Exam 4 Contents Flashcards
Agency
What is defined as the “fiduciary relations that results from the manifestation of consent by one person to another that the other shall act in his/her behalf and subject to his/her control and consent by the other so to act”
Fiduciary (when used as an adjective it is a fiduciary relationship)
What involves the trust between the principal and the agent; is at the heart of agency law; can be a noun or an adjective
What are the 2 types of agency relationships in business?
Employer-Employee Relationship
Employee Independent Contractor Relationship
Employer- Employee Relationship
typically all employees who deal with 3rd parties
are deemed to be agents of the business/owner(s).
– Salesperson in department store- making sales binding on owner
– Overlap between Employment and Agency Law (based upon common law)
Employment laws do not apply to who?
Independent Contractors
Independent Contractor
a person who contracts with another to do something for them but who is not controlled by the other party; may or may not be an agent;
ex.) homeowner hires a real estate agent to sell their home; hire a plumber to fix a leaky toilet; contractors and subcontractors are this
- Employer-Independent Contractor relationship:
– Independent contractor is a person who contracts with another to do something for them but who is not controlled by
the other party. The IC may or may not be an agent.
The criteria considered when determining whether a person is employee or contractor
is:
– How much control does the employer exercise over the details of the work?
* More control and detail= employee
– Is the worker engaged in an occupation/business distinct from that of the employer?
* If so, indicates IC
– Is the work usually done under the employer’s direction or by a specialist w/out supervisor?
* If done under employer discretion- employee
– Does the employer supply the tools at the workplace?
* If so-employee
– For how long is the person employed?
* Long period of time-employee
– What is the method of payment- time period or at the completion of job?
* Payment by time- every 2 weeks or monthly-employee
– What degree of skill is required?
* Great deal of skill-IC
IRS
states that the most important factor between an employee and IC is the degree of control the business exercises on the worker; they closely scrutinize firm’s classifications b/c of tax liabilities involved with employees
What may the IRS force the employer to do if cause misclassifying workers?
Pay all applicable taxes
“work for hire”
a person who creates a copyright work is the owner of the copyright unless what;
under copyright law, any copyright work created by an employee within the scope of his/her employment at the request of the employer is this
Who owns the copyright when an employer hires an IC unless the parties agree that the work is a “work for hire”?
The IC
What are formed by voluntary consent and agreement between parties; are normally consensual and do not need to be in writing & consideration not required?
Agency Relationships
An individual needs what in order to be a principal in an agency relationship; the rationale behind this is that if you can’t legally enter a K, you should not be able to do so indirectly through an agent?
Contractual Capacity
An agency relationship created for an illegal purpose is what?
Unenforceable
What are most agency relationships based on where the agent will act for the principal and the principal agrees to have the agent so act; these can be formed through expressed written or oral K’s?
Expressed or Implied Contracts
What is it called if a person who is not agent (or acting outside the scope of his/her authority) makes a K on behalf of another (principal) and the principal affirms (by actions/words) the K; this requires intent and intent can be expressed by words/actions?
Agency by Ratification
What is when a principal allows/causes a 3rd party to believe that an agent is acting on behalf of the principal and causes the 3rd party to act on that belief in his detriment; the 3rd party must prove that he reasonably believed an agency relationship existed (using reasonable person standard) and that the principal’s conduct / statements was the cause of the belief (not the agents)?
Agency by Estoppel
What is it called when courts may find agency relationships absent formal agreements; this can occur through family relationships (actions of one spouse may impose liability upon the other; parent and child as well) and emergency situations?
Agency by Law
What is it called when courts may find agency relationships absent formal agreements; this can occur through family relationships (actions of one spouse may impose liability upon the other; parent and child as well) and emergency situations?
Agency by Law
Once the principal-agent relationship has been established, what does each party owe the other?
The duty to act with the utmost good faith
What are the 5 duties that agents generally owe principals?
- Performance
- Notification
- Loyalty
- Obedience
- Accounting
“principal employer”
the main company or individual who ultimately controls and supervises a workforce, even if they don’t directly employ the workers themselves, typically utilizing a contractor/agent to provide the labor
Which of the duties owed by the agent to the principal is an implied condition that the agent will use reasonable diligence and skills performing the work; failing to do so may result in a breach of contract; this is judged by the reasonable person standard (ordinary care for level of skill advertised)?
Performance
Agents acting gratuitously (without payment) cannot be what?
Liable for breach of K (no K because no consideration)
- May still be liable for a tort
Which of the duties owed by the agent to the principal is where an agent is required to notify the principal of all matters that come to his attention concerning the subject matter of the relationship?
Notification (AKA duty to perform)
Which of the duties owed by the agent to the principal is the most fundamental duty; agent must act solely for the benefit of his principal and not in the interest of themselves / 3rd party; this must be undivided; cannot result in secret profits for agent/3rd party unless all parties agree to the arrangement?
Loyalty
What could it be a breach of agent loyalty to do?
Disclose confidential information during or after the relationship
Which of the duties owed by the agent to the principal is where the agent has a duty to follow all lawful & clearly stated instructions unless an emergency situation arises, in which the agent must act in good faith and reasonable if it is not clear?
Obedience
Which of the duties owed by the agent to the principal is where the agent must keep track and make available an account of all property & funds received and paid out; no commingling of funds (big issue for attorneys)?
Accounting
What are the duties generally owed to the agent by the principal?
- Compensation
- Reimbursement & Indemnification
- Cooperation
- Safe Working Conditions
Which of the duties owed by the principal to the agent is where the agent working for principal expects payment; principal must pay the agreed upon value for services in a timely manner?
Compensation
Which of the duties owed by the principal to the agent is where the principal must reimburse the agent for any necessary expenses incurred during the arrangement; the principal must also indemnify an agent for liabilities incurred because of authorized acts of the agent; principal not responsible for expenses nor must indemnify the agent for misconduct / negligence or unauthorized acts?
Reimbursement & Indemnification
Which of the duties owed by the principal to the agent is where the principal has the duty to work with the agent and to assist the agent in performing his duties; issue of exclusive agency?
Cooperation
What is it called where the principal cannot compete against the agent?
Exclusive Agency
Which of the duties owed by the principal to the agent is where the common law requires the principal to provide safe working premises, equipment, and conditions; Torts of workers compensation and OSHA are important here?
Safe Working Conditions
Since every duty of the principal provides a corresponding right for the agent (and vice versa), if one breaches then what is the other entitled to?
Remedy
An agent’s authority to act may be what?
- Actual (expressed or implied)
- Apparent
What happens if the agent acts outside the scope of their authority?
