USF BUL3320 Exam 3 Study

Fair Labor Standards Act

(FLSA)

Wrongful dishonor

When a payer bank does not a honor a check and there are sufficient funds, it is held liable for all damages proximately caused by the wrongful dishonor, as well as all consequential damages

Agent exceeding the scope of authority

When an agent enters into a contract on behalf of a principal, there is an implied warranty of authority. If the agent exceeds the scope of their authority, the principal will not be bound unless it is ratified. Instead, the agent remains liable

Employer lockout

When an employer reasonably anticipates a strike, he may prevent those employees from entering the premises

Undisclosed agency

When the third party is unaware of both the existence of the agency or of the principal. Both the principal and the agent are liable on the contract

Exclusive remedy

Worker's comp is an exclusive remedy and the employee may not sue the employer for damages unless the employer intentionally causes the injuries

Overtime pay

Workers cannot be required to work more than 40 hours in a week unless they are paid time and a half

To form a sole proprietorship, ________ is required.

a local business license

Occupational safety and health act (OSHA)

established in 1970

The voluntary association of two or more persons for carrying on a business as co-owners, for profit, is called a ________.

general partnership

Which form of business organization has been recognized since ancient times?

general partnership

Although union employees have the right to strike in a labor conflict, the employer has the right to ________ leading to a potential lose-lose resolution as the striking laborers ________ and the employer has a less experienced workforce.

hire temporary labor; do not get paid

In collective bargaining, discrimination is categorized as an..

illegal subject

The amount of money that a worker's compensation claimant can recover is ________.

preset as established by statute or regulations

Disparate-treatment

the situation in which an employer treats a specific individual less favorable based on their race, color, national origin, sex, or religion.

Which of the following statements is NOT true about entrepreneurs?

their endeavors start out as a sole proprietorship

A sole proprietor has ________ liability.

unlimited personal

Usurping an opportunity

A third party offer to an agent must be conveyed to the principal. Agent cannot appropriate the opportunity for themselves unless the principal rejects it after due consideration

Transfer of a nonnegotiable contract by assignment

A transferor/assignor transers/assigns their rights to a transferee/assignee, who acquires the same rights that the assignor possessed. If the transfer of a negotiable item fails to qualify as a negotiation, it becomes an assignment, and the transferee becomes an assignee instead of a holder

Mental incompetence

Adjudication of incompetence is required

Agent's duty of loyalty

Agent owes the principal a duty of loyalty and fiduciary duty

Self dealing

Agents are generally prohibited from undisclosed self-dealing with the principal

Competing with the principal

Agents are prohibited from competing with the principal during the course of an agency unless the principal agrees

Agent's signature

Agents may be empowered to sign as a representative of a principal, binding the principle under general agency law

Frolic and detour

Agents sometimes do things during the course of their employment that furthers their personal interests, such as running personal errands. This is referred to as frolic and detour. Negligence actions stemming from this are examined on a case by case basis.

Deferred posting

Allows banks to establish a cutoff time so that any checks received after that hour are treated as having been received on the next banking day

Formation of an agency

An agency can arise as an express agency, an implied agency, an apparent agency, and an agency by ratification

Who can initiate an agency relationship?

Any person who has contractual capacity. Court may appoint a legal guardian to handle affair for anyone that lack capacity. Agency contracts can only be created for lawful purposes

Independent contractor

Are not employees, they are hired to perform certain tasks on their behalf

Negotiating bearer paper

Bearer papers have no specific payee or indorsees named and are negotiated by delivery

Tort liability of principals and agents to third parties

Both principal and agent are liable for their own tortious conduct.

Functions of a negotiable instruments

Certain forms of negotiable instruments serve as a substitute for cash, such as checks as an extensions of credit and as record-keepings devices

Special types of checks

Certified checks and cashier's checks

Final settlement

Checks are considered paid when the payor bank pays the check in cash, settles for the check without the right to revoke it, or fails to dishonor it within certain statutory time periods

"On Us" Checks

Checks in which the depository and payor bank are the same, and must be paid by the next banking day

Employment related injury

Claimants must prove that their injuries arose from their work in order to get recovery

Title VII of the Civil Rights Act of 1964

Congress enacted several major federal statutes that outlawed employment discrimination against members of certain classes

Special endorsement

Contain both the signature of the endorser and the name of the endorsee

Blank endorsement

Contain only a signature of the endorser, do not specify a particular endorsee, and are considered bearer paper

Certificate of deposit

Created by a depositor (payee) depositing money with a financial institution (maker) in exchange for a promise to pay back the deposited sum plus interest at a set time

Series of forgeries

Customers must report forgeries or alterations within a reasonable time, not exceeding 30 days from the date of their bank statement, or the bank will be discharged from liability on all similarly forged or alter checks

Provisional credits

Depository banks are not required to pay the customer until the check actually clears, but may elect to issue provisional credit until it settles. If check returns, the credit is reversed

Order to pay

Drafts and checks contain the drawer's unconditional order for the drawee to pay a payee

Secondary liability for negotiable instruments

Drawers of checks and draft and unqualified endorsers of negotiable instruments have secondary ability, similar to guarantors on a contract

A right to sue letter is issued by the EEOC if the ________.

