limited jobs: deliver newspapers, work for their parents, and be employed in entertainment and (with some exceptions) agriculture. b. children ages 14 & 15 - can NOT work in hazardous occupations, but the hours/ day and per week are restricted based on the day of week and time of day: hrs/day, hrs/ week, no working school hours, hours you can work in school day/week, time of day c. children ages 16 & 17 - NO day and hours restrictions, but still can NOT be employed in hazardous conditions.

debate this The U.S. labor market is highly competitive, so state and federal laws that require overtime pay are unnecessary and should be abolished.

The U.S. labor market is highly competitive, so state and federal laws that require overtime pay are unnecessary and should be abolished. In a competitive market, arrangements for overtime pay would be dictated by the forces of supply and demand for labor. There is no need for the government to step in to regulate this market. Most employees have little bargaining power in the labor market. Consequently, without government regulations with respect to overtime pay, employers would exploit the weakest employees, the ones that cannot seek alternative employment.

debate respondeat superior

The doctrine of respondeat superior should be modified to make agents solely liable for their tortious (wrongful) acts committed within the scope of employment. Because of the doctrine of respondeat superior, some agents may act more recklessly because they know that the principal will pay all damages for their irresponsible behavior. If all agents knew that they would be financially liable for at least some of the damages their tortious conduct caused, they would behave in a more responsible manner. Business owners and other principals take out sufficient insurance to cover damages owed due to their agents' tortious acts. It would be unfair to impose any liability on agents, who, in general, are not in a financial position to pay for any part of a damage award as a result of their tortious acts.

Agent's Authority - how much authority does a agent have and when they have over steped it

The liability of a principal to third parties with whom an agent contracts depends on whether the agent had the authority to enter into legally binding contracts on the principal's behalf. An agent's authority can be either: A. Expressed Authority B. Implied Authority C. Apparent Authority If an agent contracts outside the scope of his or her authority, the principal may still become liable by ratifying the contract. D. Emergency Powers E. Ratification

T/F Both parties to an agency have the right to terminate the agency at any time.

The parties to an agency may always have the POWER to terminate the agency at any time, but they may not always have the RIGHT. If a party who terminates an agency does not have the right to do so. he or she may be liable for breach of contract.

Employment Discrimination 1. Title VII of the Civil Rights Act of 1964 - B. Untentional Discrimination

Unintentional Discrimination: Disparate Impact A. Prima Facie case: Plaintiff Proves 1. The Employer has a facially neutral employment practice or job requirement; 2. Policy is neutrally applied; and 3. Policy has a significantly adverse impact on a protected class; [ for "significantly adverse impact" memorise wording not how to prove it] #3 proven in two ways: a. pool of applicants 1. as a result of educational or other job requirements or hiring procedures, 2. the percentage of nonwhites, women, or members of other protected classes in the employer's workforce 3. does not reflect the percentage of that group in the pool of qualified applicants. - if Pi shows connection between the practice and the disparity, they made prima facie case, so need not provide evidence of discriminatory intent. or b. Rate of Hiring (protected class selection rate is less than 4/5ths or 80% of the group with the highest rate of hiring) B. Burden of Proof shifts to the employer who tries to justify the practice or requirement. (Employer defenses include: job-related reason or a business necessity; but can also be justifications like insubordination, lack of work experience, etc.) C. It is not a defense that the employer did not intend to discriminate - bc this is unintentional discrimination

what is Case 20.3 example of Dale Yurk was employed at Application Software Technology (AST) Corporation. He discovered that AST was planning to reuse and resell software that it had developed for the city of Detroit. Yurk contacted his superiors—including the company's chief executive officer—and told them that he believed the resale infringed on the city's intellectual property rights. Shortly afterward, AST terminated Yurk's employment.

Whistleblower Protection Act Yurk sued AST, alleging that the company had violated both the Whistleblower Protection Act and public policy. A federal district court held that Yurk had stated a claim under the Whistleblower Protection Act but dismissed the claim alleging that the company had violated public policy.