They still may bind the principal
What type of authority is declared in clear, direct, & definite terms (can be done orally)?
Expressed Authority
What rule is where some jurisdictions require that the K must be in writing, so must the agent’s authority to enter the K, otherwise the K is voidable?
Equal Dignity Rule
What are some exceptions to the equal dignity rule?
- Executive Officers of a corporation can conduct normal & business transactions without written authority from the corporation
- When the agent acts in presence of the principal, the rule does not apply
- When the agent’s signature is merely a formality
Giving an agent this confers expressed authority; this is a written document usually notarized; it can be special or genera; terminates on death or incapacity?
Power of Attorney
What allows agent to do what is reasonable & necessary to carry out the expressed authority and accomplish the objectives of the relationship; can be this by custom or inferred from the position the agent occupies; cannot contradict expressed authority?
Implied Authority
What type of authority is when the principal by words/actions causes a 3rd party to believe that the agent has authority to act, even though they did not (neither expressed or implied); usually occurs through a principal’s pattern of conduct over time?
Apparent Authority
In the case of apparent authority, what will a court apply when a principal has given a 3rd party reason to believe that an agent has authority to act; if the 3rd party reasonably relies on the principal’s representations to their detriment, the principal will be estopped from arguing the agent exceeded their authority?
Agency Estoppel
What is it called when an unforeseen emergency demands action by an agent to protect or preserve the property and rights of the principal, but the agent is unable to communicate with the principal; if the agent acts outside the scope of their authority here, they may still bind the principal?
Emergency Powers
What occurs when the principal affirms or accepts responsibility for an agent’s unauthorized act; the principal is now bound and treated as if the agent had expressed authority to act?
Ratification
What are the requirements for ratification?
- The agent must have acted on behalf of the principal who subsequently ratifies the action
- The principal must know all the material facts involved in the transaction
- The principal must affirm the agent’s act in its entirety
- The principal must have legal capacity to authorize the transaction at the time the agent engages in the act and at the time of ratification
- Principal’s affirmation must transpire before the 3rd party withdraws from the transaction
- Principal must observe the same formalities when ratifying the act as required to undertake the act- The agent must have acted on behalf of the principal who subsequently ratifies the action
- The principal must know all the material facts involved in the transaction
- The principal must affirm the agent’s act in its entirety
- The principal must have legal capacity to authorize the transaction at the time the agent engages in the act and at the time of ratification
- Principal’s affirmation must transpire before the 3rd party withdraws from the transaction
- Principal must observe the same formalities when ratifying the act as required to undertake the act
What depends on how the principal is classified and whether the action of the agent was authorized or unauthorized?
Liability for Contracts
What are the classifications of principals?
-Disclosed
-Partially Disclosed
-Undisclosed
What principal classification is where the identity is known to the 3rd party at the time the K was formed?
Disclosed Principle
What principal classification is where the identity is not known, but the 3rd party knows the agent MAY be acting for a principal at the time the K was formed?
Partially Disclosed Principle
What principal classification is where the principal is totally unknown and there is no knowledge that the agent is acting in agency capacity?
Undisclosed Principle
With authorized acts, what is the principal required to do if the agents acts within the scope of his authority?
Principal is obligated to perform the K regardless of principal’s status
With authorized acts, what will the agent’s liability under the K depend on?
Whether the principal’s status was undisclosed or partially disclosed
What principal classification for authorized acts is liable to a 3rd party for a K made by the agent, but the agent has NO K liability for performance?
Disclosed Principle
What principal classification is where for authorized acts most jurisdictions treat the agent as a party to the K and thus liable under the K?
Partially Disclosed Principle
What principal classification is where for authorized acts the principal is liable for the K and must indemnify the agent; once the undisclosed principal’s identity is revealed, the 3rd party can elect to hold either the principal or agent liable under the K; undisclosed principal can require the 3rd party to fulfill the K under certain circumstances?
Undisclosed Principle
With undisclosed principals under authorized acts, the undisclosed principal can require the 3rd party to fulfill the K unless one of the following are true?
- The undisclosed principal was expressly excluded as a party in the written K
- The K is a negotiable instrument signed by the agent with no indication of signing in a representative capacity
- Performance of the agent is personal to the K; thus, allowing the 3rd party to refuse the principal’s performance
With unauthorized acts, if the agent has no authority but contracts with a 3rd party, what happens to the principal?
Cannot be held liable under the K; the agent is solely liable
With unauthorized acts, what is the agent’s liability if the principal is disclosed or partially disclosed and the agent contracts with a 3rd party without authorization?
Agent’s liability based upon implied warranty of authority
What holds that the agent has the authority to enter the K on behalf of the principal; if 3rd party knows the agent does NOT have the authority, no liability to the agent?
Implied warrant of authority
What is a semi-autonomous software that can execute specific tasks and enter into binding agreements on behalf of their principals (ex. internet orders); today the same agency principles apply to human agents and these agents?
E-Agents
What is when a principal acts through an agent and may be liable for harm resulting from the principal’s own negligence / recklessness; could arise by improper instructions, authorizes the use of improper materials or tools, or establishes improper rules that results in the agent’s committing a tort?
Principals’ Tortious Conduct
A principal who authorizes an agent to commit a tort may be what?
Liable to persons or property because the act is the principal committing the act
What says that a principal is exposed to tort liability whenever a 3rd party sustains an injury due to an agent’s misrepresentation; principal’s liability depends on whether the agent was actually or apparently authorized to make representations and whether the representations were made within the scope of the agency?
Liability for Agent’s Misrepresentation
What says that an agent is liable for his own actions; a principal may also be liable for harm an agent causes to a 3rd party under the doctrine of respondeat superior (let the master respond)?
Liability for Agent’s Negligence
What holds that a principal/employer is liable for any harm caused to a 3rd party by an agent/employee in the course or scope of employment; is like the theory of strict liability in that liability is imposed regardless of fault; doctrine imposes vicarious liability (indirect liability) because principal/employer is being held liable for torts committed by the agents?
Respondeat Superior
What is the key to determining whether a principal may be liable under the doctrine of respondeat superior?
Scope of Employment
What are the factors that courts look at to determine whether or not the agent’s acts were within the course and scope?
- Was the employee’s act authorized by employer
- The time, place, and purpose of the act
- Was the act one that is commonly performed by the employees on behalf of the employer
- To what extent was the employer’s interest advanced by the acts
- To what extent was the private interests of the employee were involved
- Did the employer furnish the means or instrument by which an injury was inflicted
- Did the employer have reason to know that the employee would perform the act in question and had the employee done it before
- Did the act involve the commission of a serious crime
What is the important distinction between a detour and a frolic in terms of the principal’s liability?
