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117 Cards in this Set
- Front
- Back
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At Will employee
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An employee that does not have an employment contract
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Wrongful Discharge
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The discharge of an employee in violation of a statute, employment contract or public policy, or tortiously
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Workers comp benefits
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- Vary by state
- Are paid according to preset limits established by statute or regluation. |
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Worker's comp Insurance
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Usually required by states, also required to self insure by making payments into a contingency fund.
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Employment related injury
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To recover under workers' comp, the worker's injury must have been employment related. Stress may be a compensable injury.
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Exclusive Remedy
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-Worker's comp is an exclusive remedy, meaning that a worker cannot sue their employer in court for the damages, except when an employer intentionally injures and employee.
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Occupational Safety and Health Act
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Federal, state and local governments are exempt.
- The act imposes record keeping and reporting requirements on employers. - Requires employers to post notices in the workplace informing employess of their rights under the act. |
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Specific Duty Standard (OSHA)
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- addresses a safety problem of a specific duty nature.
- Eg, requirement for a afety guard on a particular type of equipment |
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General Duty Standard (OSHA)
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Duty that an employer has to provide a work environment "Free from recognized hazards that are causing or likely to cause deat or serious physical harm to his employees.
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Fair Labor Standards Act
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- Prohibits child Labor
- Establishes minimum wage req's. - estabishes overtime pay reqs |
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Family and Medical Leave Act
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-Applies to employers with 50 or more workers, federal, state and local gov't workers.
- employee must have worked for employer for more than 1 year. - employee must have worked 1250 hours in last year - Must use all available sick time and vacation time before it is applied. |
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FMLA (Cont'd)
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Provides up to 12 weeks of unpaid leave for:
- Birth of a Child - Placement of a child for adoption or foster care. - Serious health condition. - care for spouse, child or parent with serious health condition. Employee must be given equivalent pay and benefits. No accrual of seniority. |
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Consolidated Omnibus Budget Reconciliation Act
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Separated employee must be offered the opportunity to continue group health program. Separated employee bears cost plus administration fees.
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Employee Retirement Income Security Act
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If an employee offers a pension plan, ERISA Applies
- Establishes record keeping and disclosure reqs - Establishes reqs for vesting - Establishes percentage of assets than can be invested in employer's securities. |
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Immigration reform and control act
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Administered by INS
Makes it unlawful to hire illegal immigrants. - Employers must keep records. - Employers must file I-9 |
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Omnibus Crime Control and Safe Streets Act
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Allows employers to ban personal calls for compliance.
- Prohibits employers from listening to provate phone conversations. - Employers are subject to fines if they continue to listen to private conversations. |
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Electronic communications Privacy Act
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Amendment to OCCSSA
- Extends employee privacy rights to email and cell phones, etc. - Allows employers to monitor but not to continue upon discovery of personal nature. |
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Drug Free Workplace Act
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Allows employers to develop anti0drug policies
- employers who recieve federal aid or business of more than $25000 or more with federal gov't. - Four Different Contets 1. Pre-employment drug screening 2. periodic physical testing 3. reasonable suspicion 4. random testing |
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Employment at Will
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- Statutory Exceptions
- Contract exceptions - Tort Exceptions - Public Policy Exceptions |
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Equal opportunity in employment
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The right of all amployees and job applicants to:
- To be treated without discrimination - to be able to sue employers if they are discriminated against |
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Equal Employment Opportunity Commission
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The federal administrative agency responsible for enforcing most federal anti-discrimination laws. Empowered to:
- Conduct investigations - interperet statutes - Encourage conciliation between employees and employers. - bring suit to enforce the law. |
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Title VII of the Civil Rights Act
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intended to eliminate job discrimination based on 5 protected Classes
- Race - Color - Religion - Sex - National Origion |
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Title VII applies to
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- Employers with 15 or more employees
- All employment agencies - Labor unions with 15 or more members - State and local gov'ts and their agencies. - Most federal Gov't employment. |
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Title VII applies to any term, condition or privilege of employment including, but not limited to:
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- Hiring and firing
- Work rules - Promotion and demotion - Payment of compensation and benefits. - Availability of job training opportunities |
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Forms of title VII Action - Disparate treatment discrimination
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Occurs when an employer discriminates against a specific individual because his or her race, color, national origin, sex or religion.