Davis contracts with Estee to buy a certain horse on her behalf. Estee asks Davis not to reveal her identity. Davis makes a deal with Farmland Stables, the owner of the horse, and makes a down payment. Estee does not pay the rest of the price. Farmland Stables sues Davis for breach of contract. Can Davis hold Estee liable for whatever damages he has to pay? Why or why not? (See Liability in Agency Relationships.)

Yes. A principal has a duty to indemnify (reimburse) an agent for liabilities incurred because of authorized and lawful acts and transactions, and for losses suffered because of the principal's failure to perform his or her duties.

Winona contracted with XtremeCast, a broadcast media firm, to cohost an Internet-streaming sports program. Winona and XtremeCast signed a new contract for each episode. In each contract, Winona agreed to work a certain number of days for a certain salary. During each broadcast, Winona was free to improvise her performance. She had no other obligation to work for XtremeCast. Was Winona an independent contractor? (See Agency Law.)

Yes. An independent contractor is a person who contracts with another—the principal—to do something but who is neither controlled by the other nor subject to the principal's right to control with respect to the performance. Independent contractors are not employees, because those who hire them have no control over the details of their performance.

American Manufacturing Company (AMC) issues an employee handbook that states that employees will be discharged only for good cause. One day, Greg, an AMC supervisor, says to Larry, "I don't like your looks. You're fired." Can AMC be held liable for breach of contract? If so, why? If not, why? (See Employment at Will.)

Yes. Some courts have held that an implied employment contract exists between employer and employee under an employee handbook that states employees will be dismissed only for good cause. An employer who fires a worker contrary to this promise can be held liable for breach of contract.

f. limited liability partnership (LLP) - method of creation - legal position - liability - management - taxation

a form of partnership that allows professionals to enjoy the tax benefits of a partnership while limiting their personal liability for the malpractice of other parties. - method of creation: created by an agreement of the partners. A statement of qualification [qualify you are in professional occupation together] for the limited liability partnership is filed - legal position: generally, treated same as a general partnership. - liability: varies [from state to state], but under the uniform partnership act, liability if a partner for acts committed by other partners is completely limited; beyond just the malpractice of the partners, basically any partnership liability we arent personally liable for in most states - is this way in TEXAS. - management: same as a general partnership - taxation: same as a general partnership EXAMPLE: Texas in 1991 became the first state to enact an LLP statute. They are designed mostly for professionals who normally do business as partners in a partnership but need/wish to limit liability. Doctors and attorneys use LLP a lot, as do accounting firms, including Ernst and Young, LLP and PricewaterhouseCoopers, LLP. limit liability for exposure to malpractice is the way they were originally desighned.

e. limited liability company (LLC) - method of creation - legal position - liability - management - taxation

a hybrid form of business enterprise that offers the limited liability of the corporation but the tax advantage of a partnership majority of small businesses who choose this are wise, it's very flexible and popular you get positive of corporation and partnership - method of creation: created by and agreement of the member- owners of the company. Articles of the organization are filed in the state where you want to do business. charter must be issued by the state - legal position: treated as a legal entity - liability: [owners are called members] member-owners' liability is limited to the amount of capital contributions or investments - Duration: unless a single-member LLC, can have perpetual existence (same as corporation). - management: member- owners can fully participate in management or can designate a group of people to manage on behalf of members. you want operating agreement to understand how your operating busn, how to pass on membership interest, how to do mgmt - taxation: LLC is not taxed, and members are taxed personally profits "passed through" the LLC - proportion of their share of profits. from perspective of IRS, the entity does not exist and the income pass through the entity. EXAMPLE: - 2 financial planers want to start a company for wealth mgmt. they will be equal partners and contribute equal capital. because of the huge liability risk, but desire for personal taxation rates, an LLC is the way to go. - They want to bring in other members in the future and grow the company; however, they asked if there was a way if they could be owners of a building if they bought one. Prof says not if Wealth MGMT LLC buys the bld. They said they might eventually get out of wealth mgmt LLC, but still to rent out the building bought. this means they might want to be in real estate business as well. - RESULT: they set up another LLC to purchase the building and wealth management LLC pays rent to the BLD LLC. - this allows them to get out of one busn and not the other, and limits liability associated with the wealth mgmt company to be seperate from the building. * you CAN NOT just set up a LLC for each large asset for the LLC - that is unethical; these guys were able to do it bc the purpose of the LLC: they wanted real estate business as well LLC and S-corp have similar advantages, but LLC gives more flexibility in terms of who can be members

