EXAM 4 Flashcards
1
Q
When Principal acts on their own behalf, who is liable?
A
The Principal is ALWAYS liable
2
Q
Agency Agreement is where:
A
The employee gets authority from their employer
3
Q
Who does a 3rd Party Contract happen between
A
Principal and 3rd Party
4
Q
3 Types of Authority
A
Express, Implied, Apparent
5
Q
Express Authority
A
Oral or Written Authority
6
Q
When does Express Authority happen
A
For specific events or for a long time
7
Q
Implied Authority
A
Implied from express authority or actions from Principal
8
Q
When is an agent NOT bound to the contract?
A
When they are acting within their actual authority
9
Q
2 Requirements for Apparent Authority:
A
Principal and Agent known relationship, 3rd Party reasonably believes Agent has actual authority
10
Q
When looking objectively at apparent authority, we must look at the situation from the perspective of the __________
A
3rd Party
11
Q
Agent can be liable to Principal for
A
Breach of Duty of Obedience
12
Q
Apparent Authority can exist when:
A
Fired/Quit, 3rd Party unaware, Agency Agreement not terminated due to death, Agent exceeds actual authority
13
Q
How apparent authority is cut off:
A
Death/Incapacity of Principal, Principal must notify in order to cut off
14
Q
Actual Authority is terminated earlier for death/incapacity if:
A
Agent is given notice of death/incapacity or reasonable time has passed since last communication
15
Q
2 Types of Notice
A
Actual, Constructive
16
Q
Actual Notice is required when:
A
3rd Party has dealt with Agent before to contract w Principal
17
Q
Actual Notice can be _______________ but it must be _______________
A
Oral or written; CLEAR
18
Q
Constructive Notice Example
A
Newspaper, Journal Ad
19
Q
Constructive Notice required for:
A
Current customers (didn’t deal w Agent), Non-customers
20
Q
Ratification occurs when
A
Agent enters into a contract on Principal’s behalf w neither actual nor apparent authority
21
Q
Ratification can be
A
Express (oral/written) or Implied (accept benefits of contract)
22
Q
If ratified, when is the Principal liable?
A
BEGINNING OF THE CONTRACT
23
Q
Requirements for ratification
A
ENTIRE contract must be ratified before the 3rd party withdraws
24
Q
Can ratifications be revoked?
A
NO
25
3 Types of Principals
Disclosed, Partially Disclosed, Undisclosed
26
Actual Authority, Disclosed
P – TP: bound
27
Actual Authority, Partially Disclosed
P – TP: bound
A – TP: bound
P – A: reimbursement
28
Actual Authority, Undisclosed
P – TP: bound
A – TP: bound
P – A: reimbursement
29
Apparent Authority, Disclosed
P – TP: bound
P – A: indemnity
30
Apparent Authority, Partially Disclosed
P – TP: bound
A – TP: bound
P – A: indemnity
31
Apparent Authority, Undisclosed
NONE
32
No Actual or Apparent Authority, Disclosed
A – TP: liable
33
No Actual or Apparent Authority, Partially Disclosed
A – TP: bound
34
No Actual or Apparent Authority, Undisclosed
A – TP: bound
35
2 Types of Torts involving P and A:
P authorizes A's tort, P does NOT authorize A's tort
36
If P authorizes A's tort, who is liable?
P if A is an AGENT, A can also be held liable but has the right to indemnification
37
Authorized torts can be:
Intentional, Strict Liability, Negligence
38
If P does not authorize A's tort, they can still be held liable under
Respondeat Superior if A is acting within the scope of their employment
39
Respondeat Superior in Latin means
The master must answer
40
Scope of employment:
Work assigned or things done while on the clock
41
If employee was not within the scope of employment, they are said to be
On a frolic
42
P can also be held liable if:
Authorized tort, Their negligence was the cause of the tort, Strict Liability situations
43
For employer to assert defense for sexual harassment
No tangible adverse employment action was taken against harassed employee, employer had no knowledge, employer took immediate action to rectify
44
Is actual knowledge of harassment required?
NO
45
Immediate action could entail:
Separating employees, Halt to conduct, Firing harasser, Security for harassed employee
46
Hostile Work Environment
Reasonably interferes with an individual’s work performance OR creating “an intimidating, hostile or offensive” working environment
47
Notes to Hostile Work Environment
Does not have to be sexual, doesn't have to be pointed at employee, needs to be consistent
48
Requirements of Hostile Work Environment
P was employee, advance was unwanted, harasser was employee/IC/vendor, employer knew or should've known of conduct
49
Employer's Defense for Sexual Harassment
Disprove a requirement, Assert and prove defense
50
Requirements to be eligible to assert the Defense (harassment)
No tangible adverse employment action, Employer tried to stop, Employee didn't do anything (UNREASONABLY) to help themselves
51
Age Discrimination in Employment Act of 1967
No discrimination in age for employment decisions
52
What does the Age Act typically prohibit?
Mandatory Retirement
53
Defenses to Age Act
BFOQ, Seniority, Merit, "Reasonable" Reason
54
What age requires a notice about others their age being let go?