- If an agent merely takes a detour from his principal’s business then the principal is liable
- As opposed to a “frolic of his own” and not in any way on his principal’s business then the principal will not be liable
- Ex.) Any employee going to and from work or from meals is outside the scope of work; however, if travel is required and while traveling that is considered within the scope of work
What says that most intentional torts by an agent have no relation to their employment and their employers will not be held liable; must look at the doctrine of respondeat superior (the employer may be liable for intentional torts in examples such as bouncers at bars, security guards, police officers - employees who have propensities to act)?
Liability for Agent’s Intentional Torts
What says that an employer is not liable for the physical harm caused to a 3rd person by the negligent act of IC in the performance of the K; rationale is that the employer lacks requisite control of the contractors performance; however, if the contract involves “hazardous activities” then strict liability will be imposed?
Liability for Independent Contractors Torts
What says that the principal is normally not liable for an agent’s crimes even if committed within the scope of employment; exception is if the principal or employer participated in the crime by conspiracy or other action?
Liability for Agent’s Crimes
Agency law and K are similar in that both may be terminated by what?
Terminated by an act or by operation of law
Once terminated, the agent no longer has the right to what?
Bind the Principal
What is required for apparent authority to terminate?
The third party needs to be notified of the termination
Termination by Act of the parties may include what?
- Lapse of Time
- Achievement of Purpose
- Occurrence of Specific Event
- Mutual Agreement
- Option of One Party
The act of termination is called what if done by the principal and what if done by the agent?
- Done by principal: Revocation
- Done by agent: Renunciation
What may subject the cancelling party to a lawsuit for Breach of K; while both parties have the POWER to terminate an agency relationship, one or both parties may not have the RIGHT to do so?
Wrongful Termination
What is where the principal may still be required to give the agent reasonable notice of termination?
Agency at Will
What says that when parties terminate an agency, it is the principal’s duty to inform any 3rd party who knew of the relationship that it has been terminated; no specific notice is required; however, apparent authority will continue until 3rd party receives notice of termination?
Notice of Termination
When is there generally no duty to notify 3rd parties; circumstances include:
- Death or insanity
- Impossibility (subject matter is destroyed)
- Changed circumstances
- Bankruptcy
- War (no way to enforce legal rights)?
Termination by Operation of Law
What are employment relationships generally governed by; basically, either party may terminate the employment relationship at any time for any reason, unless it violates statutory or contractual rights; exceptions to the doctrine are violation of civil rights or CBAs?
Employment at Will
What says that courts have held that an implied employment contract exists between the employer and employee; if the employee is fired outside the terms of the implied contract, the employee may succeed in an action for breach of contract, even if no written K exists?
Exceptions to employment at will based upon K theory
- Ex.) Off-duty misconduct not tied to employment
What says that the termination of an employee may give rise to a wrongful discharge under tort theory; abusive discharge procedures may result in a lawsuit for intentional infliction of emotional duress; fraud may be another ground if an employer made false promises?
Exceptions based on tort
What is the most common exception to employment at will based on public policy; involves telling government authorities, upper-level management, or media that the employer has engaged in illegal activity or unsafe activity; since you are exercising legal rights there is a grievance process?
Whistleblowing
What is when an employer terminates an employee for illegal or unlawful reasons?
Wrongful Discharge
Who has enacted several laws over the years to regulate hours and working conditions of employees?
Congress
What requires contractors and subs working on federal government construction projects to pay “prevailing wages”?
Davis-Bacon Act
A prevailing wage is the average hourly rate paid to most workers in a specific occupation and area.
What applies to US government contracts, whereby it requires that a minimum wage as well as overtime be paid at 1.5 times the regular pay rate?
Walsh-Healey Act
What extended wage hour requirements to just about all employees; established the distinction between exempt vs. non-exempt employees and says that exempt employees primary duty is management and as such they need to exercise discretion and independent judgment; requires OT when an employee works over 40 hours in a week?
Fair Labor Standards Act (FLSA)
What does the FLSA also prohibit?
Exploitation of Child Labor
What age group can work, but very limited like newspaper delivery, farm work, entertainment, work for parents?
Children under 14
What age group can work except hazardous occupations and use limited equipment; hours per day (working times as well) and week are limited?
14-15 years old
What age group has hours and working times not restricted; but still cannot work hazardous jobs?
16-18 years old
What age group has no restrictions on work?
18 or over
What must be paid to all employees for “time worked”?
Minimum Wage
What is the minimum wage for tipped workers?
Tips plus wages must equal minimum wage; tip credit for wait staff / bartender
2.13/hr
Who frequently enacts legislation that may impact federal wage and overtime laws?
State and Local Legislature
Ex.) state passes a law forbidding an employer from exercising “tip deduction”
Ex.) A state requires at least one day off per week, and employer requires work on that day will require OT for that day (including state holidays)
In terms of layoffs, what applies to all employers with AT LEAST 100 EMPLOYEES; this act requires these employers to provide 60 days notice before implementation of a mass layoff (1/3 of the full time employees at the job site) or closing of a plant?
Worker Adjustment and Retraining Notification Act (WARN)
What part of the WARN act allows employees to find new jobs while still being employed?
Notice
What does the WARN act allow state agencies the time to do?
Help displaced workers to find jobs/training/resources
What will NOT discharge obligations under the WARN act?
Bankruptcy
What are the penalties for violations of the WARN Act?
- Fines for violations can be up to $500 a day
- Employees can recover back pay for each day of violations (up to 60 days) and attorney fees necessary to enforce their rights
What was a federal law passed in 1993 and amended in 2008, 2009, and 2013 that balanced work and family responsibilities; 50 OR MORE EMPLOYEES TO QUALIFY (Public and private sector employees); changing demographics; job-protected leave and continuation of medical benefits; many states have adopted their own version of this?
Family and Medical Leave Act (FMLA)
What are the employer’s responsibilities under the FMLA?
- 12 weeks of UNPAID, job-protected leave per designated 12-month period
- Guaranteed continuation of medical benefits during an approved FMLA leave
- Job restoration upon return from an approved FMLA leave
- Medical certification required to substantiate need for leave
What are the requirements for employee’s eligibility under the FMLA?
