Chapter 10: Employment Law Flashcards
Settling the employee v. independant contractor issue
Where a worker’s performance is controlled by an employer, or where the employer has the right or the ability to control that work, the worker is likely considered an employee.
Independant Contractor
One who undertakes to perform the act requested on his own and is not subject to the control of an employer
Employee
A person who is hired for a wage, salary, fee or payment to perform work for an employer.
Equal Employment Opportunity Commission
Retains authority to file lawsuits to secure damages for employees despite arbitration agreements that might prevent the employee herself from suing.
Mary v. L.A
The city of L.A. was held liable for the rape of Mary M by a police officer as all other actions leading up to the rap were within the scope of employment. The question was not whether the rape was authorized, but whether it happened in the course of a series of acts that were authorized. The City was held vicariously liable for the sexual assault committed by a police officer.
Qualified Priviledge
Defense in employment related defamation suits. The one communicating the statement and the recipient share a legitimate, business-related interest in the information conveyed so references and evaluations are protected in most states from defamation claims in the absence of malice or extreme recklessness.
Defamation requires…
- False statement 2. Statement published to a third party 3. Employer responsible for publication 4. The plaintiff’s reputation must be harmed
Truth
A complete defense in defamation cases
5th Club Inc. V. Ramirez
An independent contractor who was a security guard at a night club grabbed a drunk person, Ramirez, who was attempting to enter the club. The guard knocked Ramirez unconscious and fractured his skull. Ramirez claims 5th club is vicariously liable for the guards conduct because they controlled the guards activities. Generally, the employer has no duty to ensure the independent contractor performs work in a safe manner, but any employer can be held vicariously liable for actions of an independent contractor if the employer retains some control over the manner in which the contractor performs the work that causes the damage. The courts found no evidence that 5th club gave more than general directions to the guard or retained the right to control the manner in which the security guard performed his job.
Vicarious Liability
Imputed liability/negligence, Since a special relationship exits between the parties, one person can be held liable for the negligence of another. Employers will be held liable under vicarious liability for harm to third parties caused by the intentional or negligent acts of their employees when those acts occur within the scope of employment.
Employers and Workers Comp
Employers are generally liable, under workers comp statutes, for injuries to employees regardless of the cause of those injuries if they occurred within the scope of employment (on the job).
How to determine if vicarious liability exists
- Was the employee subject to employer’s supervision? 2. Was the employee motivated to serve employer’s business interests? 3. Did problem arise within normal working hours and location? 4. Was the act in question the general kind the employee had been hired to perform?
Hiring and Retention of Employee
Employer is often liable for hiring or retaining an employee he/she knew or should have known to be dangerous, incompetent, dishonest, etc. and that information was directly related to injury suffered by plaintiff.
Yunker v. Honeywell Inc.
Honeywell employee Landin strangled a co-worker to death and went to jail. Then he was rehired by Honeywell after being released and threatened to kill another co-worker at work. Days later he shot her in her driveway. The court affirmed summary judgment on negligent hiring and supervision in favor of Honeywell, but reversed the summary judgment on the issue of negligent retention. The difference between negligent hiring and negligent retention focuses on when the employer was on notice that an employee posed a threat and failed to take steps to ensure the safety of third parties.
Workers Comp
All states provide some form of workers comp not requiring a lawsuit, just apply for compensation based on illness, injury, or death. The system is governed by a state board or commissions.