c. [general classic corp that you can take public with stock] corporation - method of creation - legal position - liability - management - taxation

a legal entity formed in compliance with statutory requirements. the entity is distinct from its shareholders - owners - method of creation: authorised by the state under the state's corporation law. - legal position: always a legal entity separate and distinct from owners- a legal fiction for the purpose of owning property and being a party to litigation. legal fiction means it is recognised as a legal entity and it does own property and can be sued even though it is not a person - liability: [big positive of corp] limited liability of shareholders - shareholders [owners of corp] are not liable for the debts of the corporation. - duration: can have perpetual existence unless corp is created around one person [ends with one shareholders death] - management: shareholders elect directors, who set policy and appoint officers. shareholders are owners and can hold all the roles as a owner - shareholder, director, officer - taxation: [big negative of corp] double taxation- corporation pays income tax on net profits, with no deduction for dividends, and shareholders pay income tax on distributed dividends they receive. EXAMPLE: family owned bank wants to open up ownership to employees though a profit sharing plan (benefit plan) and eventually sell shares of stock publicly would want to be a corporation Fortune 500 companies are all corporations. anyone can start corporation - even one person can be corporation.

d. limited partnership - method of creation - legal position - liability - management - taxation

a partnership consisting of one or more general partners and one or more limited partners general partners: manage the business and are liable to the full extent of their personal assets for debts of the partnership limited partners: contribute only assets and are liable only to the extent of their contributions. they put up assets to fund the venture and they could lose assets if the venture is not segsesfull, but their assets can't be seized if there are not enough partner assets to satisfy lawsuit - method of creation: created by an agreement to carry on a business for profit. at least one party must be a general partner and the other(s) limited partner(s). Certification of limited partnership is filed. it is pretty specific. you have to file in the state in which you want to create the limited partnership. you have to receive a certificate of limited partnership from the state office - you find the form on the secretary of state website - legal position: treated as a legal entity - liability: unlimited liability of all general partners. limited partners are only liable for the extent of capital contributions - management: general partners have an equal voice by agreement. limited partners can not retain limited liability if they actively participate in management - they have to stay out of management. - taxation: they are taxed as a partnership - pro rata share EXAMPLE: Real Estate Deal - you'd unestablished entrepreneur, Joe bob, has an idea to develop 500 acres into a subdivision. he has no money so seeks wealthy individuals to invest in his venture. he will set up a limited partnership. he is the general partner with all the liability and responsibility of management decisions. his wealthy investors are limited partners who are only liable for the extent of their investment. Also possible, some LP set up a S-Corperation or an LLC as the general partner. [basically putting an entity around the general partner that does have limited liability status] and then the individuals who actually own the company are the limited partners. It is also possible to set up a family-limited partnership [she says its a state-claiming tool that we don't need to talk abt but she wants us to be aware about]. the general partner is viewed as an entity and so the entity is making mgmt decisions. ppl running entity are making the decisions setting up entity as a general partner helps accomplish a limited liability for everyone involved in the limited partnership

