Chapter Seventeen Flashcards
1
Q
Employment at will
A
A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.
2
Q
Whistleblowing
A
An employee’s disclosure is government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities
3
Q
Wrongful Discharge
A
An employer’s termination of an employee’s employment in a violation of the law.
4
Q
Minimum Wage
A
The lowest wage, either by government regulation or union contract, that an employer may pay an hourly worker.
5
Q
Workers Compensation laws
A
State statutes establishing an administrative procedure for compensating workers for injuries that arise out of-or in the course of-their employment, regardless of fault.
6
Q
Vesting
A
The creation of an absolute or unconditional right or power.
7
Q
I-9 Verification
A
A process that all employers in the United States must perform within three business days of hiring a new worker to verify the employment eligibility and identity of the worker by completing and I-9 employment eligibility verification form.
8
Q
I-551 Alien Registration Receipt
A
A document, common known as a “green card,” that shows that a foreign born individual has been lawfully admitted for permanent residency in the United States. Persons seeking employment can prove to prospective employers that they are legally in the United States by showing the receipt.
9
Q
The National Labor Relations Act of 1935 (Wagner) Union
A
- Community of Interests
- Bargaining Unit
- Shop steward
- Collective bargaining Agreement
- Industrial Union
- Craft Union
- Business Agent
10
Q
Community of Interests (union)
A
Factors employees have in common for bargaining purposes
11
Q
Bargaining Unit (Union)
A
The group of employees in workplace that have the legal right to bargain with the employer.
12
Q
Shop steward (union)
A
Union member chosen as intermediary between union members and employer.
13
Q
Collective Bargaining
A
Negotiated contract between labor management
14
Q
Industrial Union
A
Union organized across, an industry, regardless of member’s job type
15
Q
Craft Unions
A
Unions organized by the employee’s craft or trade.
16
Q
Business Agent Unions
A
The representative of a union, usually craft
17
Q
Labor Laws Began with
A
Restricting court responses to union activity
18
Q
Labor Laws
A
Unions gained power and abused it, resulting in additional labor management legislation
19
Q
Contract Limitations Express
A
“Cause” or “Just cause”
20
Q
Contract Limitations Implied
A
Contracts that the courts infer from the behavior of the parties, of that are implied from law; eg., employee handbooks/policy manuals (Example: a handbook provision that says employees can only be fired for “Just cause”.
21
Q
Statutory Income Security provision (List)
A
- Social Security
- Medicare
- Employee Retirement Income security act
- unemployment compensation
- Consolidate Omnibus budget Reconciliation Act (COBRA)
- Health insurance portability and accountability ACT (HIPPA)
22
Q
The Norris-Laguardia Act
A
The first major labor law statute enacted in the United States.
23
Q
The norris-Laguardia Act Provisions
A
- Curbed courts’ power to intervene in labor disputes
- Significant impact in curbing prosecution under the antirust laws.
24
Q
Curbed courts power to intervine in labor disputes
A
less of injunctive relief
25
Unfair Labor Practices
Strikes and Lockouts
26
Unfair Labour practices may include
- Refusal to bargain in good faith
- engaging in activities that would tend to attempt to control or influence the union
- Interfering with union's affairs
- Discriminating against employees who join or assist unions
27
The Landrum-Griffin
- Also known as the Labor Management Reporting and Disclosure Act.
- Enacted in response to congressional investigations into union corruption
- Bill of rights for union members
- procedures for holding union elections
- safeguarding funds
28
La Fleur v. La Fleur (Iowa 1990) Characters
- Frank- Son/Plantiff
- Francis- Father/Defendant
- James and Tammie- Brother and Sister
- Sioux City Newpaper, Inc./Defendant
29
La Fleur v. La Fleur Key Points James and Tamme Carrier contracts
James and Tammie signed written "Carrier contracts" with the company. Their father, Francis, signed a parental release and guarantee of those contracts.
30
La Fleur v. La Fleur key points contract between the company and James and Tammie
The contract between te company and James and Tammie stated that the newspapers carriers were "independent contractors"
31
Federal Labor-Management Relations Laws
- Norris-LaGuarida Act
- National Labor relations Act (Wagner Act)
- Labor Management Relations Act (Taft-Hartley)
- Landrum Griffin Act of 1959
- The role of the National Labor Relations Board (NLRB)
- The unionization process
- Right-to-Work Laws.
