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41 Cards in this Set
- Front
- Back
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What is the Basis of AGENCY LAW?
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A combination of Tort & Contractual law that holds the Employer (Principle) contractually responsible for actions that the Employee (Agent) may have committed or contracts in which they have entered on the Principles behalf.
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What are 3 different relationships that Agency Law defines?
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Agents and Principles
Agents and 3rd Parties whom the agent deals with on behalf of the Principle Third Parties and Principles when an Agent acts on the behalf of the principle. |
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What is Imputed Liability?
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While an agent can enter a contract, it is on behalf of the Principle. If an employee acts negligent, it is IMPUTED that liability is held the the principle.
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What do we need to know in order to impute responsibility on someone?
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Degree of Control test
1. How did we establish the Agency Relationship? 2. How far is the scope of the Agent? |
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Why do businesses often contract out work to outside companies?
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To avoid liability and benefits that are involved with the Employer/Employee relationship
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What is Tort Liability within the realm of Agency Law?
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Holding the principle responsible for the actions of an agent even if they didn't intend to or have knowledge of the harm that they caused.
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What does an Independent Contractor relationship involve?
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The Independent Contractor relationship does not establish the Principle/Agent relationship which in turn avoids
Imputed Liability and Benefits |
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What is a Frolic?
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A minor deviation from the scope of a job.
Remains to hold Imputed Liability |
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What is a Detour?
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A major deviation from the scope of a job.
Which makes the employer have NO LIABILITY for the actions of the person committing the act |
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What is the degree of control test?
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It establishes whether or not there is a Principle/Agent relationship by asking..
Are you an Employee (W2) or an Independent Contract (1090)? Is there an exclusive relationship? Do you deliver to other places besides me? Do you have to abide by my dress code? Do you provide me my tools? Do you wear our logos? |
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What are the 3 ways to establish the Principle/Agent relationship in Binding Contract?
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1. Actual/Expressed Authority
2. Implied or Apparent Authority 3. Principle must ratify after the fact |
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What is Actual or Expressed Authority?
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Principle/Employer specifically authorizes an employee to enter into contracts on behalf of the principle. (Rarely an agent will have expressed authority)
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What is Implied or Apparent Authority?
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The job description has implied authority. *Would a 3rd party reasonably believe that the agent has actual authority
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What is ratification after the fact?
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When the Principle or person of authority ratifies a contract after the contract has been signed by the non consented agent and the 3rd party.
ex. Chief Justice coming to MSU |
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What is the Duty of Indemnification?
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The duty of a Principle to pay an employee for their service
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What is the Duty of Loyalty?
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The duty an agent to preform their duty to a principle.
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What are the 3 types of business associations and what are they created under?
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1. Sole Proprietorship
2. Partnership 3. Corporations *all businesses are founded under State law |
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What is Sole Proprietorship and what does it entail?
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Self employed, UNLIMITED personal liability but UNLIMITED opportunity. No difference/distinction between the business and you as a single person.
You and the Business are one. As businesses grow, so does the liability. |
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What is a Partnership and what does it entail?
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A partnership is the owning of a business but with split liability, as in if the business was to get sued they could come after both partners. Unless there is a limited partnership where only the main owner can have his assets liable.
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What is a Corporation and why do business go corporate?
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The business becomes its own legal entity, separate and distinct from its owners. 1 reason businesses incorporate is to limit their own personal liability from the businesses actions.
Investors in the corporation can only be sued up to what they have invested. |
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What is sub-chapter S Corporations?
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An S corporation, for United States federal income tax purposes, is a corporation that makes a valid election to be taxed under Subchapter S of Chapter 1 of the Internal Revenue Code.
In general, S Corporations do not pay any income taxes. Instead, the corporation's income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns. |
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What are sub-chapter C Corporations?
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A C corporation (or C corp.) is a corporation in the United States that, for Federal income tax purposes, is taxed under 26 U.S.C. § 11 and Subchapter C (26 U.S.C. § 301 et seq.) of Chapter 1 of the Internal Revenue Code.[1] Most major companies (and many smaller companies) are treated as C corporations for Federal income tax purposes.
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What is LLC?
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Limited Liability Company - Often confused with limited liability corporation, this is the ideal business set up for sole proprietorship or a partnership because it limits the amount of assets that a person can come after
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What is a Professional Corporation?
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A professional corporation is a special kind of corporation that only members of certain professions, such as lawyers, doctors, and healthcare workers, can create. By forming a professional corporation, professionals can limit their personal liability for the malpractice of their associates.
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What is Joint and Several Liability?
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When there is more than one person in a party liable for something and the person suing has the option of charging 1, both, or all parties that are liable.
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What is the Employment at Will Doctrine?
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A doctrine that enables you to be discriminated, fired, promoted etc. as long as it is not unlawful.
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What are the unlawful reasons upon which someone can be fired for?
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Race, Gender, Religion, Color, National Origin
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What is Fixed Contract Exception
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Most contracts today have no duration specification, thus if there is a fixed time on the contract then it is an exception because it is restrictive in a way that must be justified on the basis of objective reasons
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What is the Elliot Larson Civil Rights Act?
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It says that people cannot be discriminated against because of their height and weight. (Michigan Civil Rights Act)
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What are The Statutory Exceptions to Employment at Will?
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Equal Pay Act, Civil Rights Act, Age Discrimination, National Labor Relations Act / Wagner Act, Americans with Disabilities Act, The Rehabilitation Act, Whistle Blower Act, and the Occupational Health and Safety Act
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What is just cause for termination?
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Just Cause is the burden of proof that an employer must prove in order to terminate an employee, usually one that is hired under union contract
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What is Merit Defense?
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Merit is a measure of performance, for instance perhaps a man and a woman are working at the exact same job and the man is making more money because he has been performing well for a period of time and has earned his merit.
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What is a Bona fide occupational qualification?
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A quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees.
Ex. certain jobs require certain characteristics (hooters) |
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What is Longevity/Seniority Defense?
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The defense that someone can be paid unequally because they have been at that position for an extended period of time over the other person. Thus having seniority implies more experience which allows for a higher unequal pay.
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What are some of the issues arising from Sexual Harassment?
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You should be able to work without being put into an intimidating work environment based on your sex.
Quid pro quo sexual harassment is when your boss threatens you with the loss of a job benefit, or actually changes your working conditions, because you will not submit to his sexual demands. |
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What happens when an employer offers a severance package?
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An employee is accepting that they are about to be terminated and they then forfeit all their rights to sue the company except for workers compensation. (injury compensation)
*They also must agree to confidentiality |
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The Americans with disabilities act does what and applies when?
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Forces an employer to make reasonable accommodation's for a person with a disability but only if the company has more than 15 employees.
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What is the Wagner Act / NLRA?
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The Wagner Act granted the people the right to collectively bargain (labor unions).
National Labor Relations Act - created a board that enforces NLR's rules. They can prosecute and judge peoples hearings. Employees give up their "employ at will" right when becoming unionized. |
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What is the Taft Hartley Act?
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The Taft Hartley Act amended the Wagner Act and prohibited "unfair labor practices" not on the side of the employer but by the employees/unions.
ex. The Taft-Hartley Act prohibited jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, "common situs" picketing, closed shops, and monetary donations by unions to federal political campaigns |
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What is the Landrum Griffith Act?
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It created a "bill of rights" for labor unions and regulates labor unions' internal affairs and their officials' relationships with their employers.
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What is a closed shop?
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When an employer makes being part of the union a requirement to become an employee
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