>40
55
Americans with Disabilities Act of 1990
Cannot be discriminated against if they have disability or handicap
56
Disability is
Physical/Mental impairment impairs 1+ life functions, History of disability, regarded as having a disability
57
What category of disability is protected but cannot be used on job
Recovering Addicts
58
Private employers must have _______ employees to be held liable for disability discrimination
15+ employees
59
Reasonable Accommodation
Applicant meets reasonable requirements, can perform essential functions with accomodations
60
Reasonable Accommodations do not have to be granted if
It causes undue hardship
61
Undue Hardship
SIgnificant difficulty or expense
62
If an employee wants an accommodation, they must
Disclose that they have a disability
63
Can an employer require a drug test?
No, but application process does not have to continue
64
Employer will be liable if employee is fired in violation of an:
Express contract, Implied Employment contract, Statute
65
Who gets overtime pay?
Non-Exempt Employees
66
To be exempt:
Make over $35k, salary regardless of quantity worked, manage 2+ people
67
Warn Act
Requires 60 days notice of layoffs
68
Required Warn Act
Employers with > 100 “full time” employees AND firing >50 employees at one location
69
Entities can only act
Through Agents
70
3 Types of Agents
Employees, IC, Power of Attorney
71
Law of Agency
Rules that govern the relationship, authority of agents, liability
72
3 Types of Authority
Broad, Middle, Narrow
73
Why would a 3rd Party want an IC to be an employee?
So that the Principal is liable for the tort
74
Most important factor that court weighs
Right to control
75
"How" to do the job is related to a
Employee
76
Other factors the court weighs
Exclusive work, equipment, skill, payment, when paid, permanency of job, integral job, profit/loss
77
3 Requirements for Agency Relationship existence
Agreement, P has some control over actions, worker will act on behalf of P
78
Principal liable if contract is signed by
AGENT
79
Form of the Agency Agreement
Oral, Written, Implied or a combo of these
80
Duties of Obedience
Act as authorized, lawful in their actions
81
Duties of Good Conduct/Diligence
Reasonably, carefully, competently
82
Duties to Inform/Notify Principal
Relevant info, conflicts of interest
83
Notice to Agent is
Notice to Principal
84
Duties to Account to Principal
Money/Property received/paid, no comingling of assets
85
Fiduciary Duties
Loyalty, no competing, maintaining confidential info
86
Agent can work w P and TP if
Fully disclose and both parties give informed consent
87
If Agent breaches duty, who is liable?
Agent for damages to the Principal
88
Duty of Compensation
P needs to pay A
89
Duty of Reimbursement
For "authorized" payments made by Agent on behalf of the Principal
90
Duty of Indemnification
P makes A "whole"
91
Duty of Good Faith
Act in good faith towards A
92
Duties of Employer
Imposed by tort law
93
2 Ways to Terminate Agency Relationship
Agreements or Operation of Law
94
If Agency Relationship is irrevocable:
P cannot terminate relationship without consent from A
95
EEOC stands for
Equal Employment Opportunity Commission
96
Where does EEOC get their authority?
Congress
97
EEOC Job
Process, Interpret, Investigate, Hear, Rule based on Fed Employment Law
98
EEOC Process
1. File inquiry
2. File Charge
3. Investigation
4. Hearings/Ruling
5. Notice of Right to Sue
99
Plaintiff needs to file charge before ___________________
filing a lawsuit for all claims
100
Exception to filing a charge before lawsuit
Equal Pay Act
101
Deadline to file for EEOC process
180-300 days from incident, much shorter time period
102
When does one need to file to sue after EEOC process
Within 90 days
103
Civil Rights Act of 1964 protects against discrimination for
Race, Color, Gender, Religion, National Origin
104
What is not protected under the CRA1964
Age, Disability
105
If an employee files a claim against an employer, the employer
CANNOT RETALIATE under CRA 1964
106
Title VII allows discrimination that
Doesn't affect employment
107
CRA1964 applies to
Businesses affecting commerce and having >15 employees, all govt entities
108
Is paid leave required under the Pregnancy Act 1978?
NO
109
Disparate Treatment
Employer intentionally discriminates
110
Process under CRA1964
Plaintiff makes a Prima Face Showing, Employer Defends, Plaintiff proves merely a pretext or mixed motives from employer
111
Does employee have to prove malice under CRA1964
NO
112
Employer must prove under CRA1964
Legit reason or defense under act
113
Compensation System based on Performance Results must be
OBJECTIVE
114
What does Bona Fide Occupation Qualification NOT apply to
Race
115
BFOQ can apply to
Authenticity, Privacy, Safety
116
What has to be a motivating factor for employee to prevail under CRA1964
Illegal Reasons
117
If pretext is proven,
Employer can appeal
118
If pretext is NOT proven,
Employee can appeal
119
Seniority System Violates CRA1964 if
Protected class was originally excluded from the position
120
Disparate Impact
Adversely affect a protected class, not impacting business
121
Examples of discrimination under Disparate Impact
Height, Weight, Strength
122
What is available under Disparate Impact only
Business Necessity
123
Business Necessity requirements:
Requirements and job itself reasonably necessary for business
124
5 Remedies for Violation of CRA1964
Injunction, Reinstatement, Payment of Back Pay, Money, Affirmative Action
125
What does not have to file under EEOC
Equal Pay Act
126
Equal Pay Act relates to
Discrimination based on payment between genders
127
2 Types of Sexual Harassment
Quid Pro Quo, Hostile Work Environment
128
Employer can defend themselves for sexual harassment claims by
Disproving one of the requirements, prove defense