32
Harrod v. Wineman (1910)
On June 30, Harrod and Wineman entered into a written contract whereby Harrod agreed "to manage and conduct a laundry business....[for] a weekly salary of $30."
33
Harrod v. Wineman (Iowa 1910) contract details
The contract contains no stipulation as to the period of such employment...." The "60-day/$120" Clause
34
Harrod v. Wineman (discharged)
On july 15, 1908, Harrod was discharged by Wineman. Harrod filed a "wrongful discharge" claim against Wineman in Polk county.
35
Harrod v. Wineman Iowa Supreme Court
The Iowa Supreme court and common law rule of employment-at-will-- "... a contract of indefinite employment may be abandoned at will by either party..."
36
The National Labor Relations Act of 1935 (Wagner Act)
- The National Labor Relations Board
- Concerted Activity
- Good Faith Bargaining
- Duty of fair representation
37
The National Labor Relations Act of 1935 (Wagner Act) The National Labor Relations Board
- Enforces labor laws in the private sector and conducts union elections
- Community of interests- formation of bargaining unit
38
The National Labor Relations Act of 1935 (Wagner Act) Concerted Activity
- Union organizing
| - Discussion of unionization and solicitation of union support
39
The National Labor Relations Act of 1935 (Wagner Act) Good faith Bargaining
- Mandatory Subjects of Bargaining
- Permissive subjects of bargaining
- Closed Shop.
40
Good Faith Bargaining: Mandatory subjects of bargaining
Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management.
41
Good faith bargaining: Permissive subject of bargaining
Nonmandatory subjects that can be negotiated between labor and management.
42
Good faith bargaining: Closed Shop
employer hires only union. Bad-faith bargaining
43
The National Labor Relations Act of 1935 (Wagner Act) Duty of fair representation
Requires the union to represent all employees fairly and nondiscriminatorily.
44
Union Members' bill of rights
- Right to attend union meetings vote on union business, and nominate candidates for union right to bring an agency or court action against the union after exhausting union procedures
- Certain procedures must be followed before any dues or initiation fee increases
- full and fair hearing when being disciplined by union; exception- failure to pay dues.
45
Management tips
- once the union is in place, conduct all negotiations only with the union representatives
- treat the collective bargaining process as one would any business activity
- know what the law requires
- keep the lines of communication open
- try to keep the "us versus them" mentality from having a negative impact on the collective bargaining process
- play hardball without setting management up for an unfair lagbor practice change.
- If employees decide they wish to unionize, do not try to negatively influence the decision
- Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidental
- know the kings of things the employer can legal do to influence the unionization decision, and do only those things that are permissible.
46
State Worker's Compensation Laws
- Compensation for Work-related injuries/illness
| - exclusivity remedies.
47
Employee Traits vs Independent contractor
- trained by employer
- tools, office and requirements for job provided by employer
- hours worked, location of workplace, manner of work all controlled by employer
- most if not all employee's income comes from one employer
- employee must professionally perform work requested.
- Services are regularly and continuously performed
- paid by the hour, week, or month
- can be terminated by any lawful reason and employer has no liability (unless there is an employment contract or CBA that prohibits.)
48
Tests
- Common Law Control Test
- IRS 21 Factor (control) Test
- Economic Realities Test
49
Harrod v. Wineman Result
the Iowa Supreme Court noted in dismissing Harrod's claim that "this conclusion may, and doubtless does, work a hardship to the appellant Harrod, but is one against which he could have easily protected himself in framing the contract of service. Failing to do so, he is without remedy.
50
Worker Adjustment and Retraining Notification (WARN) Act
Warn act covers employers with 100 or more full-time employees
51
WARN Act requires
Requires 60-days advance written notice before a plant shutdown or mass layoff. Notice goes to affected employees, labor unions and local/state government.
52
Employee Privacy Rights
Protections under the constitution and tort law
- Electronic communications privacy act (stored communication act)
- Employee polygraph protection act
- Employee Testing
53
Employee privacy rights: employee testing
- Drug testing
- AIDs testing
- Genetic Testing (GINA)
54
Harrod v. Wineman (discharged)
On july 15, 1908, Harrod was discharged by Wineman. Harrod filed a "wrongful discharge" claim against Wineman in Polk county.
55
Harrod v. Wineman (discharged)
On july 15, 1908, Harrod was discharged by Wineman. Harrod filed a "wrongful discharge" claim against Wineman in Polk county.
56
Harrod v. Wineman Iowa Supreme Court
The Iowa Supreme court and common law rule of employment-at-will-- "... a contract of indefinite employment may be abandoned at will by either party..."