- Been an employee for at least 12 months (need not be consecutive)
- Worked 1,250 hours during the 12-month period immediately preceding the date when the requested leave would begin (part-time, seasonal/intermittent, temporary employees and students may qualify)
- Only hours actually worked may qualify to be counted to meeting the 1250 hr eligibility
- Employees returning from fulfilling their National Guard or reserve military obligation must be credited with the hours of service that would have been worked during the period of military service
What are the qualifying reasons to apply FMLA?
- Employee’s serious medical condition that prevents them from performing the essential functions of the position
- Birth of a child and care for the newborn child (bonding leave) within a year
- Placement with the employee of a child for adoption or foster care within a year
- To care for family member (spouse, child, or parent of the employee) with serious qualifying health condition (GRANDPARENTS ARE NOT COVERED)
- Qualifying exigency arising out of the fact that the employee’s spouse, child, or parents is a covered military member active duty; military may qualify for up to 26 weeks of leave
What are the 3 main FMLA employee protections?
1.) Use of FMLA leave time cannot be counted against an employee for attendance purpose policies
2.) Use of FMLA time cannot be used as the basis for a negative performance evaluation
3.) Use of FMLA time cannot be used as a negative factor in employment actions, such as hiring, promotion, or disciplinary action
What are some examples of the adverse consequences for the employer that may arise due to violations of the FMLA?
- Damages for lost wages and benefits
- Job reinstatement
- Promotion, if the employee was denied a promotion with back wages
- Penalties and fines from DOL
A successful plaintiff under the FMLA would also be entitled to what?
- Court and attorney costs (supervisor and employer are generally named in the suit)
- If the employee acted in bad faith, the plaintiff could recover 2x the damages
Employees need not do what for the employer to be liable?
Ask for FMLA leave
In the past under common law, what did employees injured on the job have to do?
Had to file a lawsuit (sue their employer)
Today, who have enacted laws to protect employees who are injured on the job (social security, medicare, unemployment insurance and workers’ comp)?
Federal and State Governments
What is a law that protects workers in the workplace by establishing OSHA (the administration/agency) to establish and oversee workplace safety standards?
OSHA (the act)
What has established specific safety standards that all employers must follow; the standards are based upon the industry?
Occupational Safety and Health Administration (OSHA)
What does OSHA require employers to post in the workplace; maintain specific records and annual reports?
Notices and Reports
Under OSHA, employers with more than 11 workers are required to keep what?
Occupational injuries and illness records for employees
Under OSHA, what must employers do if there is a work-related fatality or serious injury requiring hospitalization?
Employers must notify OSHA within 8 hours of a death and within 24 hours of serious injury (hospitalization, disfigurement, amputation, eye loss); failure to do so will result in a fine
Who will investigate/inspect the work premises if an issue arises?
OSHA
What says that OSHA agents may enter and inspect the facility of any establishment covered by the OSHA act?
Inspection
Who can also file grievances with OSHA and are protected when doing so?
Employees
What establish a procedure to compensate workers for injuries sustained on the job without having to sue their employer; all states require employers to provide this type of insurance, but specific with regards to coverage vary from state to state?
Workers Comp Laws
What have states established that employers pay into and this compensates injured employees under WC?
A fund
States may also allow employers to purchase what to cover employees in the event of an OTJ injury?
Separate WC insurance policy
Some states allow certain employers to be what in regards to WC; no payments and no private policy required?
Self-Insured
What are the exceptions to WC?
- Domestic Workers
- Agricultural Workers
- Temporary Workers
What are the requirements to receive WC benefits?
- The existence of employment relationship (cannot be an IC)
- An accidental injury that occurred OTJ or in the course of employment (cannot be intentional or outside the course of employment and commuting to and from work is not covered)
If an employee accepts WC benefits, what may they no longer be able to do?
Sue for injuries caused by the employer’s negligence (waiver)
Who cannot avoid liability under WC, even if a worker accepts WC benefits?
Employee benefit employers; employees may sue employers who intentionally injures an employee as well
What do both the Federal and State governments participate in that are designed to protect employees and their families for the financial impact associate with retirement, disability, death hospitalization, and unemployment?
Income Security Insurance Programs
What provides for retirement, survivor, and disability insurance; retired workers covered by this receive monthly payments based upon how much they made/paid in; workers classified as disabled may also receive monthly payments based upon their disability?
Social Security
What is a federal government health insurance plan administered by the Social Security Administration (SSA) for people over the age of 65 or individuals (under 65) who are disabled; originally included hospitalization and routine doctors appointments but now offers additional prescription drug plans?
Medicare
Both employees and employers pay a payroll tax to FICA to cover what?
Social security and Medicare
(through payroll deduction)
How are employee/employers taxed by FICA for SS?
The basis for the contribution is the employee’s annual wage (max is 145,000; 12.4% half paid by employee and employer)
How are employee/employers taxed by FICA for Medicare?
Tax rate is 2.9% split by the employee and employer (no cap on earnings)
What type of employees pay both social security and medicare taxes in full; provides an incentive for employer to treat employees as IC?
Self-Employed
What governs private retirement plans like private pensions; does NOT give authority to employers to create them but if they do, it authorizes the DOL to govern them?
ERISA
Employee Retirement Income Security Act of 1974
What gives an employee a legal right to receive pension benefits when the employee stops working; generally, all employees contribution to pension plans vest immediately; employee’s right to contributions usually do this after 5 years of employment?
Vesting
What created a state-administered system that provides unemployment compensation to eligible individuals who have lost their job; requires employers to pay unemployment taxes at regular intervals?
Federal Unemployment Tax Act
(FUTA)
What are the eligibility requirements for FUTA?
- Employee must be ready and willing to work
- Not terminated for cause or voluntarily resigned
- If work is turned down, lose benefits
What enables employees to continue their health insurance coverage after separation from employer - employee is responsible for all employer premiums?
COBRA
Consolidated Omnibus Budget Reconciliation Act
Generally, who must inform employees of their COBRA rights and offer COBRA?
Employers
Employees have how many days to elect participation under COBRA and have how many months to continue coverage?
- 60 days to elect participation
- 18 months to continue coverage
What are the penalties for failure to provide COBRA?
Tax of up to 10% of the annual cost of the plan or 500K, whichever is less
What contains provisions that affect employer sponsored health insurance plans; restricts the way employers collect, use, and disclose PHI of employees and family members?
HIPAA
Health Insurance Portability and Accountability Act
What must employers do to properly handle PHI?
- Designate Privacy Officials
- Distribute Privacy Notices
- Train employees
Failure to comply with HIPAA can result in what penalties?
- Civil penalties of up to $100 per violation
- Potential criminal prosecutions with fines up to $250K and imprisonment
What requires employers with 50 or more full-time employees (work 30 or more hours per week) to offer health insurance benefits; employers offering health insurance benefits to its employees may be entitled for tax credits?
