Chapter Seventeen Flashcards Preview

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Flashcards in Chapter Seventeen Deck (232):
1

Employment at will

A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise.

2

Whistleblowing

An employee's disclosure is government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities

3

Wrongful Discharge

An employer's termination of an employee's employment in a violation of the law.

4

Minimum Wage

The lowest wage, either by government regulation or union contract, that an employer may pay an hourly worker.

5

Workers Compensation laws

State statutes establishing an administrative procedure for compensating workers for injuries that arise out of-or in the course of-their employment, regardless of fault.

6

Vesting

The creation of an absolute or unconditional right or power.

7

I-9 Verification

A process that all employers in the United States must perform within three business days of hiring a new worker to verify the employment eligibility and identity of the worker by completing and I-9 employment eligibility verification form.

8

I-551 Alien Registration Receipt

A document, common known as a "green card," that shows that a foreign born individual has been lawfully admitted for permanent residency in the United States. Persons seeking employment can prove to prospective employers that they are legally in the United States by showing the receipt.

9

The National Labor Relations Act of 1935 (Wagner) Union

-Community of Interests
-Bargaining Unit
-Shop steward
-Collective bargaining Agreement
-Industrial Union
-Craft Union
-Business Agent

10

Community of Interests (union)

Factors employees have in common for bargaining purposes

11

Bargaining Unit (Union)

The group of employees in workplace that have the legal right to bargain with the employer.

12

Shop steward (union)

Union member chosen as intermediary between union members and employer.

13

Collective Bargaining

Negotiated contract between labor management

14

Industrial Union

Union organized across, an industry, regardless of member's job type

15

Craft Unions

Unions organized by the employee's craft or trade.

16

Business Agent Unions

The representative of a union, usually craft

17

Labor Laws Began with

Restricting court responses to union activity

18

Labor Laws

Unions gained power and abused it, resulting in additional labor management legislation

19

Contract Limitations Express

"Cause" or "Just cause"

20

Contract Limitations Implied

Contracts that the courts infer from the behavior of the parties, of that are implied from law; eg., employee handbooks/policy manuals (Example: a handbook provision that says employees can only be fired for "Just cause".

21

Statutory Income Security provision (List)

-Social Security
-Medicare
-Employee Retirement Income security act
-unemployment compensation
-Consolidate Omnibus budget Reconciliation Act (COBRA)
-Health insurance portability and accountability ACT (HIPPA)

22

The Norris-Laguardia Act

The first major labor law statute enacted in the United States.

23

The norris-Laguardia Act Provisions

-Curbed courts' power to intervene in labor disputes
-Significant impact in curbing prosecution under the antirust laws.

24

Curbed courts power to intervine in labor disputes

less of injunctive relief

25

Unfair Labor Practices

Strikes and Lockouts

26

Unfair Labour practices may include

-Refusal to bargain in good faith
-engaging in activities that would tend to attempt to control or influence the union
-Interfering with union's affairs
-Discriminating against employees who join or assist unions

27

The Landrum-Griffin

-Also known as the Labor Management Reporting and Disclosure Act.
-Enacted in response to congressional investigations into union corruption
-Bill of rights for union members
-procedures for holding union elections
-safeguarding funds

28

La Fleur v. La Fleur (Iowa 1990) Characters

-Frank- Son/Plantiff
-Francis- Father/Defendant
-James and Tammie- Brother and Sister
-Sioux City Newpaper, Inc./Defendant

29

La Fleur v. La Fleur Key Points James and Tamme Carrier contracts

James and Tammie signed written "Carrier contracts" with the company. Their father, Francis, signed a parental release and guarantee of those contracts.

30

La Fleur v. La Fleur key points contract between the company and James and Tammie

The contract between te company and James and Tammie stated that the newspapers carriers were "independent contractors"

31

Federal Labor-Management Relations Laws

-Norris-LaGuarida Act
-National Labor relations Act (Wagner Act)
-Labor Management Relations Act (Taft-Hartley)
-Landrum Griffin Act of 1959
-The role of the National Labor Relations Board (NLRB)
-The unionization process
-Right-to-Work Laws.

32

Harrod v. Wineman (1910)

On June 30, Harrod and Wineman entered into a written contract whereby Harrod agreed "to manage and conduct a laundry business....[for] a weekly salary of $30."