57
The National Labor Relations Act of 1935 (Wagner Act)
- The National Labor Relations Board
- Concerted Activity
- Good Faith Bargaining
- Duty of fair representation
58
Harrod v. Wineman Iowa Supreme Court
The Iowa Supreme court and common law rule of employment-at-will-- "... a contract of indefinite employment may be abandoned at will by either party..."
59
The National Labor Relations Act of 1935 (Wagner Act)
- The National Labor Relations Board
- Concerted Activity
- Good Faith Bargaining
- Duty of fair representation
60
The National Labor Relations Act of 1935 (Wagner Act) The National Labor Relations Board
- Enforces labor laws in the private sector and conducts union elections
- Community of interests- formation of bargaining unit
61
The National Labor Relations Act of 1935 (Wagner Act) The National Labor Relations Board
- Enforces labor laws in the private sector and conducts union elections
- Community of interests- formation of bargaining unit
62
The National Labor Relations Act of 1935 (Wagner Act) Concerted Activity
- Union organizing
| - Discussion of unionization and solicitation of union support
63
The National Labor Relations Act of 1935 (Wagner Act) Concerted Activity
- Union organizing
| - Discussion of unionization and solicitation of union support
64
The National Labor Relations Act of 1935 (Wagner Act) Good faith Bargaining
- Mandatory Subjects of Bargaining
- Permissive subjects of bargaining
- Closed Shop.
65
The National Labor Relations Act of 1935 (Wagner Act) Good faith Bargaining
- Mandatory Subjects of Bargaining
- Permissive subjects of bargaining
- Closed Shop.
66
Good Faith Bargaining: Mandatory subjects of bargaining
Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management.
67
Good Faith Bargaining: Mandatory subjects of bargaining
Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management.
68
Good faith bargaining: Permissive subject of bargaining
Nonmandatory subjects that can be negotiated between labor and management.
69
Good faith bargaining: Closed Shop
employer hires only union. Bad-faith bargaining
70
Good faith bargaining: Permissive subject of bargaining
Nonmandatory subjects that can be negotiated between labor and management.
71
Good faith bargaining: Closed Shop
employer hires only union. Bad-faith bargaining
72
The National Labor Relations Act of 1935 (Wagner Act) Duty of fair representation
Requires the union to represent all employees fairly and nondiscriminatorily.
73
The National Labor Relations Act of 1935 (Wagner Act) Duty of fair representation
Requires the union to represent all employees fairly and nondiscriminatorily.
74
Union Members' bill of rights
- Right to attend union meetings vote on union business, and nominate candidates for union right to bring an agency or court action against the union after exhausting union procedures
- Certain procedures must be followed before any dues or initiation fee increases
- full and fair hearing when being disciplined by union; exception- failure to pay dues.
75
Union Members' bill of rights
- Right to attend union meetings vote on union business, and nominate candidates for union right to bring an agency or court action against the union after exhausting union procedures
- Certain procedures must be followed before any dues or initiation fee increases
- full and fair hearing when being disciplined by union; exception- failure to pay dues.
76
Management tips
- once the union is in place, conduct all negotiations only with the union representatives
- treat the collective bargaining process as one would any business activity
- know what the law requires
- keep the lines of communication open
- try to keep the "us versus them" mentality from having a negative impact on the collective bargaining process
- play hardball without setting management up for an unfair lagbor practice change.
- If employees decide they wish to unionize, do not try to negatively influence the decision
- Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidental
- know the kings of things the employer can legal do to influence the unionization decision, and do only those things that are permissible.
77
Management tips
- once the union is in place, conduct all negotiations only with the union representatives
- treat the collective bargaining process as one would any business activity
- know what the law requires
- keep the lines of communication open
- try to keep the "us versus them" mentality from having a negative impact on the collective bargaining process
- play hardball without setting management up for an unfair lagbor practice change.
- If employees decide they wish to unionize, do not try to negatively influence the decision
- Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidental
- know the kings of things the employer can legal do to influence the unionization decision, and do only those things that are permissible.
78
State Worker's Compensation Laws
- Compensation for Work-related injuries/illness
| - exclusivity remedies.
79
State Worker's Compensation Laws
- Compensation for Work-related injuries/illness
| - exclusivity remedies.
80
Employee Traits vs Independent contractor
- trained by employer
- tools, office and requirements for job provided by employer
- hours worked, location of workplace, manner of work all controlled by employer
- most if not all employee's income comes from one employer
- employee must professionally perform work requested.