Formation of the Agency Relationship: D. Agency by operation of law

an agency is needed due to an emergency - car accident and person is in coma, so parent makes decisions BOOK: The courts may find an agency relationship in the absence of a formal agreement in other situations as well. This may occur in family relationships, such as when one spouse purchases certain basic necessaries and charges them to the other spouse's account. The courts often rule that a spouse is liable for payment for the necessaries because of either a social policy or a legal duty to supply necessaries to family members. Agency by operation of law may also occur in emergency situations. If an agent cannot contact the principal and failure to act would cause the principal substantial loss, the agent may take steps beyond the scope of her or his authority. For instance, a railroad engineer may contract on behalf of his or her employer for medical care for an injured motorist hit by the train

b. [general] partnership - method of creation - legal position - liability - management - taxation

an agreement by two or more parties to carry on as co-owners, a business for profit; the agreement does not have to be written, can be oral. - method of creation: created by agreement of the parties - legal position: a general partnership is a separate legal entity in most states. for purposes of if the partnership opens up a bank account or buys land, all are in the name of the partnership. - liability: unlimited; personal assets are subjected to be liquidated in a court order to satisfy the debts of the partnership. If after all the partnership assets are liquidated, and that is not enough to satisfy the debt, then we look to individual partners. in most states, we are jointly and severally liable. - management: each partner has a direct equal voice in management unless expressly agreed otherwise in the partnership agreement. - taxation: each partner pays a pro rata share of income taxes on net profits, whether or not they are distributed... . they are recognized as a separate legal entities, however, they are taxed as if they are not a entity. so the entity itself does not pay taxes. . Pro rata share = [you pay taxes] in proportion to my ownership interest. . . the uniform partnership act that is followed in most states says that each partner has an equal interest in a partnership, regardless of capital put up, unless stated otherwise (4 partners all have 1/4 interest and income taxes on profit). . . when the interest is reinvested in the business: the partners have to pay taxes whether they pocket the money or not [by putting it back into the busn] the IRS gets their taxes. and how much taxes depends on the individual tax bracket of the partner. . you can have an agreement to say otherwise to owning equal shares ... but if you put that agreement together and don't have proof of it it is hard to prove it. EX of what frequently happens: one partner puts up 50% of the capital and three other partners put up the other percent of the capital. The uniform partnership act says that you all have an equal percentage of profits unless there is an agreement saying you have 50%. If you have an agreement that opposes the uniform partnership act and you have 50% of the profits, due to pro rata share you pay 50% of taxes. EXAMPLE: 2 guys named dave attending UT in the 80s had a pizza restaurant idea and their signature food is hand-tossed pepperoni pizza rolls. this is double daves. they can take out liability insurance for the risk and are in agreement to share profits and losses equally. they pay income tax based on their pro rata share of the profits.

Wages, Hours, and Layoffs Fair Labor Standards Act of 1938 (FLSA) - one of Franklin D. Roosevelts acts 4. Overtime

any employee who agrees to work more than forty hours per week must be paid no less than one an a half times her or his regular pay for all hours worked over forty EXEMPTED Employees: 1. Executives 2. Administrative 3. Professionals - professional degree like doctors, lawyers, CPA 4. Outside salesperson 5. those creating computer code 6. and those making more than $50,440 a year, as of 2016 - salary threshold where employers are not required to pay overtime control hours of work week and workers will be rested and more productive