33

Harrod v. Wineman (Iowa 1910) contract details

The contract contains no stipulation as to the period of such employment...." The "60-day/$120" Clause

34

Harrod v. Wineman (discharged)

On july 15, 1908, Harrod was discharged by Wineman. Harrod filed a "wrongful discharge" claim against Wineman in Polk county.

35

Harrod v. Wineman Iowa Supreme Court

The Iowa Supreme court and common law rule of employment-at-will-- "... a contract of indefinite employment may be abandoned at will by either party..."

36

The National Labor Relations Act of 1935 (Wagner Act)

-The National Labor Relations Board
-Concerted Activity
-Good Faith Bargaining
-Duty of fair representation

37

The National Labor Relations Act of 1935 (Wagner Act) The National Labor Relations Board

-Enforces labor laws in the private sector and conducts union elections
-Community of interests- formation of bargaining unit

38

The National Labor Relations Act of 1935 (Wagner Act) Concerted Activity

-Union organizing
-Discussion of unionization and solicitation of union support

39

The National Labor Relations Act of 1935 (Wagner Act) Good faith Bargaining

-Mandatory Subjects of Bargaining
-Permissive subjects of bargaining
-Closed Shop.

40

Good Faith Bargaining: Mandatory subjects of bargaining

Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management.

41

Good faith bargaining: Permissive subject of bargaining

Nonmandatory subjects that can be negotiated between labor and management.

42

Good faith bargaining: Closed Shop

employer hires only union. Bad-faith bargaining

43

The National Labor Relations Act of 1935 (Wagner Act) Duty of fair representation

Requires the union to represent all employees fairly and nondiscriminatorily.

44

Union Members' bill of rights

-Right to attend union meetings vote on union business, and nominate candidates for union right to bring an agency or court action against the union after exhausting union procedures
-Certain procedures must be followed before any dues or initiation fee increases
-full and fair hearing when being disciplined by union; exception- failure to pay dues.

45

Management tips

-once the union is in place, conduct all negotiations only with the union representatives
-treat the collective bargaining process as one would any business activity
-know what the law requires
-keep the lines of communication open
-try to keep the "us versus them" mentality from having a negative impact on the collective bargaining process
-play hardball without setting management up for an unfair lagbor practice change.
-If employees decide they wish to unionize, do not try to negatively influence the decision
-Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidental
-know the kings of things the employer can legal do to influence the unionization decision, and do only those things that are permissible.

46

State Worker's Compensation Laws

-Compensation for Work-related injuries/illness
-exclusivity remedies.

47

Employee Traits vs Independent contractor

-trained by employer
-tools, office and requirements for job provided by employer
-hours worked, location of workplace, manner of work all controlled by employer
-most if not all employee's income comes from one employer
-employee must professionally perform work requested.
-Services are regularly and continuously performed
-paid by the hour, week, or month
-can be terminated by any lawful reason and employer has no liability (unless there is an employment contract or CBA that prohibits.)

48

Tests

-Common Law Control Test
-IRS 21 Factor (control) Test
-Economic Realities Test

49

Harrod v. Wineman Result

the Iowa Supreme Court noted in dismissing Harrod's claim that "this conclusion may, and doubtless does, work a hardship to the appellant Harrod, but is one against which he could have easily protected himself in framing the contract of service. Failing to do so, he is without remedy.

50

Worker Adjustment and Retraining Notification (WARN) Act

Warn act covers employers with 100 or more full-time employees

51

WARN Act requires

Requires 60-days advance written notice before a plant shutdown or mass layoff. Notice goes to affected employees, labor unions and local/state government.

52

Employee Privacy Rights

Protections under the constitution and tort law
-Electronic communications privacy act (stored communication act)
-Employee polygraph protection act
-Employee Testing

53

Employee privacy rights: employee testing

-Drug testing
-AIDs testing
-Genetic Testing (GINA)

54

Harrod v. Wineman (discharged)

On july 15, 1908, Harrod was discharged by Wineman. Harrod filed a "wrongful discharge" claim against Wineman in Polk county.

55

Harrod v. Wineman (discharged)

On july 15, 1908, Harrod was discharged by Wineman. Harrod filed a "wrongful discharge" claim against Wineman in Polk county.

56

Harrod v. Wineman Iowa Supreme Court

The Iowa Supreme court and common law rule of employment-at-will-- "... a contract of indefinite employment may be abandoned at will by either party..."