- Services are regularly and continuously performed
- paid by the hour, week, or month
- can be terminated by any lawful reason and employer has no liability (unless there is an employment contract or CBA that prohibits.)
81
Employee Traits vs Independent contractor
- trained by employer
- tools, office and requirements for job provided by employer
- hours worked, location of workplace, manner of work all controlled by employer
- most if not all employee's income comes from one employer
- employee must professionally perform work requested.
- Services are regularly and continuously performed
- paid by the hour, week, or month
- can be terminated by any lawful reason and employer has no liability (unless there is an employment contract or CBA that prohibits.)
82
Tests
- Common Law Control Test
- IRS 21 Factor (control) Test
- Economic Realities Test
83
Tests
- Common Law Control Test
- IRS 21 Factor (control) Test
- Economic Realities Test
84
Harrod v. Wineman Result
the Iowa Supreme Court noted in dismissing Harrod's claim that "this conclusion may, and doubtless does, work a hardship to the appellant Harrod, but is one against which he could have easily protected himself in framing the contract of service. Failing to do so, he is without remedy.
85
Harrod v. Wineman Result
the Iowa Supreme Court noted in dismissing Harrod's claim that "this conclusion may, and doubtless does, work a hardship to the appellant Harrod, but is one against which he could have easily protected himself in framing the contract of service. Failing to do so, he is without remedy.
86
Worker Adjustment and Retraining Notification (WARN) Act
Warn act covers employers with 100 or more full-time employees
87
Worker Adjustment and Retraining Notification (WARN) Act
Warn act covers employers with 100 or more full-time employees
88
WARN Act requires
Requires 60-days advance written notice before a plant shutdown or mass layoff. Notice goes to affected employees, labor unions and local/state government.
89
WARN Act requires
Requires 60-days advance written notice before a plant shutdown or mass layoff. Notice goes to affected employees, labor unions and local/state government.
90
Employee Privacy Rights
Protections under the constitution and tort law
- Electronic communications privacy act (stored communication act)
- Employee polygraph protection act
- Employee Testing
91
Employee Privacy Rights
Protections under the constitution and tort law
- Electronic communications privacy act (stored communication act)
- Employee polygraph protection act
- Employee Testing
92
Employee privacy rights: employee testing
- Drug testing
- AIDs testing
- Genetic Testing (GINA)
93
Employee privacy rights: employee testing
- Drug testing
- AIDs testing
- Genetic Testing (GINA)
94
Limited Liability Companies (LLCs)
-An LLC Offers the limited liability of a corporation and the tax status of a partnership. The owners of the LLC are called "members"
95
LLCs articles of organization
Articles of organizations must be filled with secretary of state. Business' name must inclue the initials LLC.
96
LLC popularity
The LLC is popular because it has: limited liability (members' liability is limited to the amount of their investment in the LLC), Favorable Tax Status (can be taxed as a partnership or corporation), duration (continues despite death/incapacity of a member), and flexibility (foreign investors can be members of LLC)
97
Franchises
Franchisor grants a right to sell goods or services to a franchisee in return for payment of a franchise fee.
98
Francise Uniform
Uniform product or services and the use of a trademark help the franchisee established quickly in the market.
99
Francise Laws
are still developing. Federal and state laws protect investors.
100
FTC Franchise Rule:
Franchisor is required to give an offering circular (disclosure statement) to potential franchisees at least 10 business days before transaction.
101
Franchise contract
sets forth rights and obligations of the parties.
102
Types of Franchises
- Distributorship
- Chain-style business operation
- Manufacturing
- Processing-plant arrangement
103
Franchises obligation of Good faith and fair dealing case
Holiday Inn Franchising Inc V. Hotel Associates, Inc.
104
C-Corporation
A corporation is a legal entity that is seperate from its owners (Shareholders).
105
C-corporation formation
Corporation is formed by filling articles of incorporation with the secretary of state.
106
C-Corporation different roles
- Shareholders
- Directors
- Officers
107
C-Corporation shareholders
The shareholders own the corporation and elect the directors
108
C-Corporations directors
The directors govern the general affairs of the corporation and appoint the officers.
109
C-Corporations officers
The officers conduct day-to-day business of the corporation
110
C-Corporation typically
it is typical in smaller corporations for an individual to hold two or three roles concurrently.
111
Manager-Managed LLC Default rules
- Except as provided elsewhere in the act, matters related to the activities of the LLS are decided by the managers
- Each manager has equal rights in the management of the LLC.
