Structuring Your Workforce & Avoiding Discrimination Flashcards
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.
4 ways to form an agency agreement
By Agreement (express or implied) – aka Actual Agency
By ex post ratification by principal (“P” subsequently affirm “A”s act, even though originally unauthorized)
By operation of Law (certain family relationships & emergencies)
By estoppel – aka Apparent agency
What is apparent agency?
But, be careful about “apparent agency” where P can be liable to 3rd party for an apparent agent’s acts:
If P causes 3rd person to reasonably believe that another person is the P’s agent (even though she is not), and the 3rd party reasonably relies to their detriment on that appearance (e.g., agreeing to sell widgets to A), then P cannot deny the agency agreement (i.e., estoppel).
Think: Did P act as if person was Agent? Did “P” allow the “agent” to use the P’s logo/uniform/email? Did P fail to notify 3rd parties of A’s termination?
Vicarious liability for apparent agent’s acts most common in contract setting.
Employee vs. Independent Contractor
- First, have a written contract between Employer and Worker that expressly specifies the worker’s status.
- Be clear to specify parties’ intent (some workers want to be IC’s)
- Be sure to specify worker’s duties & explain whether the worker has autonomy in performance
- Be sure to specify worker’s obligation to provide own insurance and pay own taxes/benefits, etc.
- But, label given by parties in K doesn’t always control. Courts & IRS will investigate all facts & circumstances.
- Main distinction between Employee (“EE”) and IC under common law in most jurisdictions:
- Key is whether the hiring party controls or has right to control hired person’s conduct in performance of their duties (i.e., the means and manner of the worker’s performance). Not whether employer exercised its control in actuality.
- IRS and courts in most states will also consider :○ Whether worker can be fired “at will” without recourse, rather than per the terms of the K (tends to be EE)○ If worker is in separate occupation from Employer (if so, leans IC)○ If workers job is integral part of employer’s core business (if so, tends to be EE).○ If worker offers services to public at large, not just 1 business (if so, leans IC)○ Duration of work (longer tends to be EE)○ If worker is specially skilled (tends to be IC)○ If employer provides training (tends to be EE)○ Form of payment (Payment per job tends to be IC, per hour/year tends to be EE)○ Benefits provided (If vacation days, sick leave or benefits given, tends to be EE)○ Provision of tools (If provided by worker, tends to be IC)
Worker’s dependence on employer (if dependent, tends to be EE)
Tort Liability = ?
- 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.”
- Principal can be directly liable for her own torts when she uses an agent wrongfully (e.g., authorized torts, negligent entrustment, etc.).
- Sometimes P may be held vicariously liable for the torts of A
- See Respondeat Superior.
In some cases, agent may be liable to reimburse principal for triggering vicarious liability if conduct unauthorized.
Respondeat Superior = ?
When is it in scope?
P’s Liability for A’s Negligence:
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)
Note: merely having a corporate policy against the A’s wrongful actions is often insufficient to guard against liability. Do training, get insurance.
P’s Liability for Employee’s Intentional Torts
Employers usually not liable for intentional torts committed by employees (or ICs), especially if there’s no relation to work.
Though, employers will almost ALWAYS be sued anyway for EE’s bad act.
But, employer will be liable for employee’s intentional torts, if:
If tort relates to employee’s work and intended by employer (e.g., bouncers)
If employee is essentially alter ego of company (tiny co. CEO)
Employee’s bad act resulted from employer’s negligence/recklessness
If the employer was aware of, and fails to stop, employee’s reckless or dangerous actions (e.g., smoking in a gas station)
Employee was aided in their wrongdoing by having apparent agency (e.g., City liable for cop rape because cop used uniform & patrol car)
THIS IS ALSO WHY EMPLOYERS BUY INSURANCE
Employer’s Liability for Independent Contractor’s Torts
Employers generally not liable for independent contractor’s torts because they have no right to control the IC’s behavior.
So, Respondeat Superior usually does not apply to IC’s.
EXCEPT Employer may face direct liability, if:
Negligent Hiring/Entrustment
In these cases, the wrongdoing is actually the P’s fault because they hired an unqualified fool.
Inherently Dangerous Activities
E.g., P hires IC’s to conduct explosions near a school. P liable.
Certain Non-delegable duties
E.g., hospital can be liable for wrongdoing by IC surgeons.
FLSA & FMLA
- Federal Fair Labor Standards Act
- Covers all employers engaged in interstate commerce
- Regulates Child Labor, Minimum Wage, Overtime
- Minimum Wage: employees in certain industries must be paid a federal minimum wage $7.25 (unless the State minimum wage is higher. In CO, it’s now $12.56). Those who get tips can receive less.
- Overtime: Any non-exempt employee working more than 40 hours/week must be paid 1.5 times her regular pay for all hours over 40 (“time and a half”). But, no overtime required for “exempt” employees: Executives (whose primary duty must really be management) & Certain professionals
- Federal Family & Medical Leave Act
- 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.
CO Prop 118 passed (2020), providing most CO EE’s with up to 12 weeks of partial pay & job security during family/medical absences from work, (& 4 more weeks of paid leave for serious pregnancy/childbirth conditions)
Employment Discrimination big take away
Under ADA, employers must provide reasonable accommodation upon employee’s request, unless doing so would cause employer “undue hardship.”
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.
“Disparate Impact” Discrimination
- 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)
Employer Defenses to Title VII Discrimination
- 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.○ Racial preference is never a business necessity.○ Customer preferences do not warrant application either.○ But language skills might be, for certain customer-facing jobs.○ Strength might be, for certain heavy-lifting jobs.
- Prepare the job description carefully.
- Employee Misconduct
Paper up!
