Module 5-structuring workforce and avoiding discrimination

Question 1

Agency Law

Answer 1

 Agency law is vital to understanding and limiting contractual legal exposure.
 Agent – person who agrees to represent or act on behalf of a Principal and subject to their control. A becomes
fiduciary to P because relationship involves position of trust: care, loyalty, obedience, notification and
separate accounting for P’s funds.
 Principal – The person on whose behalf the agent works in respect of 3rd parties.

Question 2

Employee vs independent contractor

Answer 2

 EE’s tend to be more expensive than ICs
 Many employment laws (benefits and labor protections) only apply to employees.
 Employer must generally pay minimum wage, overtime, workers compensation insurance, unemployment insurance taxes, health insurance, payroll taxes, SS and Medicare taxes for EE’s but not IC’s
 EE’s tend to be more risky than IC’s because EE’s are almost always deemed to be “agents” of the Employer, while IC’s are usually not.
 Employer is usually liable for torts to 3rd parties committed by EE’s (RESPONDEAT SUPERIOR = Master liable for torts of Servant committed in Servant’s scope of employment & motivated in part to benefit Master)
 Employer is usually NOT liable for torts to 3rd parties committed by IC’

Question 3

Tort liability

Answer 3

 Principal and Agent are each individually liable for their own torts (civil
harms) to 3rd parties.
 However, under common law, agents may have a right to
indemnification from principal for authorized acts taken in “scope of
employment.

Question 4

Prinicipal liability for Agents authorized torts

Answer 4

 P may be liable to foreseeable persons injured
by A’s torts, if Principal authorizes A’s
tortious conduct
 E.g., Tony Soprano tells Furio to go break a guy’s
kneecaps. Furio is liable. So is Tony.
 E.g., Homeowner tells landscaper crew to mow the
lawn into the boundaries of neighbor’s home,
homeowner liable for trespass.

Question 5

principal liability for agencys negligence

Answer 5

 Respondeat Superior: P is vicariously liable for A’s negligent
torts if A was “acting within the scope of his employment, and
motivated in part to benefit P”.
 But, when is it within the “scope of employment”?
 At work
 On the job
 During business hours
 But also “detours” (short and generally work-related deviations)
 Not “frolics” (big deviations for personal business)

Question 6

Employers Liability for Independnt Contractor Torts

Answer 6

 Employers generally not liable for independent
contractor’s torts because they have no right to control the
IC’s behavior.

Question 7

Employment at will doctrine

Answer 7

 Either party may terminate the employment relationship at any time for any reason, unless doing so would violate an employment contract or statute

Question 8

Federal fair labor standards act

Answer 8

 Federal Fair Labor Standards Act
 Covers all employers engaged in interstate commerce
 Regulates Child Labor, Minimum Wage, Overtime

Question 9

Federal family and medical leave act

Answer 9

 Applies to employers with 50+ employees. Covers private and public employees w/ 1250 hours within one year.
 Requires employer to provide up to 12 weeks of unpaid leave in certain situations, including: (1) Newborn baby,
adoption, foster child; (2) Illness of self, spouse, child, or parent
 Employer generally must: (1) Continue health-care coverage; (2) Restore employee to original or comparable position
 Violations may result in: (1) Damages for lost wages, benefits and losses (i.e., cost of caregiver); (2) Obligation to
reinstate/promote; (3) Double-damages, if bad faith.

Question 10

Americans with Disabilities Act

Answer 10

generally bars employers from intentionally
discriminating against, or having employment practices that have the effect of discriminating against, otherwise qualified individuals because they have a “physical or mental impairment” (broadly defined) that substantially limits a major life activity (loosely defined). Under ADA, employers must provide reasonable accommodation upon employee’s request, unless doing so would cause employer “undue hardship.”

Question 11

Title VII of Civil rights act

Answer 11

 Prohibits employers with 15+ employees from engaging in:
 Intentional Discrimination (Disparate Treatment) – failing or refusing to hire, or firing, or discriminating in promotion or compensation because of individual’s race, color, religion, sex or national origin.
 Unintentional Discrimination (Disparate Impact) – limiting, segregating or classifying employees or applicants in way that would deprive or tend to deprive any individual of employment or adversely affect his status as employee because of individual’s race, color, religion, sex or national origin.
 Under Title VII, Employers have duty to “reasonably accommodate” religious practice if they can do so “without undue hardship.”
 Victims of Title VII discrimination must usually first file a claim with the Equal Opportunity Employment Commission (EEOC)

Question 12

“Disparate Impact” Discrimination

Answer 12

 Involves situations where employer hiring criteria has unintended discriminatory impact on protected class.
 e.g., requiring all applicants to have high school diploma, which tended to screen out vastly more minorities
 Victim must show:
 Employers’ procedures/practices have statistically significant discriminatory effect.
 Causal link between practice and discriminatory effect.
 Compare demographics of employers’ workforce to pool of qualified applicants in the local market.
 Compare hiring rate between protected class and non-protected class.
 Employer must then show that the hiring practices were justified (e.g., practice/qualification is job related for the position in question and consistent with business necessity)

Question 13

Employer Defenses to Title VII Discrimination

Answer 13

 Bona Fide Occupational Qualification (as defense to disparate treatment claims)
 E.g., male models only for men’s clothes; teachers in Catholic School be Catholic;
RACE IS NEVER BFOQ)

 Business Necessity (as defense to disparate impact claims)
 Plaintiff must be unable to perform “essential function” of the job or must pose
significant risk to health/safety of others.

 Employee Misconduct
 Paper up!