- Differences arising among the managers in the ordinary course of business are decided by a majority of the managers
- Decisions outside the ordinary course of business require unanimous consent of the members
- managers are selected by a majority of the members and can be removed at any time by a majority of the members without notice or cause.
112
Limited Liability Companies (LLCs) Operating agreement
An LLC's operating agreement spells out how the business will be managed, how profits will be distributed to the members, how membership interest can be transferred, decision-making procedures, and whether the LLC will be dissolved upon the death or departure of a member.
113
Limited Liability Companies: Fiduciary duties
- A managers owes duties of loyalty and care to the LLC and generally to the LLC's members.
- Members have similar duties of loyalty and care in "member-managed" LLC
114
LLC Fiduciary duty: a manger owes duties of loyalty and care to the LLC and generally to the LLC's members: case
Polk v. Polk
115
Some actions that may violate a partner's fiduciary duties of care and loyalty include
- Self dealing
- using partnership property for private profit/conflicts of interests
- Meinhard v. Salmon
116
Self Dealing
- competing with the partnership
| - Taking a business opportunity away from partnership without consent of partners
117
Meinhard v. Salmon
A partners failure to inform his partner of business opportunity- "The trouble about Salmon's conduct is that he excluded his coadverturer from any chance to compete, from any chance to enjoy the opportunity for benefit.
118
C-Corporation Control
Shareholders, Directors, Officiers, Flexible.
119
C-Corporation Liability
The debts incurred by the corporation generally cannot be collected from shareholders, directors, or officers.
120
C-Corporations Taxes
Double taxation, corporation pays tax on the income earned by the corporation and its shareholders pay tax on dividends received from the corporations.
121
C-Corporations taxation: under certain circumstances
under certain circumstances courts permit recovery against shareholders of the corporation and use the assets of the shareholders for the obligations of the corporation.
This is known as "piercing the corporate veil or disregarding the corporate entity.
122
Immigration law
- Immigration reform and control act of 1986
| - Immigration act of 1990
123
Immigration reform and control act of 1986
- I-9 Verification of newly-hired employees
| - enforced by ICE (US customs enforcement).
124
Immigration act of 1990
- H-1B visa program (visas in "specialty occupations")
| - other visas (H-2, O, L, and E)
125
Employee at-will
an "employee at will" is someone "whose job does not have specified duration" -- a job offer with no term/set duration of work.
126
At-will employees job protection
At-will employees can be fired for any reason (good or bad) at any time without any notice.
127
At-will employees protection
at-will employees can be protected from unfair discharged by contract, "judge-made" protections and/or statutory law.
128
Public policy limitations to the at-will doctrine: public policy exceptions
-whistleblowers
"retaliatory" discharge (E.g., workers compensation and unemployment compensation claims).
-clear mandate" of public policy (existing law or court decisions).
129
Wage and Hour laws
The fair labor standards act
130
The Fair labor standards act (FLSA)
- employers engaged in/affecting interstate commerce.
- minimum wage
- overtime pay
- child labor restrictions
- enforcement
131
the fair labor standards act: minimum wage
7.25
132
the fair labor standards act: overtime pay
1.5 pay for more than 40 work hours in work week.
133
The fair labor standards act: enforcement
- wage and hour division/ department of labor (DOL)
| - private lawsuit.
134
Employers like to classify workers as employees because
- employer can control worker's work (methods, manner, training, performance, ect.)
- employee is theoretically more loyal to employer
- can terminate employee usually without liability.
135
The family medical leave act
- covered employers, employees and events
- A "serious health condition"
- Leave provisions
- reinstatement rights
- enforcement.
136
The family and medical leave act: a serious health condition
An illness, injury or condition that requires impatient hospital care, or that lasts more than three days and requires continuing treatment by a health care provider, or that involves pregnancy, or a long-term or permanently disabling health condition.
137
The family and medical leave act: survey
A DOL survey shoed that 36% of employers described complying with FMLA "difficult" and nine of ten employers indicated that the FML does not "hurt productivity"
138
Workplace safety and health act
The occupational safety and health (OSHA)
139
The Occupational safety and health act (OSHA)
The OSHA covers any "person engaged in business affecting commerce who has employees, but does not include united states or any state or political subdivision of a state"
140
OSHA adminstration
The OSHA is administrated by the Occupational safety and health administration. (OSHA).