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Forms of title VII Action - Disparate Impact Discrimination
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- Occurs when an employer discriminates against an entire protected class
- Often, this is proven through statistical data about the employer's employment tactics. |
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Procedure for Bringing a Title VII action
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- Private complainant must file a complaint with the EEOC
- The EEOC is given the opportunity to sue the employer on the complainant's behalf. - If the EEOC chooses not to bring a suit, it will issue a right to sue letter to the complainant. - Complainant now has the right to sue the employer |
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Remedies for Violations of Title VII
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A successful plaintiff in a title VII action can recover back pay and reasonable attorney's fees.
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Race
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Race refers to broad categories such as black, asian, caucasian and native american
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Color
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Refers to the color of a person's skin
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Sexual Harassment
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- refusing to hire or promote someone unless he or she has sex with the manager or supervisor is sex discrimination that violates title VII
- Other forms of conduct, such as lewd remarks, touching, intimidation, posting pinups, other verbal or physical conduct of a sexual nature. |
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Circumstances that create a hostile work environment include:
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Frequency of the discriminatory conduct; it's severity; whether it is physically threatening, humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
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Religious Discrimination
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Under title VII, an employer is under a duty to reasonably accomodate an employee's religious practices, observances or beliefs if it does not cause undue hardship to the employer
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Bona Fide Occupational Qualification
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Employment discrimination is based on a protected class (Other than race or color) is lawful if it is:
- Job related - And a business necessity. this exception is narrowly interpreted by the courts. |
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Civil Rights act of 1866
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Enacted after the civil war that says all persons "Have the same right to make and enforce contracts as is enjoyed by white persons."
Prohibits racial and national origin employment descrimination. |
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Equal pay act
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Protects both sexes from pay discrimination based on pay
The act prohibits disparity in pay for jobs that require - Equal skill - equal effort - equal responsibility - similar working conditions |
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Criteria that Justify a Differential in wages
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- Seniority
- Merit - Quantity or quality of product - Any factor other than sex * the employers bears the burden of proving these defenses. |
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Age Discrimination in Employment Act
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Prohibits age discrimination in all employment decisions, including:
- Hiring - Promotions - Payment of Compensation - Other terms and conditions of employment *The Older Workers Benefit Protection Act (OWBPA) amended the ADEA to prohibit discrimination with regard to employee benefits. |
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ADEA (Cont'd)
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ADEA applies to employees 40 or older
- Covered employers cannot establish mandatory retirement ages for their employees. - ADEA is administered by the EEOC |
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American with Disabilities Act
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The ADA imposes on employers and providers of public transportation, telecommunications and public accommodations to accommodate individuals with disabilities.
- Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities. |
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Reasonable Accommodation Under ADA
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May include:
- Making facilities readily accessible - Providing part-time or modified work schedules - Acquiring equipment or devices - Modifying examination and training materials. - providing qualified readers or interpreters |
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Qualified individual with a Disability
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A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds.
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Disabled person
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Someone who
- Has a physical or mental impairment that substantially limits one or more of their major life activities. - Has a record of such impairment - Is regarded as having such impairment. |
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Forbidden Conduct in ADA
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- Employers are forbidden from asking a job applicant about the existence, nature and severity of a disability.
- Pre-employment medical examinations are forbidden before a job offer. |
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Procedure and remedies under ADA
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- Aggrieved person must first file charge with EEOC
*EEOC may choose to take action *EEOC may permit individual to take action - Relief * Injuction * Reinstatement with back pay * Attorney's fees * Compensatory and punitive damages |
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Affirmative action
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Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision
*Key issues - Reverse discrimination - Race Norming |
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Reverse Discrimination
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Title VII protects members of majority class
- Affirmative action plans cannot have preestablished numbers of quotas - Majority class members may sue to recover damages and other remedies. |
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State and Local Gov't Anti-discrimination Laws
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Many state and local gov'ts have adopted laws that prevent discrimination in employment
- Usually include classes protected by federal equal opportunity laws. - Also include classes of persons not protected by federal laws. (eg, homosexuals) |
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International reach of US Anti-discrimination laws
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- Civil Rights Act of 1991 expressly protects US citizens employed in a foreign country by US controlled employers.