57

The National Labor Relations Act of 1935 (Wagner Act)

-The National Labor Relations Board
-Concerted Activity
-Good Faith Bargaining
-Duty of fair representation

58

Harrod v. Wineman Iowa Supreme Court

The Iowa Supreme court and common law rule of employment-at-will-- "... a contract of indefinite employment may be abandoned at will by either party..."

59

The National Labor Relations Act of 1935 (Wagner Act)

-The National Labor Relations Board
-Concerted Activity
-Good Faith Bargaining
-Duty of fair representation

60

The National Labor Relations Act of 1935 (Wagner Act) The National Labor Relations Board

-Enforces labor laws in the private sector and conducts union elections
-Community of interests- formation of bargaining unit

61

The National Labor Relations Act of 1935 (Wagner Act) The National Labor Relations Board

-Enforces labor laws in the private sector and conducts union elections
-Community of interests- formation of bargaining unit

62

The National Labor Relations Act of 1935 (Wagner Act) Concerted Activity

-Union organizing
-Discussion of unionization and solicitation of union support

63

The National Labor Relations Act of 1935 (Wagner Act) Concerted Activity

-Union organizing
-Discussion of unionization and solicitation of union support

64

The National Labor Relations Act of 1935 (Wagner Act) Good faith Bargaining

-Mandatory Subjects of Bargaining
-Permissive subjects of bargaining
-Closed Shop.

65

The National Labor Relations Act of 1935 (Wagner Act) Good faith Bargaining

-Mandatory Subjects of Bargaining
-Permissive subjects of bargaining
-Closed Shop.

66

Good Faith Bargaining: Mandatory subjects of bargaining

Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management.

67

Good Faith Bargaining: Mandatory subjects of bargaining

Wages, hours, and other (though not all) conditions of employment, which, by law, must be negotiated between labor and management.

68

Good faith bargaining: Permissive subject of bargaining

Nonmandatory subjects that can be negotiated between labor and management.

69

Good faith bargaining: Closed Shop

employer hires only union. Bad-faith bargaining

70

Good faith bargaining: Permissive subject of bargaining

Nonmandatory subjects that can be negotiated between labor and management.

71

Good faith bargaining: Closed Shop

employer hires only union. Bad-faith bargaining

72

The National Labor Relations Act of 1935 (Wagner Act) Duty of fair representation

Requires the union to represent all employees fairly and nondiscriminatorily.

73

The National Labor Relations Act of 1935 (Wagner Act) Duty of fair representation

Requires the union to represent all employees fairly and nondiscriminatorily.

74

Union Members' bill of rights

-Right to attend union meetings vote on union business, and nominate candidates for union right to bring an agency or court action against the union after exhausting union procedures
-Certain procedures must be followed before any dues or initiation fee increases
-full and fair hearing when being disciplined by union; exception- failure to pay dues.

75

Union Members' bill of rights

-Right to attend union meetings vote on union business, and nominate candidates for union right to bring an agency or court action against the union after exhausting union procedures
-Certain procedures must be followed before any dues or initiation fee increases
-full and fair hearing when being disciplined by union; exception- failure to pay dues.

76

Management tips

-once the union is in place, conduct all negotiations only with the union representatives
-treat the collective bargaining process as one would any business activity
-know what the law requires
-keep the lines of communication open
-try to keep the "us versus them" mentality from having a negative impact on the collective bargaining process
-play hardball without setting management up for an unfair lagbor practice change.
-If employees decide they wish to unionize, do not try to negatively influence the decision
-Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidental
-know the kings of things the employer can legal do to influence the unionization decision, and do only those things that are permissible.

77

Management tips

-once the union is in place, conduct all negotiations only with the union representatives
-treat the collective bargaining process as one would any business activity
-know what the law requires
-keep the lines of communication open
-try to keep the "us versus them" mentality from having a negative impact on the collective bargaining process
-play hardball without setting management up for an unfair lagbor practice change.
-If employees decide they wish to unionize, do not try to negatively influence the decision
-Do not assume any employee you speak to for the purpose of persuading employees not to unionize will keep the conversation confidental
-know the kings of things the employer can legal do to influence the unionization decision, and do only those things that are permissible.

78

State Worker's Compensation Laws

-Compensation for Work-related injuries/illness
-exclusivity remedies.

79

State Worker's Compensation Laws

-Compensation for Work-related injuries/illness
-exclusivity remedies.