141
Coming together on issues
- Labor law
- Collective bargaining
- nature of the american economy
142
Coming together on issues: labor law
different and discrete from employment law
143
coming together on issues: Collective bargaining
negotiations and agreements between management and labor about wages, hours, and other terms and conditions of employment
144
coming together on issues: nature of the American economy
Shift from agrarian to industrial. Basis for modern issues.
145
Collective bargaining agreements list
- management security/rights clause
| - midterm negotiations
146
Collective Bargaining agreements: management security/rights clause:
Parties agree that management has the right to run the business and make appropriate business decisions as long as applicable laws and agreements are complied with. Catch-all clause allows management to make decisions not covered by the CBA or applicable law.
147
Collective bargaining agreements: midterm negotiations
Collective bargaining negotiations during the term of the contract.
148
types of labor relations in the public sector
- Federal employees
| - State, county, and municipal public employees.
149
Labor relations in the public sector: federal employees
- many states have collective bargaining statutes covering most public employees
- federal restrictions
- civil service reform act of 1978
150
civil service reform act of 1978
federal labor relations authority
151
Labor relations in the public secto: state, county, and municipal public employees
- professional associations
- craft unions
- industrial-type unions
- AFL-CIO
- Difference between public and private collective bargaining.
152
Traits of independent contractor
- already trained or trains self
- provides own tools, equipments, materials for the work
- provides work or services to more than one employers
- is not economically dependent solely on one employer
- has a stake in the profits and losses of his or her business.
153
Independent contractor: termination
Termination of the services of the independent contractor by employer could lead to breach of contract suit. likewise, poor performance on the part of independent contractor could lead to breach of contract suit.
154
Independent contractor: payment
is usually paid by the project, no hourly , weekly,ect.
155
independent contractor: method
manner and method of work is not controlled by employer.
156
FLSA exemptions-- overtime and minimum wage
- administrative employees
- executive employees
- professional employees
- outside salesperson
- computer programmer
157
Overtime and minimum wage: administrative employees
-salaried employee; non-manual work that is directly related to management policies or to the general operation of the busienss
158
overtime and minimum wage: administrative employees case
Smith v. Johnson and Johnson
159
overtime and minimum wage: executive employees
salaried employee; management job duties and regularly supervise 2 or more employees
160
overtime and minimum wage: professional employees
- salaried employee
| - "learned" profession/artist talent/ skill.
161
Employment at will: Horace G. wood, a treatise on the law of master & servant (1877)
With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring the burden is upon him to establish it by proof...it is an indefinite hiring and is determinable at the will of either party , and in this respect there is no distinction between domestic and other servants.
162
Employers like to classify workers as independent contractors because
- They're less expensive (no payroll taxes, benefits, ect)
- they're more motivated
- employer is not vicariously liable for their negligence
- anti discrimination and other employment law s don't apply.
163
Out of necessity comes change:
- national war labor board
- national industrial recovery act
- decrease in unionization
- labor unions still remain an important part of the work place.
164
Out of necessity comes change: national war labor board
-peacful resolution of labor disputes
165
Out of necessity comes change: national industrial recovery act
-put business in charge of regulating prices and production
166
out of necessity comes change: national industrial recovery act
- put business in charge of regulating prices and production
- established a minimum wage
- gave workers collective bargaining and other rights
- declared unconstitutional in 1935
167
OUt of necessity comes change: decrease in unionization
- reduction in heavily unionized industries
- agressive nonunionizing campaigns by employers
- union concessions during downturns in the economy
- North American Free Trade Agreement (NAFTA)
- international competition
168
The Taft-Hartley Act
- Amendment to the NLRA
- enacted to curb excesses by unions
- section 7, unfair labor practice for unions to
169
The taft-hartley act: section 7, unfair labor practice unions to
- restrain employees in the exercise of their rights or employers in the selection of their representatives for collective bargaining.
- cause an employer to discriminate against an employee.
- refuse to bargain with an employer
- engage in jurisdictional or secondary boycotts
- charge excess or discriminatory initiation fees or dues
- cause an employee to pay for goods or services that are not provided.
170
An example of an at-will employee
Mr humberfloob (sean Hayes) fires an employee in the Cat in the Hat for simply trying shake his hand
171
An example of an at-will employee Mr. Humberfloob reason for firing
Mr. Humberfloob has a thing about germs. At-will employees can be discharged for any reason- good or bad- which does not violate law or contract.
172
A Historical Accounting
- Antitrust Attacks
- Constitutional challenges to early congressional enactments.