EEOC finds a violation and decides not to bring suit against the employer

Qualified endorsement

Each subsequent endorser is presumed to be liable if the maker defaults on a negotiable instrument. Qualified endorsements disclaim or limit liability on instruments.

Employer-employee relationship

Employer hires employee. Employee is not an agent unless they are specifically empowered to enter into contracts on the principal employer's behalf

Undue Hardship

Employers are not obligated to provide accommodations that would impose an undue hardship.

Unemployment compensation

Employers are required to pay unemployment contributions to assist employees that are temporarily unemployed under FUTA and various state laws. Un employment

Qualified endorsers

Endorsers who endorse instruments without recourse have no secondary liability because they have expressly disclaimed any liability

_____ requires that both employers and employees make contributions into the Social Security fund, just as the Self-Employment Contributions Acts (SECA) requires that self-employed individuals make similar contributions

FICA

Child labor

FLSA forbids the use of oppressive child labor and allows the department of labor to establish regulations defining permissible child labor

Agency

Fiduciary relationships formed by mutual agreement between the principal and an agent. The principal employs the agent to act on his or her behalf

Fraud in the inception

Fraud in the fact or the execution are universal defenses

Power of attorney

Gives an agent the power to sign legal documents. General gives broad powers, Special power of attorney limits the powers of the agency

NLRA

Gives employees the right to join together as an appropriate bargaining unit and form a union

Certified checks

Guaranteed by the bank with funds set aside from the customer's account

Family and Medical Leave Act

Guarantees workers unpaid time off from work for family and medical emergencies and other specified situations. Applies to companies with 50 or more workers

Types of Union Elections

If 30 percent of the employees comprising a bargain unit are interested in joining a union, the union can petition the NLRB to set an election date

Incomplete check

If a check is left uncompleted, the payee or holder may complete the check. If a payor bank makes a good faith payment the completed check, the drawer will be liable

One year rule

If alteration of a check is not reported within one year of receipt of the bank statement, the bank is relieved of any responsibility

Reasonable Accommodation

If an employer makes a reasonable accommodation to accommodate an individual's disability, there is no violation of the ADA.

Material alteration

If an instrument has been fraudulently and materially altered, it cannot be enforced.

Employee Retirement Income Security Act (ERISA)

If employers offer pension plans, ERISA establishes the record-keeping, disclosure, and other requirements that will apply to them. It also establishes how and when an employee will become vested in the plan

Multiple payees or endorses

If the word "and" is used, both person's names will be required to negotiate the instrument; however, if either the word "or" or a slash mark is used, either party may endorse and negotiate the instrument

Principal's duties to reimburse

In carrying out an agency, an agent may spend his or her own money on the principal's behalf. The principal owners a duty to reimburse the agent for all such expenses if they were authorized by the principle, with the scope of the agency, and necessary to discharge the agents duties in carrying out the agency

Postdated Checks

In order for the terms of a postdated check to be honored by a bank, the drawer must postdate the check and must give separate written notice to the bank, including a full description of the check. If these steps are taken and the bank pay the check early, it will be held liable for any losses suffered by the drawer

Minority

Infancy, provided there has been no misrepresentation, allows for disaffirmance

Illegality

Instruments arising from illegal transactions will declare the instrument void

Cashier's checks

Issued to specific payees, and are considers non-cancelable negotiable instruments

Criteria That Justifies a Differential In Wages

It is allowed in payment systems based on seniority, merit, quantity or quality of product, and shift differentials.

No strike clause

It is illegal to strike if the union contract includes a negotiated no-strike clause

Affirmative Action Plan

It provides that certain job preferences will be given to members of minority racial and ethnic groups, females, and other protected-class applicants when making employment decisions.

Point-of-sale terminal

Machines at retail business for debit cards

Signature defined

May be any name, word, or mark, including handwritten, typed, stamped or printed symbols that used to authenticate writings.

Deposit of cash

Money deposited into an account becomes available on the next banking day

Restrictive endorsement

Most endorsements are nonrestrictive and have no instructions or conditions attached. Restrictive endorsements have some form of instructions attached, like endorsements for deposit or collection, trust endorsements and agency endorsements

Creating a negotiable instrument

Negotiable instrument must be in writing and be signed by the maker or drawer, offering an unconditional promise to pay a stated amount at a set time or upon demand to the bearer

Transfer of a negotiable instrument

Negotiation occurs when a negotiable instrument is transferred by someone other than the issuer

Can negotiable instruments be tied to any undertakings in addition to the payment of money?

