Employment Flashcards
Independent Contractor
Performs specific service described in a contract.
Example: criminal lawyer, carpenter, accountant.
Employee
Ongoing relationship with employer. Governed by specialized rules (employment law).
Dependent Contractor
Operates a separate business but has ongoing or exclusive relationship with employer.
Example: truck driver that only hauls for a single company.
Agent
Someone who represents his/her principal in dealings with a third party. Agent may be an employee or an independent contractor.
Two Types of Actual Authority
Expressed Authority: when principal directly grants authority to agent (usually by contract).
Implied Authority: inferred from surrounding circumstances and conduct of parties.
Apparent Authority
If principal does something to lead 3rd party to think agent has authority, then 3rd party can rely on representation.
Ratification
Where agent exceeds both actual and apparent authority, principal is not bound by contract.
Can the principal ratify?
- may ratify intentionally by expressly ratifying.
- may ratify inadvertently by taking some benefit.
What are the restrictions on ratification?
- must have been possible to enter into contract at time of ratification.
- must have been possible to enter into contract at time agent purported to act.
- must ratify within reasonable time after agent’s unauthorized conduct.
Vicarious Liability
When one person is held responsible for the torts committed by another. Both principal and agent may be held responsible.
Fiduciary Duty
agent’s obligation to act in best interests of principal.
Actual authority normally ends when:
- job is finished.
- agent receives different instructions from principal.
- employment or agency relationship is changed or ended.
- project becomes impossible to perform.
- principal dies, goes bankrupt, becomes insane.
Employment
Relationship based on contract law (common law).
Control Test vs. Organization Test
Control Test: degree of control excersized.
Organization Test: based on worker’s relationship to organization.
What are the obligations of the employer?
- safe workplace
- appropriate direction
- tools where appropriate
- wages
- reimbursement for expenses
What are the obligations of the employee?
- be reasonably competent.
- have the skills claimed.
- be honest, punctual, loyal.
- perform the word agreed to.
- owe a fiduciary duty if a manager or key employee.
Termination
- Employer can terminate an employee for ‘just cause’.
- Under common law, must give reasonable notice of termination in absence of ‘just cause’.
- may give notice or pay in lieu of notice.
Factors of Consideration for Reasonable Notice (Bardal Factors)
- length of service.
- important of job.
- age.
- likelihood of finding similar employment in the area.
Three Aspects of Just Cause
Misconduct: may not constitute just cause unless very serious. If less serious, employer should provide progressive discipline.
Incompetence: must clearly inform employee of shortcomings and him/her a chance to improve.
Inability to Perform Work: employer required to accommodate disabled employee providing it doesn’t place unreasonable burden on business.
Wrongful Dismissal
Court must determine if there was just cause for dismissal:
- if just cause, even if found after termination, no notice is required.
- if no just cause, then court must determine whether reasonable notice was given.
What are the three ‘bad faith’ damages?
Wallace/Honda Damages: humiliating manner of dismissal.
Aggravated Damages: where employee suffers ‘intangible injuries’ (usually mental distress).
Punitive Damages: meant to punish employer’s ‘malicious, oppressive, high-handed conduct’.
Constructive Dismissal
By demotion, transfer, or other significant changes in employment conditions, an employee may be made so uncomfortable that he/she will quit.
Employee can sue for constructive dismissal.
Employee may quit for causes if:
- given dangerous or illegal instructions.
- not properly situations.
- can no longer perform duties due to disability or illness.
- any important term of employment contract breached.
Collective Bargaining
Legislation allows workers the right to unionize and bargain collectively.
