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BLaw > Exam 4 > Flashcards

Exam 4 Flashcards

1
Q

What is a principal?

A

person from whom agent has received
instruction and authorization and to whose benefit agent is expected to perform and make decisions pursuant to agency relationship.

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2
Q

What is an agent?

A

one who agrees to act and is authorized to
act on behalf of another, a principal, to legally bind principal in particular business transactions with third parties pursuant to agency relationship.

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3
Q

What are the three broad categories of agents?

A

employee agents, independant contractors, gratuitous agents.

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4
Q

What is an employee agent?

A

Individual employees who are authorized to transact business on behalf of
employer/principal.

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5
Q

What is an employee nonagent?

A

Employee nonagent does not have authority to act on behalf of principal.

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6
Q

What is a gratuitous agent?

A

Agents who act on behalf of a principal without receiving any compensation.

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7
Q

What must a principal do to create an agency relationship?

A

To create agency relationship, principal must manifest some offer to form agency.

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8
Q

What standard do courts use to determine whether a principal manifested an offer to form an agency relationship and whether an agent consented?

A

Consent occurs when agent agrees to act for principal.

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9
Q

What type of agent is a professional service provider with multiple clients likely to be classified as?

A

Independent contractor

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10
Q

What role do direction and control have in determining whether an agent is classified as an independent contractor or an employee agent?

A

36

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11
Q

What are the potential liabilities from the Internal Revenue Service (IRS) for
misclassification of an employee as an independent contractor?

A

back employee taxes, penalty for wrongful classification, interest owed to government

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12
Q

In general, what are the two primary ways in which an agency relationship can be
terminated?

A

express act, operation of law

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13
Q

How did the Massachusetts Superior Court rule in Bosse v. Brinker Restaurant
Corporation d/b/a Chili’s Grill and Bar?

A

ruled in favor of Chili’s, granting summary judgment. The court found that the restaurant could not be held liable under the theory of respondeat superior for the actions of a patron who pursued two teenagers who had left the restaurant without paying their bill.

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14
Q

What are the differences between fully disclosed agency, partially disclosed agency, and undisclosed agency?

A

Fully: Occurs when third party entering into contract is aware of principal’s identity and
knows agent is acting on behalf of principal in transaction.
Partially: Occurs when third party knows that agent is representing principal but does not know actual identity of principal.
Undisclosed: Occurs when third party is completely unaware of agency relationship and believes that agent is acting on agent’s own behalf when contracting.

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15
Q

What is the difference between a frolic and a detour?

A

Frolic: when employee does something purely for employee’s own reasons that
are unrelated to employment, which releases employer from respondeat
superior liability.
Detour: when employee engages in minor deviation from employment, which is
still within ambit of respondeat superior.

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16
Q

What are the differences between actual authority (including express authority and
implied authority), apparent authority, and ratification?

A

Actual: when employee engages in minor deviation from employment, which is
still within ambit of respondeat superior.
Apparent: Sometimes agent acts in unauthorized manner (without express or implied authority) but still binds principal in contract.
Ratification: Occurs when principal affirms previously unauthorized act.

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17
Q

What is respondeat superior?

A

Under respondeat superior, employers are liable for negligent acts of employee agents.

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18
Q

Under what circumstance can an employer be liable for an employee agent’s intentional tort?

A

Generally, intentional torts by agent (e.g., assault and battery in the workplace)
are thought to be outside scope of employment, and employers are not liable for such conduct unless tort has close connection to serving principal.

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19
Q

What is the general rule regarding the liability that a principal has for the negligent acts of an independent contractor?

A

Principals are generally not liable for negligent acts
of independent contractors.
15

20
Q

How did the state’s high court rule in Riley v. Standard Oil Co. of New York?

A

ruled in favor of the defendant, reversing the jury’s finding of negligence. The incident involved a truck driver who was supposed to pick up barrels of paint and return to the factory but instead took a detour to deliver wood to his sister’s house, which was a personal errand and not related to his job duties.

21
Q

What is the employment-at-will doctrine?

A

Employment-at-will doctrine: deep-seated
common law rule that permits employer to
terminate employee with or without advance notice and with or without just cause, subject to certain exceptions.

22
Q

What are the three main situations in which the employment-at-will doctrine does not apply, and what are the differences between them?

A

(1) employee has express contract with
employer that displaces employment-at-will rule;
(2) there is common law exception that protects employee; or
(3) there is some specific statutory protection against job termination that protects employee.

23
Q

What are the three common law exceptions to the employment-at-will rule, and what are the differences between them?

A

1) Public policy exception;
* 2) Implied contract protection; and
* 3) Covenant of good faith and fair
dealing.

24
Q

What is the False Claims Act?

A

Federal statute that contains anti-retaliation provision that protects employees who disclose that their firm has committed fraud in dealing with contracts with federal government.

25
Q

Under what circumstance may an employer terminate an employee who is a
whistleblower?