No, Negotiable instruments cannot be tied to any undertakings in addition to the payment of the money

The ________ Act states that it is legal for employees to organize.

Norris - LaGuardia

Promise to pay

Notes must include the maker's unconditional promise to pay

Promissory note

Notes that are unconditional written promises by a party (the maker), to pay money to another (the payee).

General duty standards

OSHA also requires general duty standards, such as providing a work environment free from hazards

Specific duty standards

OSHA standards address both specific duties, like establishing safety requirements for equipment

Agency by ratification

Occurs when a person misrepresents themselves as another's agent when in fact they are not and the purport principle ratifies (accepts) the unauthorized act. In such cases, the principle is bound to perform and the agent is relieved of any liability for misrepresentation

Dual agency

Occurs when an agent acts for two or more different principals in the same transaction. Generally prohibited unless all the parties involved in the transaction agree to it

Partially disclosed agency

Occurs when the agent discloses their agency status but not the identity of the principal to the third party.

Negotiating order paper

Order paper is payable to a specific payee or endorsed to a specific indorsee

Stop-payment order

Orders by the drawer of a check to the payor bank not a pay a particular item be be oral or in writing. Failure to honor the stop-payment order will make the bak liable for actual damages suffered by the drawer

Altered checks

Payor banks can dishonor altered checks. They can charge the drawer's account for the original tenor (amount) under the doctrine and presentment warranty

Primary liability for negotiable instruments

Primary liability lies with the makers of promissory notes and Certificates of deposits. There is no primary liability with drafts or checks because they are merely orders to pay.

Principal-agent relationship

Principal hires agent

Principals duty to compensate

Principal owes a duty to compensate the agent for performance of services, either the amount stated in the contract or, if there was no agreement, whatever the customary fee paid in the industry is due

Principals duty to indemnify

Principal owes a duty to indemnify the agent for any losses the agent suffers because of the principal's conduct. Usually arises when an agent is held liable for the principal's misconduct

The coming and going rule

Principals are generally not held liable for injuries caused by agents or employees on their way to and from work, even if the principal supplies the transportation

Disparate treatment discrimination

Prohibits disparate treatment and disparate action discrimination

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Provides that a terminated employee or his beneficiaries must be offered the opportunity to continue his group health insurance at the group rate plus administration fees

National origin discrimination

Refers to the country of a person's ancestors

Fund transfer procedures

Security procedures are used to protect the banking institutions during fund transfers

____ comprised the membership of the American Federation of Labor at the time it was developed.

Skilled craft workers

Failure to examine bank statements in a timely manner

Statements must be sent regularly to the customer indicting sufficient information for them to able to identify paid checks. Further, the customer owes a duty to examine the statements and promptly notify the bank of any discrepancies

Requirements for 'holder in due course' (HDC) status

Taking for value requirement, taking in good faith requirement, taking without notice of defect requirement, cannot be overdue instruments, dishonored instruments, there cannot be evidence of forgery, alteration or irregularity. Payees are not usually considered HDCs.

Which of the following statements accurately captures the taxation of sole proprietorship?

Taxes are reported on the sole proprietor's personal income taxes.

Uncovered Conditions

Temporary or nonchronic impairments of short duration with little or no residual effects usually are not considered disabilities.

Undocumented Workers

The Immigration Reform and Control Act requires employers to verify whether prospective employees are either US citizens or otherwise authorized to work in the country (have proper work visas)

Misuse of confidential information

The agent often acquires confidential information about the principal's affairs. The agent is under a legal duty not to disclose or misuse confidential information either during or after the course of the agency

Reverse Discrimination

The courts have held that if an affirmative action plan is based on pre- established numbers or percentage quotas for hiring or promoting minority applicants, then it causes illegal reverse discrimination.

Parties to a check

The drawer is the person who maintains the checking account at the drawee, or payor bank. The payee is the party to whom the check is written

EEOC

The federal administrative agency responsible for enforcing most of the federal anti discrimination laws

Express agency

The most common form of an agency, where the agent contracts with the principal to act on the principal's behalf. Contract may be oral or written but is bound by the statute of frauds

Endorsement of a check

The payee may either demand payment of a check or endorse the check to another party, who becomes the endorsee

Misspelled or wrong name

The payee or the payer may choose to have the endorsement on the instrument made in the misspelled name, the correct name or both.