80

Employee Traits vs Independent contractor

-trained by employer
-tools, office and requirements for job provided by employer
-hours worked, location of workplace, manner of work all controlled by employer
-most if not all employee's income comes from one employer
-employee must professionally perform work requested.
-Services are regularly and continuously performed
-paid by the hour, week, or month
-can be terminated by any lawful reason and employer has no liability (unless there is an employment contract or CBA that prohibits.)

81

Employee Traits vs Independent contractor

-trained by employer
-tools, office and requirements for job provided by employer
-hours worked, location of workplace, manner of work all controlled by employer
-most if not all employee's income comes from one employer
-employee must professionally perform work requested.
-Services are regularly and continuously performed
-paid by the hour, week, or month
-can be terminated by any lawful reason and employer has no liability (unless there is an employment contract or CBA that prohibits.)

82

Tests

-Common Law Control Test
-IRS 21 Factor (control) Test
-Economic Realities Test

83

Tests

-Common Law Control Test
-IRS 21 Factor (control) Test
-Economic Realities Test

84

Harrod v. Wineman Result

the Iowa Supreme Court noted in dismissing Harrod's claim that "this conclusion may, and doubtless does, work a hardship to the appellant Harrod, but is one against which he could have easily protected himself in framing the contract of service. Failing to do so, he is without remedy.

85

Harrod v. Wineman Result

the Iowa Supreme Court noted in dismissing Harrod's claim that "this conclusion may, and doubtless does, work a hardship to the appellant Harrod, but is one against which he could have easily protected himself in framing the contract of service. Failing to do so, he is without remedy.

86

Worker Adjustment and Retraining Notification (WARN) Act

Warn act covers employers with 100 or more full-time employees

87

Worker Adjustment and Retraining Notification (WARN) Act

Warn act covers employers with 100 or more full-time employees

88

WARN Act requires

Requires 60-days advance written notice before a plant shutdown or mass layoff. Notice goes to affected employees, labor unions and local/state government.

89

WARN Act requires

Requires 60-days advance written notice before a plant shutdown or mass layoff. Notice goes to affected employees, labor unions and local/state government.

90

Employee Privacy Rights

Protections under the constitution and tort law
-Electronic communications privacy act (stored communication act)
-Employee polygraph protection act
-Employee Testing

91

Employee Privacy Rights

Protections under the constitution and tort law
-Electronic communications privacy act (stored communication act)
-Employee polygraph protection act
-Employee Testing

92

Employee privacy rights: employee testing

-Drug testing
-AIDs testing
-Genetic Testing (GINA)

93

Employee privacy rights: employee testing

-Drug testing
-AIDs testing
-Genetic Testing (GINA)

94

Limited Liability Companies (LLCs)

-An LLC Offers the limited liability of a corporation and the tax status of a partnership. The owners of the LLC are called "members"

95

LLCs articles of organization

Articles of organizations must be filled with secretary of state. Business' name must inclue the initials LLC.

96

LLC popularity

The LLC is popular because it has: limited liability (members' liability is limited to the amount of their investment in the LLC), Favorable Tax Status (can be taxed as a partnership or corporation), duration (continues despite death/incapacity of a member), and flexibility (foreign investors can be members of LLC)

97

Franchises

Franchisor grants a right to sell goods or services to a franchisee in return for payment of a franchise fee.

98

Francise Uniform

Uniform product or services and the use of a trademark help the franchisee established quickly in the market.

99

Francise Laws

are still developing. Federal and state laws protect investors.

100

FTC Franchise Rule:

Franchisor is required to give an offering circular (disclosure statement) to potential franchisees at least 10 business days before transaction.

101

Franchise contract

sets forth rights and obligations of the parties.

102

Types of Franchises

-Distributorship
-Chain-style business operation
-Manufacturing
-Processing-plant arrangement

103

Franchises obligation of Good faith and fair dealing case

Holiday Inn Franchising Inc V. Hotel Associates, Inc.

104

C-Corporation

A corporation is a legal entity that is seperate from its owners (Shareholders).

105

C-corporation formation

Corporation is formed by filling articles of incorporation with the secretary of state.

106

C-Corporation different roles

-Shareholders
-Directors
-Officers

107

C-Corporation shareholders

The shareholders own the corporation and elect the directors

108

C-Corporations directors

The directors govern the general affairs of the corporation and appoint the officers.