Caterpillar, Inc. v. Sudlow

court of appeals of indiana - Background and Facts: - The firearms policy at a Caterpillar, Inc., facility in Indiana allowed employees who were legally permitted to possess firearms to store the weapons in their vehicles "in line with state law." - The state firearms statute required firearms stored in vehicles to be locked in a trunk, kept in the glove compartment, or otherwise placed out of sight. - William Sudlow, an employee at Caterpillar, drove to work one day with a loaded Ruger .357 Magnum handgun—for which he had a permit—stuffed between the center console and the driver's seat. Sudlow left the gun there when he parked and entered the building to begin his workday. - other Caterpillar employee saw handgun in Sudlow's vehicle, and reported it to the head of security. - Two days later, Sudlow was fired for violating the company's firearms policy. The same day, Caterpillar posted a new firearms policy that explicitly stated that firearms in employees' vehicles must be kept "secured and out of sight." - Sudlow filed a complaint in an Indiana state court against Caterpillar, alleging wrongful discharge. - The trial court found in Sudlow's favor, and a jury awarded him $85,000 in damages. - Caterpillar appealed, arguing that the public-policy exception did not apply to Sudlow's firing. In the Language of the Court BAKER, Judge. * * * * Here, Caterpillar's Firearms Policy did not prohibit conduct that is protected by the [Indiana's] Firearms Statute. * * * Indeed, * * * Caterpillar could have enacted a more restrictive policy * * * but it chose not to do so. It is readily apparent that neither the Firearms Policy nor Caterpillar's interpretation thereof violated the Firearms Statute. As a cause of action under the Firearms Statute is authorized only when an employer violates the statute, Sudlow has no right to recover on this basis. [Emphasis added.] * * * * - If Sudlow does not have a cause of action under the Firearms Statute, his only recourse would be something akin to a wrongful termination claim. - he was an at-will employee, meaning that his employment could have been terminated by either party at will, with or without a reason. - There are three exceptions to the employment-at-will doctrine, but the parties discuss only the public policy exception: we have recognized a public policy exception to the employment-at-will doctrine if a clear statutory expression of a right or duty is contravened [violated]. - The Firearms Statute is the best expression of Indiana's public policy regarding the right to transport and store firearms at work. - this statute does not confer a right to store a weapon in a vehicle in plain sight. therefore, no contravention of a clear statutory expression of a right. As a result, the public policy exception to the employment-at-will doctrine does not apply [to Sudlow's claim of wrongful discharge], and Sudlow is not entitled to relief under the common law. [Emphasis added.] Decision and Remedy The state appellate court found in favor of Caterpillar and reversed and remanded the case to the trial court. Caterpillar had not violated a "clear statutory expression of a right," because Indiana's firearms statute did not grant a right to store a gun in a vehicle in plain sight.

Wages, Hours, and Layoffs Fair Labor Standards Act of 1938 (FLSA) - one of FDR acts 3. Tipped Workers

direct wages of $2.13 an hour plus tips must equil federal minimum wage

agency law employee vs. independent contractor relationship

employee vs. independent contractor when making decision the main thing courts look at is the level of independence of the employee vs. the level of control of the employer - employee acts for and is under control of employer - independent contractor is doing work for the employer but the details of the performance of the work is not controlled by the employer distinction is important for liability purposes - when agent is employee, the employer has a greater responsibility for torts committed by the employee Employment laws (state and federal): Statutes governing Social Security, withholding taxes, workers' compensation, unemployment compensation, workplace safety, and employment discrimination apply only if an employer-employee relationship exists. book: The relationship between a principal and an independent contractor may or may not involve an agency relationship. To illustrate: A homeowner who hires a real estate broker to sell her house has contracted with an independent contractor (the broker). The homeowner has also established an agency relationship with the broker for the specific purpose of selling the property. Another example is an insurance agent, who is both an independent contractor and an agent of the insurance company for which he sells policies. (Note that an insurance broker, in contrast, normally is an agent of the person obtaining insurance and not of the insurance company.)

agency law e. IRS Criteria

employees: employer pulls money out of the paystub for taxes. independent contractor: pay all yourself - incentive to misclassify workers book: The Internal Revenue Service (IRS) has established its own criteria for determining whether a worker is an independent contractor or an employee. The most important factor is the degree of control the business exercises over the worker. The IRS tends to closely scrutinize a firm's classification of its workers because, as mentioned, employers can avoid certain tax liabilities by hiring independent contractors instead of employees. Even when a firm has classified a worker as an independent contractor, the IRS may decide that the worker is actually an employee. If the IRS decides that an employee is misclassified, the employer will be responsible for paying any applicable Social Security, withholding, and unemployment taxes due for that employee.