Affordable Care Act
(ACA)
Under the ACA, failure to provide what may result in fines of up to 2K for each employee after the first 30 (50/30 rule)?
Health Insurance
An employer who offers an insurance plan costing more than what may also be assessed a penalty?
More than 9.5% of the employee’s income
More than 50% of employers employ some type of what; usually occurs through email messages, social media posts, employers may also video record employees and tape phone conversations?
Electronic Monitoring
What says that private employers have some limitations under tort law and state constitutions on what they can and cannot do?
Employee Privacy
What prohibits employers from intercepting an employee’s personal electronic communication unless made on devices and systems furnished by the employer; employers can use software to restrict access to certain websites (don’t always have 1st Amendment protections)?
Electronic communication privacy act
(ECPA)
What is where courts weigh employer’s interest against the employee’s reasonable expectation of privacy; if on notice of monitoring, there is no expectation of privacy, then courts typically hold that employees do not have an expectation of privacy when using employers’ systems?
Reasonable expectation of privacy
What generally prohibits employers from requiring employees or job applicants to take a lie-detector; exceptions for government employees and certain security firms?
Employee Polygraph Protection Act
Employers can drug test who?
Employees
What type of employer can drug test due to public safety or reasonable suspicion testing since the government is constrained by the 4th Amendment?
Public Employers
What type of employee has no 4th Amendment application protection; may be governed by State law, CBAs or company policy when it comes to drug testing?
Private Employers
What prohibits discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, and gender at any stage of employment?
Title VII of the Civil Rights Act
Title VII applies to employers with how many employees and labor unions with how many members; court has held that employers/unions with less than this number of employees/members are not automatically shielded from a lawsuit; all employers are covered?
15 employees / members
Who is charged with monitoring compliance with Title VII; employees looking to sue their employers for discrimination must first file with this group; can investigate, negotiate settlement, sue on behalf of the employee, or issue a “right to sue” letter?
Equal Employment Opportunity Commission (EEOC)
In order to bring a class action suit, the court has held the employees must prove what?
A company-wide policy of discrimination that had a common effect on all plaintiffs
Title VII prevents what type of discrimination?
Intentional (Disparate Treatment)
- Unintentional (Disparate Impact)
What type of discrimination says that intent is necessary; may be difficult to prove, so courts have established certain procedures for resolving these types of cases?
Intentional Discrimination (Disparate Treatment)
To establish a prima facie case (legitimate claim), the plaintiff must show what?
- the plaintiff is a member of a protected class
- the plaintiff applied and was qualified for the job in question
- the plaintiff was rejected by the employer
- the employer continued to seek applicants for the position or filled the position with a person not in a protected class
For a prima facie case, current/former employees must show they were treated in what what?
Fired or treated adversely for a discriminatory purpose
What says that if the plaintiff meets their prima facie case the burden then shifts to the employer; the employer must establish a legal reason why the plaintiff was not hired or fired?
Burden Shifting
If the employer can establish a legal reason why the plaintiff was not hired or fired, the burden now shifts back to the plaintiff to show what?
The employer’s pretext was untrue, but discrimination is the real motive
Sometimes employers screening process (interviews, tests, practicums, minimum qualifications) may have what?
Unintended Discriminatory impact on a protected class
What type of discrimination occurs when a protected group of individuals is adversely affected by an employer’s practices even though they do not appear to be discriminatory?
Unintentional Discrimination (Disparate Impact)
What must a plaintiff show to establish a cause of action under a disparate impact case?
The employer’s practices are effectively discriminatory; then the burden shifts to employer to justify the need for practices
How does the plaintiff show disparate impact?
- Applicant Pool
- Hiring Rate
In order to show disparate impact in the applicant pool, what must the plaintiff show?
- As a result of a practice, the % of a protected class in the employer’s workforce does not reflect the % in a qualified applicant pool
- If established, the plaintiff has met their prima facie case
In order to show disparate impact in the hiring rate, what must the plaintiff show?
- Comparing the selection rate of protected class individuals against non-protected class individuals
- When educational or other job requirements exclude members of a protected class from an employer’s workforce at a substantially higher rate than nonmembers, discrimination may have occurred (80% rule)
What refers to ancestry or ethnic characteristics of a group?
Race
What refers to a person’s birth country/ancestry/culture?
National Origin
To avoid Title VII claims of discrimination due to race, color, and national origin, the employer must show what?
That its standards or policies have a substantial, demonstrable relationship to realistic qualifications for the position
Title VII also protects against what other type of discrimination; the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously?
Reverse Discrimination
What refers to claims under 42 USC 1981 which gives a COA for individuals who are victims of racial or ethnic discrimination; this gives plaintiff an additional COA for discrimination in employment matters because employment is a K; key issue is that here there are NO CAPS on damages as opposed to Title VII?
Section 1981 Claims
Since Title VII prohibits government employers, private employers, and unions from discriminating against persons because of their religious beliefs, what can employers NOT require employees to do?
Can’t require or forbid employees from participating in any religious activity
What is an employer required to provide to employees to practice their religion and sincerely held beliefs, unless the accommodation would cause an undue hardship on the employer’s business; ex.) work on sunday?
Reasonable Accommodation
The law requires the employer to make a reasonable attempt to accommodate the employee’s request to provide an alternative accommodation, but the employer is NOT required to provide an accommodation that would cause what?
Undue Hardship
Ex.) Work on Sunday with an NFL Employee; BYU NCAA games on Sunday
What are some examples of how Title VII forbids discrimination based on gender?
- Employers cannot advertise jobs exclusively for men or women, unless they can show the job is exclusively for that gender
- Cannot have separate male and female seniority list
- Cannot refuse to promote based upon gender
What must the plaintiff show in a gender case?
That gender/sex was the determining factor in the employer’s decision to hire, fire, or promotion
What expanded Title VII to cover discrimination based upon pregnancy; women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not affected by pregnancy?
The Pregnancy Discrimination Act
What are some examples of how the Pregnancy Discrimination Act prevents discrimination?
- Can’t withhold insurance benefits from a pregnant woman
- Can’t not hire a woman because she is pregnant
- Employer must accommodate (under ADA) a woman during and after pregnancy
What requires equal pay for males and females working at the same employer performing the same work; there is no SOL so if you are employed by the employer you can sue at any time?
The Equal Pay Act
Wage differences related to what factors are NOT discriminatory?