Liability for an independent contractor's torts

The principal is not liable for the torts of their independent contractors, since they do not control the means by which the results are accomplished

Principal's duty to cooperate

The principal owes a duty to cooperate with and assist the agent in the performance of the agent's duties and the accomplishment of the agency

Strikes

The union may call a strike if a collective bargaining agreement cannot be reached

H-1B Foreign Guest Worker Visa

These visas allow foreign nationals that skilled in specialty occupations to work in the US

Lilly Ledbetter Fair Play Act of 2009

This act provides that each discriminatory pay decision restarts the statutory 180-day clock. It also provides that a count can award back pay for up to two years preceding the filing of the claim if similar violations occurred during the prior two-year time period

National Labor Relations Board (NLRB)

This administrative body oversees union elections and prevents both unions and employers from engaging in unfair labor practices

EB-1 Extraordinary Ability Visa

This allows US employers to employ in the US foreign nationals who possess extraordinary ability for certain types of employment

Illegal strikes

This includes violent strikes, sit down strikes that occupy employer's premises, intermittent strikes, wildcat strikes

Fraud in the inducement

This is a personal defense that is not effective against HDCs, but is against ordinary holders

Trade acceptance

This is a sight draft arising when credit is extended with the sale of goods

Discharge in bankruptcy

This is a universal defense

Fully disclosed agency

This is the result of the third party knows that the agent is acting as such for an identified principal. The contract is between the principal and the third party. Agent has no liability under the contract unless they have guaranteed the performance of the principal

Secondary boycott picketing

This picketing is only legal if it is against the struck employer's product, and not against a neutral employer

Fixed amount of money

This requirement ensures the value of the instrument, as well as any interest being charged

Extreme duress

This requires some form of force or violence; ordinary duress is not enough

Social security

This system provides limited retirement and death benefits to certain employees and their beneficiaries

Variable interest rate loan

This type of loan ties interest rates to a set measure such as a prime rate. They may be considered negotiable instruments

The Fair Employment Practices Act

This was passed to eliminate job discrimination in the hiring, maintaining, and termination of employees based on the protected classes of race, color, national origin, sex and religion

Replacement workers

Those hired by management to replace striking workers

Drafts

Three-party instruments by which a drawer orders a drawee to make a payment to a payee

Check

Three-party instruments like drafts that are drawn on specific financial institutions and are payable on demand

Limits on Employer Questions

Title 1 restricts an employer from asking about the disability, but may query the applicant's ability to perform job-related functions.

Genetic Information Nondiscrimination Act (GINA)

Title II of GINA makes it illegal for an employer to discriminate against job applicants and employees based on genetic information.

A simple majority vote at the election will win the election. (T or F)

True

If employees no longer wish to be represented by the union, a decertification election will be supervised by the NLRB. (T or F)

True

If management does not contest the union, a consent vote may be held without NLRB oversight. (T or F)

True

Managers and professional employees may not join unions formed by the employees whom they supervise (T or F)

True

Once a bargaining unit is defined, the union may petition the NLRB to hold an election. (T or F)

True

Persons in a protected class are not a defense to a Title VII action, T or F?

True

Forgery

Unauthorized endorsements are inoperative unless ratified by the person authorized

Partnership law is codified in the ________.

Uniform Partnership act

Crossover workers

Union members that choose not to strike or return to work after striking for a time

Cooling - off period

Unions must give a 60-day notice of their intent to strike

Unqualified endorsers

Unqualified endorsers have secondary liability

Honoring checks

When a drawee bank receives a properly drawn check, it has a duty to honor the check and debit the drawer's account

Disparate-Impact Discrimination

when an employer discriminates against an entire protected class. To prove disparate-action, the plaintiff must show a causal link.

Stale checks

A check that has been outstanding for more than a certain period of time is consider stale, and a bank is under no obligation to pay it

Complaint process

A complainant must first file a complaint with the EEOC, if violation is found, it will decide whether to sue the employee.

Forged signature of the drawer

A forged instrument bears the drawer's forged signature and the payor bank cannot charge the customer's accounts, or, having done so, must reaccredit the account and recover from the party who presented the check

Shelter principle

A hold may qualify as a holder in due course if they acquire the instrument through a holder in due course

Holder in due course

A holder is the person in possession of a negotiable instrument, and has the same rights as an assignee of an ordinary nonnegotiable contract. The holder takes an instrument for value, in good faith, and without notice of defects, and is afforded protection against any personal defenses that might be asserted.

Requirements for imposing secondary liability

A party is held to have secondary liability if the instrument is properly presented for payment, has been dishonored, and notice to timely given to the person who is secondarily liable

Intentional tort

A principal is not liable for the intentional torts of agents and employees that are committed out the principal's scope of business

Prior to holding an election to form a union, the group wanting to unionize must define a..

bargaining unit

According to Title VII of the Civil Rights Act of 1964, if an employer treats an individual less favorably than others because of that person's religion, ________ has occurred.

disparate treatment discrimination

Type of negotiable instruments

drafts, checks, promissory notes, and certificates of deposits

The simplest form of a business organization is the ________.

sole proprietorship