109

C-Corporations officers

The officers conduct day-to-day business of the corporation

110

C-Corporation typically

it is typical in smaller corporations for an individual to hold two or three roles concurrently.

111

Manager-Managed LLC Default rules

-Except as provided elsewhere in the act, matters related to the activities of the LLS are decided by the managers
-Each manager has equal rights in the management of the LLC.
-Differences arising among the managers in the ordinary course of business are decided by a majority of the managers
-Decisions outside the ordinary course of business require unanimous consent of the members
-managers are selected by a majority of the members and can be removed at any time by a majority of the members without notice or cause.

112

Limited Liability Companies (LLCs) Operating agreement

An LLC's operating agreement spells out how the business will be managed, how profits will be distributed to the members, how membership interest can be transferred, decision-making procedures, and whether the LLC will be dissolved upon the death or departure of a member.

113

Limited Liability Companies: Fiduciary duties

-A managers owes duties of loyalty and care to the LLC and generally to the LLC's members.
-Members have similar duties of loyalty and care in "member-managed" LLC

114

LLC Fiduciary duty: a manger owes duties of loyalty and care to the LLC and generally to the LLC's members: case

Polk v. Polk

115

Some actions that may violate a partner's fiduciary duties of care and loyalty include

-Self dealing
-using partnership property for private profit/conflicts of interests
-Meinhard v. Salmon

116

Self Dealing

-competing with the partnership
-Taking a business opportunity away from partnership without consent of partners

117

Meinhard v. Salmon

A partners failure to inform his partner of business opportunity- "The trouble about Salmon's conduct is that he excluded his coadverturer from any chance to compete, from any chance to enjoy the opportunity for benefit.

118

C-Corporation Control

Shareholders, Directors, Officiers, Flexible.

119

C-Corporation Liability

The debts incurred by the corporation generally cannot be collected from shareholders, directors, or officers.

120

C-Corporations Taxes

Double taxation, corporation pays tax on the income earned by the corporation and its shareholders pay tax on dividends received from the corporations.

121

C-Corporations taxation: under certain circumstances

under certain circumstances courts permit recovery against shareholders of the corporation and use the assets of the shareholders for the obligations of the corporation.

This is known as "piercing the corporate veil or disregarding the corporate entity.

122

Immigration law

-Immigration reform and control act of 1986
-Immigration act of 1990

123

Immigration reform and control act of 1986

-I-9 Verification of newly-hired employees
-enforced by ICE (US customs enforcement).

124

Immigration act of 1990

-H-1B visa program (visas in "specialty occupations")
-other visas (H-2, O, L, and E)

125

Employee at-will

an "employee at will" is someone "whose job does not have specified duration" -- a job offer with no term/set duration of work.

126

At-will employees job protection

At-will employees can be fired for any reason (good or bad) at any time without any notice.

127

At-will employees protection

at-will employees can be protected from unfair discharged by contract, "judge-made" protections and/or statutory law.

128

Public policy limitations to the at-will doctrine: public policy exceptions

-whistleblowers
"retaliatory" discharge (E.g., workers compensation and unemployment compensation claims).
-clear mandate" of public policy (existing law or court decisions).

129

Wage and Hour laws

The fair labor standards act

130

The Fair labor standards act (FLSA)

-employers engaged in/affecting interstate commerce.
-minimum wage
-overtime pay
-child labor restrictions
-enforcement

131

the fair labor standards act: minimum wage

7.25

132

the fair labor standards act: overtime pay

1.5 pay for more than 40 work hours in work week.

133

The fair labor standards act: enforcement

-wage and hour division/ department of labor (DOL)
-private lawsuit.

134

Employers like to classify workers as employees because

-employer can control worker's work (methods, manner, training, performance, ect.)
-employee is theoretically more loyal to employer
-can terminate employee usually without liability.

135

The family medical leave act

-covered employers, employees and events
-A "serious health condition"
-Leave provisions
-reinstatement rights
-enforcement.

136

The family and medical leave act: a serious health condition

An illness, injury or condition that requires impatient hospital care, or that lasts more than three days and requires continuing treatment by a health care provider, or that involves pregnancy, or a long-term or permanently disabling health condition.