- The national labor relations act
- Administered by NLRB
- unfair job practices by unions are notably missing from the act.
173
A Historical Accounting: Antitrust Attacks
- Sherman Antitrust Act
- Secondary Boycotts
- Clayton Act
174
A Historical Accounting: Antitrust attacks: Secondary Boycotts
Union pressure on management by getting others wo do business with management to cease
175
A Historical Accounting: Antitrust Attacks: Clayton Act
issue of injunction against labor
176
A Historical Accounting: Criminal Conspiracy laws
early union activity considered to be common law criminal conspiracies
177
A Historical accounting: injunctions
Court order requiring individuals or groups of persons to refrain from performing certain acts that the court has determined will do irreparable harm.
178
A historical accounting: injunctions: yellow dog contracts
Agreements stating that employees do not belong to a union and will not join one; now illegal.
179
Key points Frank's respondent
"Frank's respondent superior theory is premised on the claim that his father was an employee of the newspaper...at the time of the injury. If that is true, the company would..be responsible for any negligence of the father at the time of the injury.
180
Key Points newspaper company position
The newspaper company takes the position that the father was an independent contractor.
181
Misclassification as independent contractor
- IRS can assess very severe penalties (equal to 20% of FICA)
- Back taxes (FICA and FUTA) can be assessed with interest and penalties.
- Under FLSA employer could be liable for unpaid wages or overtime compensation, also accrued and unpaid benefits
- FLSA fines
182
Professional Limited Liability Companies: the Iowa LLC
The Iowa LLC act contains a special subchapter devoted to professional limited liability companies.
183
Professional Limited Liability Companies:Name
The name of a professional limited liability company must include the words "professional limited company" or abbreviation "PLC"
184
Professional Limited Liability: Practices
May practices its designated profession only through persons who are licensed to do so.
185
Professional Limited Liability Company: Membership
May issue membership intrest only to person with professional license in the designated profession, and may not issue any interests that are convertible into interest therein. members of such companies may assign their membership interests only to persons holding a license in the designated profession.
186
Partners' management duties
partners are personally liable are personally liable the debts of the partnership.
187
Partners' Management Duties: partners
Partners have a fiduciary duty (Act "in a trustworthy and confidential fashion") to their partnership. This includes the legal duty of care and legal duty of loyalty to the partnership. A partner must "account to the partnership" for profit or benefit the partner derives from the partnership, refrain from competing with the partnership, refrain from competing with the partnership, and refrain from "grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
188
A manager of choices
The sole proprietorship is the simplest, least regulated and most common form of business organization
189
Sole proprietorship: control
Sole proprietor has total control of business operations and complete share of profits
190
Sole proprietorship: Liability
all of sole proprietor's personal and business assets are at risk.
191
Sole Proprietorship: Taxes
Taxes reported on sole proprietor's personal tax forms.
192
Dissociation
occurs when a partner ceases to be associated in the carrying on of the partnership business.
193
Dissolution
the termination of a partnership
194
winding up
the process of collecting, liquidating, and distributing the partnership assets.
195
Advantage of S-Corporation
Avoid self-employment tax on dividends
196
Employment (including S-Corp shareholders): old age survivors and disability insurance (OASDI)
6.2% on employer (Deductible)
6.2 on employe (nondeductible)
income base cap $106,800 (2009)
197
Employment (Including S-Corp Shareholders): Hospital insurance (Medicad)
1.45% on employer (deductible)
1.45% on employee (nondeductible)
no base cap
198
Employment (including S-corp shareholders): Federal unemployment tax act (FUTA)
6.20% rates on employer (6% after 2009)(less state credit not exceeding 5.4% of first $7,000) (deductible). Base cap $7,000.
199
Self-employment (including partners): Old age survivors and disability insurance (OASDI)
12.4% (one-half deductible) Income base cap $106,800 (2009)
200
Self-employment (including partners): hospital insurance (Medicad)
2.9 (one-half deductible) no base cap
201
Self-employment (including partners: federal unemployment tax act (FUTA)
not applicable
202
New Iowa LLC statute
Effective January 1, 2009, new iowa code chapter 489 took effect. all LLCs formed on and after that date covered by the new law.
203
New Iowa LLC statute: current LLC
On January 1, 2011 the current LCC statute (490A) was repealed and all LLCs are now subject to Iowa code chapter 489.
204
Partnerships list:
- General partnership
- limited partnership
- limited liability partnership
- limited liability limited partnership.