- Seniority
- Education
- Merit
- Experience
Who are not expressly covered by Title VII; however, courts have been holding employers’ liable who discriminate (merely firing) based upon sexual orientation and gender identity?
Transgenders
What is it called when an employee is not fired per se but the conditions are so bad that the employee has no other choice but to resign; in claims involving this, the employee is usually seeking lost income and/or backpay (usually not available when a person resigns)
Constructive Discharge
In order to establish a Constructive Discharge case, an employee must show what?
- The working conditions were intolerable (hostile/toxic working conditions)
- The employer knew or had reason to know about the conditions and failed to remedy them
- Most courts require employee to prove causation; the employer’s discrimination caused the hostile/toxic working conditions
Most Constructive Discharge cases arise out of what, which is why the courts require that the plaintiff must prove that the employer’s discrimination caused the hostile/toxic working conditions?
- Demotion
- Lack of Promotion
- Disciplinary Action
Plaintiff’s can cite what to establish any type of discrimination under Title VII, however, most cited in sexual harassment cases and to a lesser degree age and disability?
Constructive Discharge
What are the 2 forms of sexual harassment that Title VII protects against?
- Quid Pro Quo
- Hostile Environment
What type of sexual harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits?
Quid Pro Quo
What type of sexual harassment is where the harassment is rampant int he work place and the employer ignores the issue; “severe or pervasive”?
Hostile Environment
What requires “tangible employment action” which is a significant change in the employment status; ex.) fired, demotion, discipline, or reassignment?
Harassment by Supervisor
What are the two-parts of the Employment Affirmative Defense (Ellerth/Faragher Defense); an employer who can prove both elements will prevail?
1.) the employer must have taken reasonable care to prevent and promptly correct any sexually harassing conduct
2.) the employee must have unreasonably failed to take advantage of preventive or corrective measures
What does Title VII protect against where employers may, demote, discipline, or reassign duties (negative employment action); employees are free to engage in any protected activity without fear of this?
Retaliation by Employers
What is where the plaintiff must show they opposed/complained about an employer’s practice that was prohibited by Title VII and suffered a negative employment action as a result; this protection extends to other employees who may not have been the subject of the Title VII violation but report the violation and/or participates in the investigation;
Requirements for Title VII Protection
What are the requirements for harassment by a non-supervisor to give rise to a Title VII violation?
- Management must be aware of the harassment and failed to act
- This may also apply to non-employee violators such as contractor or guests
- Includes same-sex harassment; sexual orientation harasment
What is it called when online activities such as internet searches, emails, or sexually explicit images on the computer create a hostile work environment?
Online Harassment
What are the remedies available under Title VII?
- Reinstatement, backpay, retroactive promotion with backpay; and damages
- Compensatory damages are available with intentional discrimination
- Punitive damages only available with malice or reckless indifference for an individual’s rights
- Damages are capped depending on the size of the employer
What is probably the most widespread form of discrimination because it affects everyone regardless of race, color, gender, etc.?
Age Discrimination
What prohibits employment discrimination based upon age against employees over the age of 40; prohibits mandatory retirement for non-managerial workers as well as protection from retaliation upon age-related complaints; this applies to employers with 20 OR MORE EMPLOYEES and the business MUST AFFECT INTERSTATE COMMERCE; EEOC administers this but does allow private suits?
Age Discrimination in Employment Act (ADEA)
In age discrimination lawsuits, the employee has the burden to show what?
“But for” the employees age, the negative employment action would not have taken place
What must the employee do to establish their prima facie case under age discrimination?
- The employee is a member of the protected group
- The employee was qualified for the position in question
- The discharge / non-hiring was based upon age
What must the plaintiff show if the employer offers a good faith reason for the negative employment action in an age discrimination case?
Plaintiff must show that this reason is merely a pretext
What must the plaintiff prove in situations where the employer is looking to cut costs and save $ by laying off and terminating older, higher salary employees and replaced with younger, cheaper employees; in such situations it is not always clear if it is a sound business decision or discrimination?
- Plaintiff must prove the discharge was based upon age
- Plaintiff must show they were replaced by a “younger”; the greater the gap the better
Who are generally not covered by the ADEA (for private suits) because of state immunity under the 11th Amendment (also may be applicable to ADA and FLSA for private suits)?
State Employees
What prohibits discrimination based upon disability in all workplaces with 15 OR MORE EMPLOYEES/WORKERS; requires employers to make “reasonable accommodations” to employees with disabilities, unless the accommodation would cause an “undue hardship”?
Americans with Disabilities Act (ADA)
What must the plaintiff show to prevail in a suit under the ADA?
- He has a disability
- Is qualified for employment
- Was excluded solely from the position because of the disability
Just like with Title VII, a disabled individual must file with who before filing a private action; this group can investigate; issue a suit or allow a private suit; basically the same remedies as Title VII as well (reinstatement, backpay, etc.)
EEOC
Equal employment opprotunity commision
What is a physical or mental impairment that substantially limits on or more of the major life activities; have a record of having such an impairment; and being regarded as having such an impairment?
Disability
What also prevents employers from taking adverse employment action upon stereotypes or assumptions about individuals who associate with people with disabilities; can’t fire or refuse to hire a parent of a disabled child?
ADA
Employers are no longer allowed to consider what when determining whether an employee is disabled or has a disability; ex.) a person wearing glasses or having an insulin pump?
Mitigating Measures
What is it called where the ADA also requires medical documentation associated with a disability to be kept confidential; an employee may sue an employer who discloses confidential medical information even if the employee is not disabled; like with the FMLA, employers must train HR personnel on how to handle this and limit the # of individuals who have access to it (managers and supervisors should NEVER)?
Disclosure of Private Health Information
What are considered “major life activities” in terms of a disability?
Standing, sitting, seeing, breathing, walking, pulling, thinking, eating, concentrating, lifting, sleeping, hearing, and learning
What are considered “major bodily functions” in terms of a disability?
Immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, reproductive
What requires that an employee must be qualified to perform the essential functions of the position and with a reasonable accommodation must be able to perform those essential functions of the job?
ADA
What is the modification to the work environment or the way that work is performed that allows the employee to do the ESSENTIAL FUNCTIONS of the job or ACCESS TO BENEFITS/PRIVILEGES of others; ex.) handicap parking; ramps; flexible hours; software programs; lighting conditions?
Reasonable Accommodations
Employers who deny an accommodation must show that the requested accommodation placed a what on the employer; extremely difficult or expensive; determined on a case by case basis?
Undue Hardship
Employers must show disabled employees the same rights and benefits of other able body applicants when it comes to what process; applicants may be allowed to respond by email or phone for hearing or visually impaired?
