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38 Cards in this Set
- Front
- Back
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Define 'Principal'.
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Principals hire agents to do tasks and represent them in transactions.
Primarily the employer. a principal interacts with someone (or some organization) for the purpose of obtaining that second party’s assistance (agent). |
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Define 'Agent'.
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The agent, on behalf of the principal, interacts with a third party. The legal purpose of the agent is to create a binding relationship between the principal and third party.
someone who works for you and can work for someone else. EX: Landscaping, construction, accountants. |
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Define 'Independent Contractor'.
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an agent. Principals do not directly control independent contractors and independent contractors generally work for more than one principal.
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List the duties of an agent.
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Agent, on the behalf of the principal, interacts with a third party.
o Agent duty: • Duty of loyalty to act for the principal’s advantage and not to act to benefit the agent at the principal’s expense. • Duty to keep the principal fully informed. • A duty to obey instructions • A duty to account to the principal for monies handled. |
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Define 'Respondeat Superior'
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“let the master reply”
• An agent who causes harm to a third party may create legal liability owed by the principal to the third party. |
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What is the defense to 'Respondeat Superior'?
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o Remember, only defense: frolic and detour.
o Determined on whether or not the agent was acting within the scope of employment when the tort occurred. • Any time employee is liable for tortuous acts in the scope of employment, employer is also liable (rspondeat superior) |
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True or False:
• Partners are liable for all transactions entered into by any partner in the scope of the partnership business and are similarly liable for any partner’s torts committed while she or he is acting in the course of the firm’s business. |
True.
• Each partner is both agent of partnership and a principal, being capable of creating both contract and tort liability for the firm and for copartners and likewise being responsible for acts of copartners. |
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List and define the different types of authority that will create a contractual liability.
AEIA |
1) Actual Authority
2) Expressed Written Authority 3) Implied Authority 4) Apparent Authority |
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Define 'Principal'.
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Principals hire agents to do tasks and represent them in transactions.
Primarily the employer. a principal interacts with someone (or some organization) for the purpose of obtaining that second party’s assistance (agent). |
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Define 'Agent'.
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The agent, on behalf of the principal, interacts with a third party. The legal purpose of the agent is to create a binding relationship between the principal and third party.
someone who works for you and can work for someone else. EX: Landscaping, construction, accountants. |
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Define 'Independent Contractor'.
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an agent. Principals do not directly control independent contractors and independent contractors generally work for more than one principal.
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Define 'Ratification'
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occurs when a principal voluntarily decides to honor an agreement.
o Occurs when a principal voluntarily decides to honor an agreement, which otherwise would not be binding due to an agent’s lack of authority. |
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What does the situation describe?
o EX: if Alex had no authority to bind the restaurant to a contract to purchase $100,000 worth of kitchen equipment, but the principal realizes this is a good deal, and accepts the deal. What has occurred? The principal did what? |
Ratified the contract.
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List the duties of an agent.
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Agent, on the behalf of the principal, interacts with a third party.
o Agent duty: • Duty of loyalty to act for the principal’s advantage and not to act to benefit the agent at the principal’s expense. • Duty to keep the principal fully informed. • A duty to obey instructions • A duty to account to the principal for monies handled. |
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Define 'Respondeat Superior'
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“let the master reply”
• An agent who causes harm to a third party may create legal liability owed by the principal to the third party. |
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What is the defense to 'Respondeat Superior'?
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o Remember, only defense: frolic and detour.
o Determined on whether or not the agent was acting within the scope of employment when the tort occurred. • Any time employee is liable for tortuous acts in the scope of employment, employer is also liable (rspondeat superior) |
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List and define the different types of authority that will create a contractual liability.
AEIA |
1) Actual Authority
2) Expressed Written Authority 3) Implied Authority 4) Apparent Authority |
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Define 'Actual Authority'
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Specific instructions, whether spoken or written, given by an employer to an employee create actual liability.
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Is this an example of actual, expressed, implied, or apparent authority?
o As an owner, telling your manager to run to the store and buy $100 of coffee. You give him a note to be given to the store owner asking that he allow your manager to charge that amount onto his account. If store owner agrees, the restaurant is contractually liable. |
Actual.
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Define 'Implied Authority'
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Implied authority arises from the position he holds as manager and the history of express authority situations.
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Is this an example of actual, expressed, implied, or apparent authority?
As the owner, you are out of town, leaving your manager to work the store. He realizes he is short on tuna and must go back to the store and charge $60. Once you receive a bill from the store owner, you must legally pay it. Your manager’s actions legally bound your restaurant to the store. |
Implied.