Liability for Torts (negligence and intentional) A. employer's own negligence in hireing/ retention of employees

employer's own negligence (see principals tortious conduct) negligence hiring/ retention of employees - direct liability - generally employer is liable for torts by employees in workplace Principal's Tortious Conduct A principal who acts through an agent may be liable for harm resulting from the principal's own negligence or recklessness. Thus, a principal may be liable if he or she gives improper instructions, authorizes the use of improper materials or tools, or establishes improper rules that result in the agent's committing a tort. Similarly, a principal who authorizes an agent to commit a tort may be liable to persons or property injured thereby, because the act is considered to be the principal's. 1. duty: em'er owes duty care in hiring 2. breach: duty is breached 3. causation: it was a foreseeable cause of breach 4. damages: to the third party Harrison v. Tallahassee Furniture Co.: owner needs driver, and hires of word of mouth and does no background stuff. driver assults harrison and she sews company for negligence of hiring a guy with record (this is civil side) furniture co is civil liable not criminal

20-2. Wrongful Discharge. Denton and Carlo were employed at an appliance plant. Their job required them to perform occasional maintenance work while standing on a wire mesh twenty feet above the plant floor. Other employees had fallen through the mesh, and one of them had been killed by the fall. When their supervisor told them to perform tasks that would likely involve walking on the mesh, Denton and Carlo refused because they feared they might suffer bodily injury or death. Because they refused to do the requested work, the two employees were fired from their jobs. Was their discharge wrongful? If so, under what federal employment law? To what federal agency or department should they turn for assistance? (See Employment at Will.)

he Occupational Health and Safety Act (OSHA) requires employers to provide safe working conditions for employees. The act prohibits employers from discharging or discriminating against any employee who refuses to work when the employee believes in good faith that he or she will risk death or great bodily harm by undertaking the employment activity. Denton and Carlo had sufficient reason to believe that the maintenance job required of them by their employer involved great risk, and therefore, under OSHA, their discharge was wrongful. Denton and Carlo can turn to the Occupational Safety and Health Administration, which is part of the Department of Labor, for assistance.

Studebaker v. Netties Flower Shop

helps with identifying a employee vs. independent contractor Worker - Mr. Ferry drives flowers and gets in car wreck with lady lady tries to sue company, so we see if he was in course and scope he does not have a car, gets payed wather he works or not, and doesn't have a uniform... but there is controls for former factors so we have a workplace he went on personal errin at pawn shop then he went to the next shop and got in a wreck (this is detore) happened on back end of a short frolic, so hes a employee in the scope of his practice so flower shop is liable.

Liability for Contracts C. Unauthorised acts

principle is not liable the agent is... someone steps out of scope of employment then agen is held liable unless they ratify

A. Application of Employment At will Doctrine

the employment relationship may be terminated by either party at at any time and for any reason, subjected to certain exceptions

a. sole proprietorship - method of creation - legal position - liability - management - taxation

the simplest form of business where the owner is the business. the owner reports income on his/her personal income tax return and is legally responsible for all debts and obligations incurred by the business - method of creation: created at will by the owner - legal position: not a separate entity; the owner is the business - liability: unlimited - management: completely at the owners' discretion - taxation: owner pays personal taxes on the business; there is no entity to tax so basically all is viewed as personal income EXAMPLE: friend sells jewelry. has her own website and takes orders on the internet. she pays taxes on income at the personal income tax rate. she has a show once a year and participates in other home shows. she only wants to work part-time.

Agent's Authority D. Emergency Powers

unforeseen emergency demands action by an agent to protect or preserve the property and/or rights of the principal; agent has emergency power.

Employment at Will Definition

when a person provided service to another for compensation without the duration of the relationship specified At Will: - can fire workers for anything eg: bad shirt, imompatance, worker has been wrecklase, etc. - can be fired or quit with or without cause; em'ee can be fired for a good reason or no reason at all