A

Employers may terminate employees who are whistleblowers if they can show
that termination was for reasons that are separate from and independent of any
whistleblowing.

26
Q

How did the Michigan Supreme Court rule in Wurtz v. Beecher Metro District?

A

ruled that the Michigan Whistleblowers’ Protection Act (WPA) does not extend protections to employees seeking renewal of a contract after it has expired.

27
Q

What are the four primary mandates of the Fair Labor Standards Act?

A

(1) payment of minimum wage;
* (2) maximum 40-hour work week,
* (3) overtime pay, and
* (4) restrictions on children who work in certain
occupations and during certain hours

28
Q

What are the employer defenses to a workers’ compensation claim?

A

(1) employer has engaged in actions that intentionally create conditions that
result in harm, or
(2) employer acts with reckless disregard for safety of its employees.

29
Q

What is the Employee Retirement Income Security Act (ERISA)?

A

Regulation of pension funds and retirement savings plans is under federal
statute called Employee Retirement Income Security Act (ERISA) of 1974.

30
Q

What is the Social Security Act (SSA), and how are benefits funded under the SSA?

A

Social Security Act (SSA) of 1935 provides retirement income from federal
government to workers.

31
Q

What is the Occupational Safety and Health Act (OSHA)?

A

Occupational Safety and Health Act (OSHA), passed in 1970, is federal statute intended to prevent workplace injuries.

32
Q

What is the Family and Medical Leave Act (FMLA)?

A

In 1993, Congress passed Family and Medical Leave Act (FMLA), which sets out basic protections for workers who need brief leave from work to care for themselves or immediate family member.

33
Q

In general, how does the privacy protection from the employer in the workplace that employees have regarding their telephone calls and voicemail compare to the privacy protection from the employer that employees have regarding their usage of the employer’s computer system?

A

Employees have certain protections for telephone calls and voicemail under the
Electronic Communications Privacy Act (ECPA).

34
Q

What is the National Labor Relations Act (NLRA)?

A

National Labor Relations Act (NLRA) of 1935 provides general protections for
rights of workers to organize, engage in collective bargaining, and use economic
weapons (such as strike) in collective bargaining process

35
Q

What is the National Labor Relations Board (NLRB)?

A

Statute contained enabling provision that formed National Labor Relations
Board (NLRB) to administer, implement, and enforce law’s provisions.

36
Q

How did the U.S. Supreme Court rule in Integrity Staffing Solutions v. Busk?

A

39

37
Q

What is the Equal Employment Opportunity Commission (EEOC)

A

Civil Rights Act of 1964 created Equal Employment Opportunity Commission
(EEOC), which is federal administrative agency charged with carrying out federal
workplace antidiscrimination laws.

38
Q

What are the protected classes under Title VII of the Civil Rights Act of 1964?

A

Title VII prohibits discrimination in workplace on basis of employee’s race, color, religion, sex, or national origin.

39
Q

What are the differences between the three common theories of discrimination?

A
  • (1) disparate treatment (McDonnell
    Douglas standard),
  • (2) mixed motives (Hopkins standard), and
  • (3) disparate impact (Griggs standard)
40
Q

What are the differences between the two common theories of sexual harassment?

A

1) Under quid pro quo theory, harasser demands sexual favors as a condition of
continued employment or prerequisite for promotion or pay raise, for example.
* 2) Under hostile work environment theory, violation of Title VII occurs when
conduct of harasser(s) is of such severe and crude nature, or is so pervasive in
workplace, that it interferes with victim’s ability to perform victim’s job
responsibilities.

41
Q

What is the age requirement for an Age Discrimination in Employment Act (ADEA)
claim?

A

employee is 40 years old or over

42
Q

What does the Americans with Disabilities Act (ADA) require in terms of
accommodations in the workplace?

A

ADA requires employer with 15 or more employees to make reasonable accommodations for employee with
disability in workplace so long as accommodation does not cause employer to suffer undue hardship.

43
Q

How is a disability defined under the Americans with Disabilities Act (ADA)?

A

ADA defines disability as physical or mental impairment that substantially limits
person’s ability to participate in major life activities.

44
Q

What is the Equal Pay Act?

A

Equal Pay Act (EPA) of 1963 makes it illegal for
employers to pay unequal wages to men and
women who perform substantially equal work.

45
Q

What are the differences between the five common employer defenses to discrimination claims?

A

1) Farragher/Ellerth Defense
* 2) Business Necessity Defense
* 3) Bona Fide Occupational Qualification
* 4) Seniority
* 5) Employee Misconduct

46
Q

How did the U.S. Court of Appeals for the Tenth Circuit rule in Morris v. City of
Colorado Springs d/b/a Memorial Health System?

A

The appellate court upheld the district court’s decision to allow discovery of evidence concerning prior allegations against the surgeon.

BLaw (4 decks)

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