137

The family and medical leave act: survey

A DOL survey shoed that 36% of employers described complying with FMLA "difficult" and nine of ten employers indicated that the FML does not "hurt productivity"

138

Workplace safety and health act

The occupational safety and health (OSHA)

139

The Occupational safety and health act (OSHA)

The OSHA covers any "person engaged in business affecting commerce who has employees, but does not include united states or any state or political subdivision of a state"

140

OSHA adminstration

The OSHA is administrated by the Occupational safety and health administration. (OSHA).

141

Coming together on issues

-Labor law
-Collective bargaining
-nature of the american economy

142

Coming together on issues: labor law

different and discrete from employment law

143

coming together on issues: Collective bargaining

negotiations and agreements between management and labor about wages, hours, and other terms and conditions of employment

144

coming together on issues: nature of the American economy

Shift from agrarian to industrial. Basis for modern issues.

145

Collective bargaining agreements list

-management security/rights clause
-midterm negotiations

146

Collective Bargaining agreements: management security/rights clause:

Parties agree that management has the right to run the business and make appropriate business decisions as long as applicable laws and agreements are complied with. Catch-all clause allows management to make decisions not covered by the CBA or applicable law.

147

Collective bargaining agreements: midterm negotiations

Collective bargaining negotiations during the term of the contract.

148

types of labor relations in the public sector

-Federal employees
-State, county, and municipal public employees.

149

Labor relations in the public sector: federal employees

-many states have collective bargaining statutes covering most public employees
-federal restrictions
-civil service reform act of 1978

150

civil service reform act of 1978

federal labor relations authority

151

Labor relations in the public secto: state, county, and municipal public employees

-professional associations
-craft unions
-industrial-type unions
-AFL-CIO
-Difference between public and private collective bargaining.

152

Traits of independent contractor

-already trained or trains self
-provides own tools, equipments, materials for the work
-provides work or services to more than one employers
-is not economically dependent solely on one employer
-has a stake in the profits and losses of his or her business.

153

Independent contractor: termination

Termination of the services of the independent contractor by employer could lead to breach of contract suit. likewise, poor performance on the part of independent contractor could lead to breach of contract suit.

154

Independent contractor: payment

is usually paid by the project, no hourly , weekly,ect.

155

independent contractor: method

manner and method of work is not controlled by employer.

156

FLSA exemptions-- overtime and minimum wage

-administrative employees
-executive employees
-professional employees
-outside salesperson
-computer programmer

157

Overtime and minimum wage: administrative employees

-salaried employee; non-manual work that is directly related to management policies or to the general operation of the busienss

158

overtime and minimum wage: administrative employees case

Smith v. Johnson and Johnson

159

overtime and minimum wage: executive employees

salaried employee; management job duties and regularly supervise 2 or more employees

160

overtime and minimum wage: professional employees

-salaried employee
-"learned" profession/artist talent/ skill.

161

Employment at will: Horace G. wood, a treatise on the law of master & servant (1877)

With us the rule is inflexible, that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring the burden is upon him to establish it by proof...it is an indefinite hiring and is determinable at the will of either party , and in this respect there is no distinction between domestic and other servants.

162

Employers like to classify workers as independent contractors because

-They're less expensive (no payroll taxes, benefits, ect)
-they're more motivated
-employer is not vicariously liable for their negligence
-anti discrimination and other employment law s don't apply.

163

Out of necessity comes change:

-national war labor board
-national industrial recovery act
-decrease in unionization
-labor unions still remain an important part of the work place.

164

Out of necessity comes change: national war labor board

-peacful resolution of labor disputes

165

Out of necessity comes change: national industrial recovery act

-put business in charge of regulating prices and production

166

out of necessity comes change: national industrial recovery act

-put business in charge of regulating prices and production
-established a minimum wage
-gave workers collective bargaining and other rights
-declared unconstitutional in 1935

167

OUt of necessity comes change: decrease in unionization

-reduction in heavily unionized industries
-agressive nonunionizing campaigns by employers
-union concessions during downturns in the economy
-North American Free Trade Agreement (NAFTA)
-international competition

168

The Taft-Hartley Act

-Amendment to the NLRA
-enacted to curb excesses by unions
-section 7, unfair labor practice for unions to

169

The taft-hartley act: section 7, unfair labor practice unions to

-restrain employees in the exercise of their rights or employers in the selection of their representatives for collective bargaining.
-cause an employer to discriminate against an employee.
-refuse to bargain with an employer
-engage in jurisdictional or secondary boycotts
-charge excess or discriminatory initiation fees or dues
-cause an employee to pay for goods or services that are not provided.