Application Process
What are permissible if ALL potential applicants will be required to undergo a physical exam; if you put the requirement in the posting and they failed the physical, you are not required to offer?
Pre-Employment Physicals
What can’t exclude disabled employees from participating in them or place any special restrictions?
Health Insurance Plans
What is considered a disability; ADA and FMLA protect recovery but not users?
Substance Abuse (Drugs and Alcohol)
What prohibits discrimination against a person who served or is serving in the military (military is essentially a protected class); the act covers all employers; military plaintiffs can not only sue the employer but individual employees acting on behalf of the employer; vets can only be fired for cause?
USERRA
Uniformed Services Employment and Reemployment Rights Act
What must the plaintiff establish for a prima facie case for military discrimination
- Plaintiff must show that the employer took an adverse employment action based in party on his connection to the military
- Connection may be through membership, service, application for service, or speaking on behalf of others
- USERRA places a lot of duties and responsibilities for active and reserve service members (paid leave, job protection, etc)
Who may be entitled to promotions they would have attained had they not been absent for military service; this could include adjusting seniority, status, pay, and other rights and benefits (HI & pension); active duty is considered as if the service member was an active employee?
Returning Service Members
What is the 1st affirmative defense to employment discrimiation?
Plaintiff has failed to establish their prima facie case
- If the plaintiff can establish their prima facie case (discrimination), the burden shifts to the employer to defend the “discriminatory practice/action”
- Defense may be business necessity, qualification, or seniority system
What affirmative defense says if the operations of the business require certain requirements regardless of the discriminatory impact it may have on a protected class, then it may be permissible; the employer must show a definite need for the requirement and job performance impacting the business; ex.) requirement to lift 20 lbs; bilingual?
Business Necessity
What affirmative defense has been restricted to only apply to gender or religion (race, color, national origin cannot be used); says that this particular trait is a bona fide occupational qualification; ex.) hiring a woman in a woman’s clothing store?
Qualifications
What affirmative defense says that workers with more years of service are promoted first and laid off last; employers may be able to defend not having members of protected class in certain upper-level positions if the promotions were done in conformity with a fair seniority system; big issue with CBA and state employees?
Seniority System
What is evidence that is acquired after the alleging of discriminatory practices that have been alleged of the plaintiff’s misconduct; this is not a shield from liability for discriminatory purposes?
After-acquired evidence of employee misconduct
What attempt to “make up” for past discrimination by giving members of a protected class preferential treatment in the hiring or promotion process; Title VII neither requires not prevents these programs; they are highly controversial because they may result in reverse discrimination?
Affirmative Action Programs
What may in fact violate the Equal Protection Clause under the 14th Amendment; any governmental policy based upon racial or ethnic classification will be held to strict scrutiny (the highest standard)?
Affirmative Action Programs
To meet Constitutional Standards, AA programs must attempt to what?
- Remedy Past Discrimination
- Does not make use of Quotas or preferences
- If the goals have been achieved, program must be eliminated
Who are free to enact legislative bans with respect to AA programs at public institutions within their states?
States
Selena signs a power of attorney appointing Kim, for the sole purpose of signing paperwork on her behalf that relates to the sale of her house. The power of attorney will automatically terminate based on:
The purpose being acheived
Whitney works at home making unique children’s clothes. Liam buys Whitney’s clothes to sell in his store. With respect to Whitney’s legal relationship to Liam, she is probably:
An Independent Contractor
Napoleon owns Napoleon’s Construction and agrees to renovate Mrs. Cernan’s bathroom. She will provide him with the plans, and then he will do the work in the manner that he determines is most cost effective and appropriate. Napoleon is likely to be classified as:
An Independent Contractor
Lizzie works for Gary in his dance supply shop and is authorized to sell inventory but not to order new merchandise. Rena, a sales representative for a new line of dancewear, comes into the store and Lizzie places an order with her. When Gary learns the details of Lizzie’s purchase, he wants to ratify the contract. The conditions that are necessary for ratification are:
- Gary must know all the material facts about the transaction
- Rena and Gary must have legal capacity to engage in the transaction
- Gary must affirm Lizzie’s order in its entirety
Sarah has to move from the East Coast to the West Coast for her job. Elmo agrees to act as Sarah’s agent to sell her New York condo. As her agent, Elmo owes Sarah all of the following duties:
- Notification
- Loyalty
- Performance
Dean is not Paul’s agent, but Paul tells Charlie that Dean has always been a good friend and can “handle any of my business affairs.” If Dean were to later enter into a contract with Charlie on Paul’s behalf, Dean would be acting under an:
Apparent Authority
Jason instructs his agent Miguel to obtain a piece of artwork from Martina by threatening to beat her if she refuses to sell the artwork. Miguel follows Jason’s instruction and beats Martina when she refuses to sell the item. In this situation:
Both Jason and Miguel are liable for Martina’s injuries
Charlie tells Jamal that Marisol has agreed to allow him to sell her racing bicycle. Marisol is present at the time, hears the conversation and says nothing. Jamal agrees with Charlie to buy Marisol’s bike. Marisol then refuses to sell the bicycle. Marisol claims that she is not bound by the agreement formed by Charlie and Jamal, because Charlie is not her agent. Marisol likely is:
Bound the the contract under a theory of agency by estoppel
Yakov hires Melina to be his Vice President for Marketing. The job description is pretty broad but does not include the ability to hire or terminate lower level employees in the Marketing division. If Melina has this power, it is based on her:
Implied Authority
Gina buys a piece of pottery from Woodward for her principal, Kelvin. If Woodward knows that Gina is buying the pottery on behalf of someone other than herself but does not know the identity of that person, Kelvin is:
A Partially Disclosed Principal
Erin works for a dry-cleaning company that has a contract with the U.S. government. To save on cleaning fluid, her boss orders her to wash some dry clean-only clothes in a washing machine. When the courier hired to pick up the cleaned garments arrives, Erin tells him about her boss’s actions. Erin tells no one else about what is going on and is later fired. Erin:
Is not protected by the Federal whistleblower statute, because she failed to inform the property party of the contract violation
When the timber industry in Montana experiences an economic slump, Superior Logging Co. is forced to lay off a number of its employees, including Larry Kurzyniec. Larry, who had been logging for over eighteen years, suffers from heart disease, high blood pressure, and diabetes. His wife is worried that the family’s health-insurance coverage, which is through Superior Logging, will be canceled. Larry learns that he has a right to extend his insurance benefits, however, if he pays the premiums under:
COBRA
Byron works at Stitch-Rite Clothing Factory. The company is required to maintain safe working conditions under the:
