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51 Cards in this Set

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  • Back
What is an employee?
they are those who as a matter of economic reality are dependent upon the business to which they render service
What are the six criteria used in determing a employment relationship?
1. the nature and degree of the alleged employers control as to the manner in which the work is to be performed
2. the alleged employees opportunity for profit or loss depending upon his managerial skill
3. the alleged employees investment in equipment or materials required for his task, or his employment of workers
4. whether the service rendered requires a special skill
5. the degree of permanency and duration of the working relationship
6. the extent to which the service rendered is an integral part of the alleged employer's business
What is the largest day to day consequence in regards to employee/independent contractors?
For employees, the employer must withhold federl and state income taxes, pay the FUTA (unemployment tax) pay the employers portion and withhold the employees portion of FICA and pay state unemployment taxes and workers compensation premiums. For independent contractors, a person in a trade or business must file a form 1099 to report compensation in excess of $600.00 to a non employee. The business does not have to pay or withold any taxes, because the independent contractor is responsible for them
What is an indpendent contractor?
one who is hired to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it.
Are partners in a business considered employee's?
no, partners are considered employers rather than employees and therefore generally unprotected by employment laws
Are Volunteers considered employees?
no, because they are not compensated for their work.
If a worker is clearly an employee rather than an independent contractor, may he or she still not be subject to the protections of a particular employment law?
yes, employment statutes often exempt part-time workers, homeworkers, leased workers, or other so-called "contingent" workers.
What are the two different types of arbitration?
1. interest arbitration
2. grievance arbitration
what is interest arbitration?
when an arbitrator establishes rights or terms between parties who cannot agree by themselves. It is highly unusual in the american private sector
what is grievance arbitration?
here a prior statute or collective bargaining agreement, rather than an arbitrator, has set the rights or terms, but the parties cannot agree how they should apply in a particular situation. An impartial arbitrator interprets how the statute or collective bargaining agreement should be applied. This has a long history in unionized employment.
what are the four factors for vacating an arbitration award?
Section 10 of the federal Arbitration act states
(a) in any of the followng cases the united states court in and for the district wherein the aard was made may make an order vacating the award upon the application of any party to the arbitration-
1. where the award was procured by corruption, fraud, or undue means
2. where there was evident partiality or corruption in the arbitratiors, or either of them
3. where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause sho, or in refusing to hear evidence pertinent and material to the controversey
4. where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made
may an arbitrators award be overturned for violating public policy?
yes, see state v AFSCME 758 A.2d 387
what is the presumption of employment at will?
Unless the parties state otherwise, the employer can discharge the employee for a good reason, bad reason, or no reason at all
What are the two basic methods the court uses for filling in contractual gaps?
first, courts can attempt to determine how the parties would have decided the issue had they focused on the question otherwise known as "mimicking the market"
Second, attempts are made to create a default rule whereby the parties are encouraged to reveal their true valuations.
What is a moral hazard problem for an employer?
when an employee is absolutely protected from discharge regarless of his behavior, he is often not likely to work hard and honestly
what is quid pro quo?
Relates to sexual discrimination. these are those in which the harrassment has resulted in a tangible employment action, that is one in which there has been a signigicant change in employment status, such as hiring, firing, failing to promite, reassignment with significantly different responsibilities or a decisiion causing a significatnt change in benefits
what is a hostile environment?
relates to harrassment, there is no tangible employment action, but the harassing conduct has been sufficiently sever or pervasiv to alter the working environment
what is the distinction between the two types of sexual harrassment quid pro puo and hostile enviornment?
first, employers are always liable for quid pro quo discrimination, but not for hostile environment discrimination. Second, the requirement that the harrassment be "sever or pervasive" applys only in hostile environment cases.
May an employer be subject to vicarious liability to a victimized employee for an actionable hostile environmet created by a supervisor with immedicate or successively higher authority over the employee?
when no tangible employment action is taken, may the employer raise an affirmative defense?
what are the two elements of an affirmative devense to liability or damages?
