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