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Define 'Apparent Authority'
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Don’t fail to notify third parties if an agent no longer works for you; this notice is essential to cut off apparent authority.
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Is this an example of actual, expressed, implied, or apparent authority?
o You decide to fire your manager, and out of anger, he goes to the store and charges a variety of groceries consistent with the food your restaurant uses. You become liable for the bill even though manager lacks actual (expressed or implied) authority, your failure to notify the store of alex’s termination left alex with this type of authority. |
Apparent authority
Reasonable assumption that restaurant manager was simply properly charging items to the restaurant’s account. |
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Define 'Fair Labor Standards Act'
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requires employers:
- to pay minimum wage ($7.25/hr effective 7.24.09 / currently $6.55/hr) - to pay overtime for hours worked in excess of 40 hours - overtime pay must be 1:2 time pay (time and a half) • Provides hourly minimum wage and maximum number of hours before overtime is owed. • Establishes a minimum wage, overtime pay, record-keeping requirements, and child labor standards. o Sets 14 years of age as the minimum age for employment, and limits the number of hours worked by minors under the age of 16. |
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What are the penalties against employers who violate child labor laws?
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$50,000 for each FLSA violation leading to the serious injury or death of a child worker
Fines are subject to doubling for repeated or willful violations. |
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Define the WARN Act. What is its purpose?
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- Provides restrictions on plan closing and mass layoffs.
- If you are closing a plant, and have more than 100 employees, you must give at least 60 days notice. - Allows impacted employees and communities some time to prepare for the negative impact of a plant closing or mass layoff. |
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List the penalties for failure to comply with the WARN notice.
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- Penalty for failure to comply with the WARN notice is back pay to employees to employees to cover the required 60-day period. Each day of the 60-day period that an employer fails to provide written notice to the local government can result in a $500 fine.
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What is the FMLA?
List the qualifications. |
Family Medical Leave Act
Applies to employers who have 50 or more employees for each working day of 20 or more calendar weeks during the current or proceeding year Eligible employees have worked for the employer at least 12 months and at least 1,250 hours during the preceding 12 months • Provides unpaid leave to care for a newborn child, an adopted child, to care for a family member, or for serious health conditions. |
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What are the benefits you receive under the FMLA?
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Up to 12 weeks of unpaid leave during any 12-month (can be non-consecutive) period for
- birth or care for a newborn child of the employee - placement with employee of a son or daughter for adoption or foster care - care of an immediate family member with a serious health condition (not inlaws) - employee is unable to work due to a serious health condition Both mothers and fathers are entitled to leave time |
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True or False: Once FMLA leave is granted, the employer has the discretion to keep the job open or closed until the leave is up.
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False: Once FMLA leave is granted, the employer must keep the job open until the leave is up.
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What is OSHA?
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Occupational Safety and Health Administration.
- has jurisdiction over complaints about hazardous conditions in the workplace - Employers must comply with OSHA standards to furnish a workplace free from recognized hazards -Employees have the right to request an OSHA inspection if they believe that there are unsafe and unhealthful conditions in the workplace |
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True or False - OSHA provides employees with a private cause of action.
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False; does not provide employees with a private cause of action
• Can’t go to federal court and file a lawsuit. OSHA comes in and investigates. |
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Define 'Limitations of employment at will'
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Defined: a hiring for an indefinite period of time
Unless an employee has a contract for a definite period of time (e.g. 1 year), employers are able to discharge them without cause at any time |
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Name three types of employer behaviors that are generally deemed to be against public policy and, therefore, are not allowed even if it is an employment-at-will state:
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- Discharge of an employee for performance of an important public obligation.
- Discharge of an employee for reporting employer’s alleged violations of law. - Discharge of an employee for exercising statutory rights. |
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Define 'Employee Polygraph Protection Act of 1988'
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- in general employers cannot use polygraph exams to screen applicants
- current employees may be tested as the result of a specific incident - if the employer is a private security company or a seller of controlled substances, they the company may test applicants and current employees |
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Yay or Nay: Are you exempt from drug testing at private companies?
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Nay; No uniform drug testing laws; many private companies have testing.
Public employees are protected by the 4th amendment from unreasonable searches and seizures. Drug test is generally reasonable in the US if there is a suspicion that an employee is using illegal drugs. |
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How can employers protect themselves and defend against lawsuits.
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- “Paper fortress” documenting job descriptions, personnel manuals, and employee files
- regular written evaluations, a chronological record of any unsatisfactory work, written warnings re: violated rules - Gives reason to defend against an employees claims that they were filed for racial/gender discrimination. |