205
Partnerships whats the difference between them
partner liability
206
Limited partnership control
general partner controls
207
limited partnership liability
no limited liability for general partnerships or limited partners who actively engage in the business.
208
limited partnership taxes
pass-through tax treatment
209
Limited Liability Company
A business entity organized under state law by filling a certificate of organization. a -Taxable as partnerships with management structures like an LP except that all members and managers have limited liability.
- Check the box regulations allow LLCs to be taxed as corporations (C and S) partnerships or disregarded entities.
- Wide variety of uses for single member LLs
- No ownership restrictions
- management flexibility-- corporate model or partnership model.
- Flexible transfer provisions.
- flexibility as to distributions and allocations.
210
Limited Liability Company shield
Complete limited liability shield for members comparable to that of a corporation.
211
Limited Liability Company pass through
"pass through" entity. No entity level tax.
212
Advantages of Subchapter K: partnership debt example
- members may only deduct losses attributable to entity-activities to the extent of a members "basis".
- in general, basis is the sum of a member's capital contributions, items of income/gain allocated to the member, less distributions and items of expense/oss
- in an LLC (or partnership), members are permitted to increase their basis by the member's share of entity-level liabilities.
- there is nothing like this in the corporate context.
213
Advantage of S-corporation: Employment taxas: S-Corporations
FICA, FUTA
214
Advantage of S-Corporation: Employment taxes: Subchapter K
SE Tax only
215
Advantage of S-Corporation: Dividends S-Corporation
Not subject to FICA or FUTA tax unless really wages.
216
Advantage of S-Corporations: Dividends Subchapter k
Taxed on all income even if not distributed.
217
Advantages of Subchapter K: section 754
in the event of a member's death (or certain other events), an LLC can make a 754," election which allows the basis of the assets of the LLC to be stepped up to fair market value.
218
Advantages of Subchapter K: Section 754 allows a person
This allows a person who succeeds to a membership interest to 1) take greater depreciation deductions and 2)recognize less gain on sale of LLC property.
219
Partnership Debt
Three members form ABC, LLC. ABC, LLC purchases building and pays 50k cash and assumes a purchase-money mortage of $150,000
220
Partnership debt each partner
Each partner made a constructive cash contribution of 50K
221
Partnership Debt Even if
Evae if ABC, LLC generates no gross income for several years, each partner may realize depreciation deductions up to its basis (at least $50K)
222
Certificate of Organization
under the new LLC statute, LLCs will file certificates of organization, not articles of organization.
223
required provisions: name of LLC
ULLCA: yes RULLCA: yes
224
required provision: office and agent for service of process
ULLCA: yes RULLCA: yes
225
Required Provisions: Name and adress of organizers
ULLCA: yes RULLCA: no
226
Required Provisions: Whether member- or manager-managed
ULLCA: yes RULLCA: no
227
Required Provisions: Whether LLC is for a term
ULLCA: yes RULLCA: no
228
Employes are more expensive
```
100,000 anual salary
FICA 7,650
Health Insurance 4,800
Unemployment Compensation Tax: 4,000
Worker Comp Premium- 500
Administrative expense- 20
extra cost to employer- 17,150.00
```
229
Collective Bargaining
- The legal duty to bargain "in good faith"
- mandatory subjects of bargaining
- dispute resolution processes involving contractual grievances (arbitration)
- concerted activities, strikes, and lockouts
- unfair labor practices.
230
The National Labor Relations Act of 1935 (Wagner Act)
The National Labor Relations Act
- Administered by NLRB
- Unfair job practices by unions are notably missing from the act.
231
The National Labor relations act
- enacted to avoid the unconstitutional delegation of legislative power
- outlines unfair labor practices
232
Respondeat Superior in Action
Alice Griffin is a lawyer who works in New York City. ON her way to work on Feb 10, 2004. Ms. Griffin stopped by her neighborhood starbucks and ordered a large decaf coffee. According to ms. griffin the starbucks clerk "slid the sleeveless cup toward her, but it tipped off the edge of the coutner] losing its top and fell on her foot." ms griffin claims that the spilled coffee caused 2nd degree burns to her foot and that "she still suffers pain when she puts her foot in anything, too hot or cold and can only wear certain kinds of shoes." her lawyer contends that "the clerk violated starbucks" rules that required coffee cups to have sleeves and securely fastend lids." ms. Griffin filed a lawsuit against starbucks and was awarded 301,000 in damages.