170

An example of an at-will employee

Mr humberfloob (sean Hayes) fires an employee in the Cat in the Hat for simply trying shake his hand

171

An example of an at-will employee Mr. Humberfloob reason for firing

Mr. Humberfloob has a thing about germs. At-will employees can be discharged for any reason- good or bad- which does not violate law or contract.

172

A Historical Accounting

-Antitrust Attacks
-Constitutional challenges to early congressional enactments.
-The national labor relations act
-Administered by NLRB
-unfair job practices by unions are notably missing from the act.

173

A Historical Accounting: Antitrust Attacks

-Sherman Antitrust Act
-Secondary Boycotts
-Clayton Act

174

A Historical Accounting: Antitrust attacks: Secondary Boycotts

Union pressure on management by getting others wo do business with management to cease

175

A Historical Accounting: Antitrust Attacks: Clayton Act

issue of injunction against labor

176

A Historical Accounting: Criminal Conspiracy laws

early union activity considered to be common law criminal conspiracies

177

A Historical accounting: injunctions

Court order requiring individuals or groups of persons to refrain from performing certain acts that the court has determined will do irreparable harm.

178

A historical accounting: injunctions: yellow dog contracts

Agreements stating that employees do not belong to a union and will not join one; now illegal.

179

Key points Frank's respondent

"Frank's respondent superior theory is premised on the claim that his father was an employee of the newspaper...at the time of the injury. If that is true, the company would..be responsible for any negligence of the father at the time of the injury.

180

Key Points newspaper company position

The newspaper company takes the position that the father was an independent contractor.

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Misclassification as independent contractor

-IRS can assess very severe penalties (equal to 20% of FICA)
-Back taxes (FICA and FUTA) can be assessed with interest and penalties.
-Under FLSA employer could be liable for unpaid wages or overtime compensation, also accrued and unpaid benefits
-FLSA fines

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Professional Limited Liability Companies: the Iowa LLC

The Iowa LLC act contains a special subchapter devoted to professional limited liability companies.

183

Professional Limited Liability Companies:Name

The name of a professional limited liability company must include the words "professional limited company" or abbreviation "PLC"

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Professional Limited Liability: Practices

May practices its designated profession only through persons who are licensed to do so.

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Professional Limited Liability Company: Membership

May issue membership intrest only to person with professional license in the designated profession, and may not issue any interests that are convertible into interest therein. members of such companies may assign their membership interests only to persons holding a license in the designated profession.

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Partners' management duties

partners are personally liable are personally liable the debts of the partnership.

187

Partners' Management Duties: partners

Partners have a fiduciary duty (Act "in a trustworthy and confidential fashion") to their partnership. This includes the legal duty of care and legal duty of loyalty to the partnership. A partner must "account to the partnership" for profit or benefit the partner derives from the partnership, refrain from competing with the partnership, refrain from competing with the partnership, and refrain from "grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.

188

A manager of choices

The sole proprietorship is the simplest, least regulated and most common form of business organization

189

Sole proprietorship: control

Sole proprietor has total control of business operations and complete share of profits

190

Sole proprietorship: Liability

all of sole proprietor's personal and business assets are at risk.

191

Sole Proprietorship: Taxes

Taxes reported on sole proprietor's personal tax forms.

192

Dissociation

occurs when a partner ceases to be associated in the carrying on of the partnership business.

193

Dissolution

the termination of a partnership

194

winding up

the process of collecting, liquidating, and distributing the partnership assets.

195

Advantage of S-Corporation

Avoid self-employment tax on dividends

196

Employment (including S-Corp shareholders): old age survivors and disability insurance (OASDI)

6.2% on employer (Deductible)
6.2 on employe (nondeductible)
income base cap $106,800 (2009)

197

Employment (Including S-Corp Shareholders): Hospital insurance (Medicad)

1.45% on employer (deductible)
1.45% on employee (nondeductible)
no base cap

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Employment (including S-corp shareholders): Federal unemployment tax act (FUTA)

6.20% rates on employer (6% after 2009)(less state credit not exceeding 5.4% of first $7,000) (deductible). Base cap $7,000.