- Foreign operations not covered by US employers are not covered - The law contains an express exception that protects US controlled employers from conflicting foreign laws. |
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Principle sources of environmental law
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- Common Law actions
- State and local regulations - Federal regulation |
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Approaches to evironmental Law
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- Tort Law
- Gov't Subsidies - Emission charges - Marketbale discharge permits - Direct Regulation |
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Tort Law - Nuisance
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- Use of one's property causing annoyance, inconvenience or discomfort to another.
* Public Nuisance - Affects the community at large * Private Nuisance - Disturbs one's neighbors only |
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Standing to file a Nuisance charge
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Public Nuisance - Govt'
Private Nuisance - Individual(s) |
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Government Subsidies approach
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under a gov't subsidy system, the gov't pays pollutants to reduce their emissions.
- Tax breaks, low-interest loans, grants for pollution control. |
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Marketable discharge permits
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Gov't issues permits to polluters authorizing the discharge of pollutants
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Direct Regulation Approach
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the gov't enacts a comprehensive set of regulations designed to protect the environment by improving the air and water quality.
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Two standards for direct regulation
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- Technology forcing: Standards are established based on health considerations and industries are forced to develop technology within these standards
- Technology driven: Standards are established based on existing technology with hopes to better control pollution based on the limits of the existing technology |
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EPA
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- Administrative agency created by congress to attack all forms of pollution and coordinate the implementation and enforcement of the federal evironmental protection laws
* Broad rule-making powers * Adjudicative powers - Can initiate judicial proceedings against suspected violators of federal environmental laws |
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National Environmental Policy act of 1970
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- Federal statute that mandates that the federal gov't consider the adverse impact a federal action would have on the environment before the action is implemented.
- Created the Council on Environmental quality - Does not apply to actions by state or local gov'ts or private parties |
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Environmental Impact Statement
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- Must be prepared for all federal actions that significantly affect the quality of the human environment.
- the purpose is to provide enough information about the environment to enable the federal gov't to determine the feasibility of the project. * used as evidence in court whenever federala action is challenged as violating NEPA or other environmental laws. |
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EIS required when:
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3 elements are present (threshold considerations)
- The action is federal: Grant of a license, issuance of a loan, or lease of property by gov't agency - Major activity, ie, requires substantial commitment of resources - Activity must have substantial impact on the human environment. |
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environmental impacts
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Noise, high traffic and congestion, burden of public facilities like sewage and transportation, and increased crime and illegal drugs.
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EIS must:
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- Described affected environment
- describe impact on environment - identify and discuss alternatives - list resources to be committed. - contain cost-benefit analysis *it is subject to review and comments *EPA decisions are appealable to appropriate US court of appeals. |
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Clean Air Act (As amended)
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- Federal statute enacted in 1963 to assist the united states in dealing with air problems.
-CAA as amended (1970, 1977, 1990) provides comprehensive regulation of air quality in the united states |
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Stationary sources of air pollution
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Factories:
Sattes must be identified - plans must be developed to reduce pollution |
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Mobile sources of air pollution
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Emissions standards are set and regulated by the EPA
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National Ambient Air Quality Standards
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The CAA directs the EPA to establish national ambient air quality standards for certain pollutants
- standards are set at two levels: * Human - to protect human beings * Secondary - to protect vegetation, matter, climate, visibility and economic values. -States are responsible for enforcement. |
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Nonattainment areas
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*Regions that do not meet air quality standards, Classified into 5 categories:
- Marginal, moderate, serious, severe and extreme. *States must submit compliance plans - failure to develop and implement approved plan will cause loss of highway funds and limitations on new sources of emissions. |
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Point Sources of Water pollution
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Sources of water pollution such as paper mills, manufacturing plants, electric utility plants, and sewage plants.
- Dischargers must keep records, maintain monitoring equipment, and keep samples of discharge. |
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Wetlands:
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Clean water acts forbids filling or dredging of wetlands without permit from the army corps of engineers.
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Safe Drinking Water Act
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- Authorizes the EPA to establish National primary drinking water standards.
- Prohibits the dumping of wastes into wells used for drinking water. - The states are primarily responsible for enforcing this act |
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Ocean Protection
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Marine protection, Research and Sanctuaries act
- Extended environmental protection to the oceans. - requires a permit for dumping wastes and other foreign materials into ocean waters. - Establishes marine sanctuaries in ocean waters and in the great lakes and their connecting waters. |
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Oil Spills
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- Oil Pollution act of 1990 requires oil industry to adopt procedures and contingency plans.