1. the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior 2. the plaintiff employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Does the ADEA bar an employer from discriminating against any individual in the "compensation, terms, conditions, or privileges of employment, because of such individuals age?
Under the ADEA, is an employer also barred from discriminating in reference to all employee benefits and benefit plans?
Discrimination remedies can be thought of as mechanisms for shifting losses from injured parties to parties legally responsible for the losses. For this loss-shifting model to apply what must one show?
1. identitify the injured party
2. isolate and quantify the loss
3. identify the resposible party to whom the loss should be shifted.
What are the four classic fact patterns where curts have upheld lawsuits for wrongful discharge in violation of public policy?
1. refusing to commit unlawful acts
2. exercising a statutory right
3. fulfilling a public obligation
4. whistleblowing
what are the requirements for retalitory discharge?
the employer discharge the employee in retatliation for the employee's activities, and that the discharge be in contravention of a clearly mandated public policy
What is good faith?
a state of mind consisting in (1) honesty in belief or purpose (2) faithfulness to one's duty or obligation (3) observance of reasonable commercial standars of fair dealing in a given trade or business or (4) absence of intent to defraud or to see unconscionable advantage
In california, are covenants not to compete enforced?
What is at will employment?
either party can end the relationship at any time with or without any reason. This is the default rule in california
What is just cause?
an employer cant just fire a person for any reason, there has to be something more
If the parties to an employment relationship set a beginning and ending date, is this an at will employment?
no, it move to be just cause because of the specific time frames of the employment relationship
When an party has given extra consideration, will the court recognize that something other than an at will contract has been created?
Is the issue of just cause a decision for the judge or jury?
What is california labor code section 2922?
an employment, having no specified term, may be terminated at the will or either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.
what is Ca Labor Code Section 2924?
an employment for a specified term may be terminated at any time by the employer in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.
What is Ca labor code section 2925?
an employment for a specified term may be terminated by the employee at any time in case of any wilful or permanent breach of the obligations of his employer to him as an employee.
What type of damages are available to an employer sueing an employee for quiting early in a fixed term contract?
expectancy damages
Is economic downturn an excuse for a fixed term contract?
Generally, at will and just cause are default rules, can an employer and an employee agree to a higher standards?
Generally, can public employees only be fired for just cause?
Generally, if an employee is a member of a union, can they only be fired for just cause?
yes, typically this is a negociated term in the collective bargaining agreement between the union and the employer
Does the doctrine of prmissory estoppel apply to employment law?
What are some of the factors looked at in regards to whether or not there exists an implied-in-fact promise for some form of continued employment?
1. ther personnel policies or practices of the employer
2. the employees logevity of services
3. actions or communications by the employer reflecting assurances of continued employment
4. practices of the industry in which the employee is engaged.
In regards to just cause, does this mean the termination must have occured in good faith?
What are the four types of wrongful discharge cases?
1. refusing to commit an unlawful act
2. exercising a statutory right
3. fulflling a public obligation
4. whistleblowing
In california, may an employee be protected if they are complaining internally?
yes, outside of california, they would not be.
What is minimum wage?
it sets a level below which ages cannot fall.
what is the FLSA?
Fair Labor Standard Act it has three principal substantive obligations.
1. it sets a minimum wage
2. the act requires premium pay for overtime work
3. restricts the ability of employers to employ children
What is the Mavis-Bacon Act?
applies to contracts in excess of $2000.00 for work on federal buildings or other public works. Requires the contracting entity to pay workers at least the prevailing wage in the locality
Pursuantto 29 usc section 207 what are the seven categories of employer payments not to be taken into consideration in determining what an employees regular rate of pay is?
implicit therein is that the extra compensation decribed in subsectons (1), (2), and (3) and (4) is not to be creditedtowards overtime payments required by the act
what are fringe benefits?
paid vacations, holiday pay, bonues, health insurance accident insuance