Occupational Safety and Health Act (OSHA)
Adam owns a private company and has significant concerns about employees shopping and accessing pornography while at work, so he buys some filtering software that blocks shopping and pornography websites. Adam:
is within his rights to do this
When Kimberly begins working for Pharmco Industries, the company tells her that at a future date, after so many years of employment with the company, she can receive retirement pay. Her rights on that date to receive pay upon retirement would be considered:
Vested
Catherine works for BluCorp, which has an employee handbook stating that employees will be terminated for good cause. Catherine’s manager fires her one morning and when asked the reason, states that he does not need a reason since they live in a state that has employment at will. If Catherine wins her lawsuit against BluCorp, it is because of the:
Contract exception to employment at will
Choice is the largest employer in the Pacific Northwest. It is covered by numerous federal employment laws. As such, it is required by the Family and Medical Leave Act of 1993 to provide employees with up to
12 weeks of unpaid family or medical leave during any 12 month period
Ashley is an eighteen-year-old clerk in a store that sells bird seed. She earns minimum wage. Her boss, Trina, often expects her to stay and work as many as three hours longer than her scheduled shift. Trina never pays Ashley for these hours. Ashley is:
Entitled not only to be paid for the additional time, but also to be paid overtime if she works more than 40 hours in a week
Josh works for a federal governmental agency that requires drug testing as a condition of employment. He wants to challenge the constitutionality of the testing in court. For his case, Josh will attempt to rely on:
The 4th Amendment
Michael creates a new company and wants to attract quality employees, so he establishes a retirement plan. The law regulating this activity is:
ERISA
Julio lives in an area with a high percentage of Hispanic workers. Many of these workers are legal immigrants who have relatively little college training. If, when Julio applies for his job, he is given an examination designed for a college graduate, and if he and most Hispanic applicants fail to pass the test, the employer:
Might be engaged in disparate-impact discrimination
James was a thirty-eight-year-old man in good health. One of his hands shook slightly for no apparent reason. The doctors could not find a medical cause for it. James’s employer worried about the potential for early-onset Parkinson’s disease or another neurological disorder, so he fired James. Under the ADA:
James can bring a claim as being “regarded” as having a disability
Byron runs a business cleaning gutters. Lance, who is in a wheelchair, applies for a job working for Byron as a cleaner. Byron does not hire Lance and is very frank about the reason: Lance’s disability. If Lance sues Byron,
Byron will win, if he can show that being able to climb a ladder is a requirement of the position
Rheingold Supply has a seniority system by which employees who have worked the longest are first in line for promotions and last to be laid off. As a result, most of the senior managers at Rheingold Supply are men. If Jane files a claim of illegal discrimination, Rheingold Supply:
will have a legitimate defense, because Rheingold Supply has a seniority system in place
Eastminster Presbyterian Church has an opening for a new head pastor. Mohammed, who is a Muslim, applies for the job. The church declines to hire him and continues to look for other applicants. If Mohammed files a claim of illegal discrimination against the church, the church:
may assert a bona fide occupational qualification (BFOQ) defense
Kurt is 52 years old and, until recently, worked for a company covered by the Age Discrimination in Employment Act (ADEA) of 1967. He wants to bring a claim of age discrimination against his employer, because he was replaced by a younger, lower-paid worker. To make out a prima facie case of age discrimination, Kurt does not have to establish that he:
was replaced by someone who is younger than 40 years old
Required to show:
- is a member of the protected age group
- was qualified for the job he lost
- was discharged in a way that creates an inference of discrimination
Carl tells Jenny that he will give her a raise if she agrees to have a romantic relationship with him. In legal terms, this is known as:
Quid Pro Quo Harassment
Min applies for a job as a receptionist at an accounting firm. If she is denied a job because she is of Asian origin, she may be a victim of:
Disparate-treatment discrimination
Melanie and Beau both work in comparable jobs at Technology Impact, Inc. Melanie is paid 15 percent less than Beau. Which of the following is a legitimate defense to this pay inequality?
- The company pays according to production, and Beau produces more
- The company has a seniority system, and Beau has been with the company longer than Melanie
- The company has a merit system in place, and Beau has performed better at his job than Melanie has at hers
Norm worked as a sales person for his firm. When he turned fifty, the office had a party for him. His boss made a lot of jokes about Norm getting too old to keep up with the younger staff. Those comments continued past the party for several months. Norm was fired six months later. When he filed a complaint for age discrimination, the boss defended his actions by saying Norm was fired for not meeting sales quotas. Norm had missed his quota for only one month, and he provided evidence that younger employees who had missed up to three months of the quotas were not terminated. Norm is attempting to show that:
The employer’s defense was a pretext
Emily, an employee of Farm Supplies, Inc, files a suit against her employer, alleging sexual harassment by her supervisor Gowan. The employer may be liable it it had effective harassment policies and complaint procedures that were followed by:
Emily
Holly files an employment discrimination suit against Industrial Inc. under Title VII of the Civil Rights Act on a disparate-impact theory. To succeed, Holly must show in part that she was adversely affected by the employer’s
Practices
Lucia is married to Marco. Lucia buys food for their children’s lunches and charges the costs to Marco’s account. This is an agency by
Operation of Law
Rene is a delivery driver for the Sicilian Pasta Company. Rene does exactly what the company tells her. Rene is
An Employee
Health Clinic Inc. has no written employment manual or oral discharge policy, avoids abusive treatment of its staff, and acts to prevent illegal and unsafe activities. The clinic freely hires and fires its employees, who are similarly free to quit at any time. With respect to the employment-at-will doctrine, this is
An Example of this doctrine
How many employees does an employer have to have to be covered by USERRA?
No minimum employees (applies to every employer)
How many employees does an employer have to have to be covered by FLSA?
Covers all employers engaged in interstate commerce or in producing goods for interstate commerce (technically 2 or more employees too according to Google)
How many employees does an employer have to have to be covered by OSHA?
11 or more employees
How many employees does an employer have to have to be covered by ADA?
15 or more employees
How many employees does an employer have to have to be covered by Title VII of the Civil Rights Act?
15 or more employees
How many employees does an employer have to have to be covered by ADEA?
20 or more employees and the business must affect interstate commerce
How many employees does an employer have to have to be covered by COBRA?
20 or more employees
How many employees does an employer have to have to be covered by FMLA?
50 or more employees
How many employees does an employer have to have to be covered by ACA?
50 or more employees
How many employees does an employer have to have to be covered by WARN Act?
100 full time employees