- The CWA authorizes the US gov't to clean up oil spills and spills of other hazmats in ocean waters. * the gov't can recover cleanup costs from responsible parties. |
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Toxi Substances
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- Chemicals used for agricultural, industrial and mining uses that cause injury to humans, birds, animals, fish and vegetation.
- Key Federal Laws: * Insecticide, Fungicide and Rodenticide Act of 1947 - Toxic Substances control act of 1976 |
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Hazardous Waste
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Solid waste that may cause or significantly contribute to an increase in mortality or serious illness to pose a hazard to human health or the environment if improperly managed
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Land Pollution
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- Pollution of the land that is generally caused by hazardous waste being disposed of in an improper manner.
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Toxic Substances Control act
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- Requires manufacturers to test new chemicals to determine their effect on human health and the environment
- EPA establishes standards - Requires stationary sources to control emissions - EPA can limit or prohibit manufacture and sale, or remove it from commerce. |
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Resource Conservation and Recovery Act
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- Federal statute that authorizes the EPA to regulate facilities that generate, treat, store and dispose of hazardous wastes
- States have primary responsibilities for implementing the standards established by the act and EPA regs. |
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Comprehensive Environmental Response, Compensation and Liability Act of 1980
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- Superfund
- Administered by the EPA - Gives the federal gov't a mandate to deal with hazardous wastes that have been spilled, stored or abandoned. |
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Superfund requires the EPA to
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- Identify sites in the US where hazardous wastes have been disposed of, stored, abandoned or spilled
- Rank the sites regarding the severity of risks - The hazardous wast sites with the highest ranking are put on a National Priority list - Law provides for the creation of a fund to finance the cleanup of hazardous waste sites. - Can order polluter or landowner to pay for cleanup. |
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Radiation Pollution
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EPA has the authority to set standards for radioactivity and to regulate disposal.
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Nuclear Regulatory commission
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Licenses the construction and opening of commercial nuclear power plants.
- Continually monitors the operation of nuclear power plants and may close a plant if safety violations are found. |
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EPA nuclear regulation
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- Regulates thermal pollution from nuclear power plants.
- Regulates emissions from uranium mines and mills. |
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Endangered Species
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- Secretary of the interior is empowered to declare a form of wildlife endangered or threatened.
- Act requires the EPA and the Dept of Commerce to designate critical habitats for each endangered and threatened species. |
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Federal Wildlife Laws
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- Migratory Bird Treaty Act
- Bald Eagle protection act - Wild Free-Roaming Horses and Burros act - Marine mammal protection Act - Migratory Bird Conservation act - Fishery conservation and Management Act - Fish and Wildlife Coordination Act - National Wildlife refuge System |
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Global Dimensions of Environmental Regulation
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- Transnational Nature of Pollution
* Movement of air in prevailing wind patterns * Movement of water through ocean currents * Active and passive migration of numerous species of plants and animals. - Global Commons, IE Oceans - US and Global Environmental Policies |
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Kyoto Protocol
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- ratified by 173 countries
- International treaty to reduce greenhouse gases - US did not sign, but has adopted it's own regulations |
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Unsecured Credit
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Credit that does not require any collateral to protect the payment of the debt.
- Creditor relies on the debtor's promise to repay the principal plus interest when it's due - Creditor may bring legal action if the debtor fails to make payments |
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Security Interests in Real Poperty
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- Mortgage
- Note of deed and trust - Recording Statute - Foreclosure - Deficiency Judgement - Right of redemption - Land sales contracts |
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Note of Deed and Trust
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- Used in place of mortgage in some states
- Not is instrument evidencing borrowers debt - Deed of trust gives creditor security interest in property * Three party instrument. * Legal title of property placed with trustee until owner-debtor(Trustor) pays creditor(Beneficiary) |
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Recording Statute
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- Mortgages and deed of trust must be recorded at the county recorder's office
- Gives potential lenders and purchasers notice as nto claims against property - Nonrecordation des not affect legality of instrument. - Improperly recorded instrument is not effective agaist subsequent purchasers or other mortgagees. |
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Deficiency judgement
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Some states permit the mortgagee to bring a separate legal action to recover a deficiency from the mortgager
- If successful, the court will award a deficiency judgement that entitles the mortgagee to recover the amount of the judgement from the mortgager's property. |
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Right of Redemption
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State Statutes that allow mortgagor to redeem real property after default and before forclosure
- Requires the mortgager to pay the full amount of the debt incurred by the mortgagee because of the mortgager's default. |
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Land Sales Contract
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- Arrangement where the owner of real property agrees to sell the property to a purchaser, who agrees to pay purchase price to the owner-seller over an agreed upon period of time.
- Often used to sell undeveloped property and farms. - If the purchaser defaults, the seller may declare a forfeiture and retake possession of the property |
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Material Person's Lien or Mechanic's Lien
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A contractor and laborers lien that makes the real property to which improvements are being made become security for the payment of the services and materials for those improvements.
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Obtaining a Material Person's Lien
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- Lienholder must file a notice of lien
- Notice must be filed within a specific time period - Notice of the lien must be given to the owner of the real property - Lien release must be signed afterward |
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Personal Property subject to a Security Agreement
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- Goods
- Instruments - Chattel paper - Documents of title - Accounts - General intangibles |
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Goods
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- Consumer goods
- Equipment used for business - Farm Products - Inventory - Fixtures affixed to real estate |
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Instruments
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Checks, notes, stocks, bonds, other investment securities
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Chattel Paper
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conditional sales contract
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Accounts
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Accounts receivable, etcetera.
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General intangibles
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Patents, copyrights, money franchises, and royalities
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Validity of Security Agreement
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must:
- Clearly describe the collateral so that it can be readily identified - Contain debtor's promise to repay the creditor, including terms - Set forth the creditor's rights upon the debtor's default. - Be signed by the debtor. |
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Attachment
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- Debtor has a legal right to collateral
- Rights of secured party attach to collateral - Creditor has enforceable security interest in property - Debt can be satsified out of collateral. |
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The Floating-Lien Concept
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- A security interest in property that was not in possession of the debtor when the security agreement was excecuted.
- Can attach to - After-acquired property - Future advances - Sale proceeds |
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Debtor will be considered in default if he
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- Fails to make scheduled payments
- File for Bankruptcy - Breach of warranty of ownership as to the collateral - Are in violation of any event defined in the security agreement |
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UCC remedies for default
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- Taking possession of collateral
- Relinquishing the security interest and proceeding to judgement on underlying debt - Security agreements covering real and personal property |
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Secured Creditor may not retain collateral property if:
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-There is a written objection
- The goods are consumer goods and the debtor has paid 60% of the cas price or loan. |
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Disposition
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The creditor can dispose of the goods in any commercially reasonable method
*the proceeds must be first applied to - Reasonable expenses of retaking, holding and preparing of collateral for sale. - Satisfying balance owed - satisfaction of any subordinate claims - debtor gets surplus |
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Deficiency and redemption
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- The secured party may bring an action to recover any deficiency
- The debtor or another secured party may redeem the collateral before the lienholder has disposed of it, entered into a contract for sale, or discharged the debtor's obligations |
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Relinquishing the Security Interest
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- The creditor may relinquish his security interest and proceed to judgement to recover underlying debt.
- Usually chosen when the value of collateral has been reduced below the value of secured interest. |
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Surety Arrangement
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Third person (surety or co-debtor agrees to be liable for payment of another person's debt. Also called accommodation party or cosigner. Surety is primarily responsible for the debt
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Guaranty Arrangement
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Third person (Guarantor) agrees to pay debtor if he defaults
- Guaranotor is secondarily responsilbe for the debt |
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Defenses of a surety or Guarantor
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May allege the same defenses a principle debtor has
- Defense of fraudulent inducement to enter as guarantor/surety may be alleged - Duress may be alleged - Guarantor/surety may not assert debtor's incapacity |
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Enforcement of Remedies
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If the breaching party refuses to pay the court ordered judgement, the court may issue:
- Writ of Attachment - Writ of Garnishment |
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Writ of Attachment
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Orders the sheriff to
- Seize property in the possession of the breaching party that he or she owns - To sell the property at auction to satisfy the judgement |
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Writ of Garnishment
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Orders that
- Wages, bank accounts, or other property of the breaching party that is in the hands of third parties be paid over to the non breaching party to satisfy the judgement |