199

Self-employment (including partners): Old age survivors and disability insurance (OASDI)

12.4% (one-half deductible) Income base cap $106,800 (2009)

200

Self-employment (including partners): hospital insurance (Medicad)

2.9 (one-half deductible) no base cap

201

Self-employment (including partners: federal unemployment tax act (FUTA)

not applicable

202

New Iowa LLC statute

Effective January 1, 2009, new iowa code chapter 489 took effect. all LLCs formed on and after that date covered by the new law.

203

New Iowa LLC statute: current LLC

On January 1, 2011 the current LCC statute (490A) was repealed and all LLCs are now subject to Iowa code chapter 489.

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Partnerships list:

-General partnership
-limited partnership
-limited liability partnership
-limited liability limited partnership.

205

Partnerships whats the difference between them

partner liability

206

Limited partnership control

general partner controls

207

limited partnership liability

no limited liability for general partnerships or limited partners who actively engage in the business.

208

limited partnership taxes

pass-through tax treatment

209

Limited Liability Company

A business entity organized under state law by filling a certificate of organization. a -Taxable as partnerships with management structures like an LP except that all members and managers have limited liability.
-Check the box regulations allow LLCs to be taxed as corporations (C and S) partnerships or disregarded entities.
-Wide variety of uses for single member LLs
-No ownership restrictions
-management flexibility-- corporate model or partnership model.
-Flexible transfer provisions.
-flexibility as to distributions and allocations.

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Limited Liability Company shield

Complete limited liability shield for members comparable to that of a corporation.

211

Limited Liability Company pass through

"pass through" entity. No entity level tax.

212

Advantages of Subchapter K: partnership debt example

-members may only deduct losses attributable to entity-activities to the extent of a members "basis".
-in general, basis is the sum of a member's capital contributions, items of income/gain allocated to the member, less distributions and items of expense/oss
-in an LLC (or partnership), members are permitted to increase their basis by the member's share of entity-level liabilities.
-there is nothing like this in the corporate context.

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Advantage of S-corporation: Employment taxas: S-Corporations

FICA, FUTA

214

Advantage of S-Corporation: Employment taxes: Subchapter K

SE Tax only

215

Advantage of S-Corporation: Dividends S-Corporation

Not subject to FICA or FUTA tax unless really wages.

216

Advantage of S-Corporations: Dividends Subchapter k

Taxed on all income even if not distributed.

217

Advantages of Subchapter K: section 754

in the event of a member's death (or certain other events), an LLC can make a 754," election which allows the basis of the assets of the LLC to be stepped up to fair market value.

218

Advantages of Subchapter K: Section 754 allows a person

This allows a person who succeeds to a membership interest to 1) take greater depreciation deductions and 2)recognize less gain on sale of LLC property.

219

Partnership Debt

Three members form ABC, LLC. ABC, LLC purchases building and pays 50k cash and assumes a purchase-money mortage of $150,000

220

Partnership debt each partner

Each partner made a constructive cash contribution of 50K

221

Partnership Debt Even if

Evae if ABC, LLC generates no gross income for several years, each partner may realize depreciation deductions up to its basis (at least $50K)

222

Certificate of Organization

under the new LLC statute, LLCs will file certificates of organization, not articles of organization.

223

required provisions: name of LLC

ULLCA: yes RULLCA: yes

224

required provision: office and agent for service of process

ULLCA: yes RULLCA: yes

225

Required Provisions: Name and adress of organizers

ULLCA: yes RULLCA: no

226

Required Provisions: Whether member- or manager-managed

ULLCA: yes RULLCA: no

227

Required Provisions: Whether LLC is for a term

ULLCA: yes RULLCA: no

228

Employes are more expensive

100,000 anual salary
FICA 7,650
Health Insurance 4,800
Unemployment Compensation Tax: 4,000
Worker Comp Premium- 500
Administrative expense- 20
extra cost to employer- 17,150.00

229

Collective Bargaining

-The legal duty to bargain "in good faith"
-mandatory subjects of bargaining
-dispute resolution processes involving contractual grievances (arbitration)
-concerted activities, strikes, and lockouts
-unfair labor practices.

230

The National Labor Relations Act of 1935 (Wagner Act)

The National Labor Relations Act
-Administered by NLRB
-Unfair job practices by unions are notably missing from the act.

231

The National Labor relations act

-enacted to avoid the unconstitutional delegation of legislative power
-outlines unfair labor practices

232

Respondeat Superior in Action

Alice Griffin is a lawyer who works in New York City. ON her way to work on Feb 10, 2004. Ms. Griffin stopped by her neighborhood starbucks and ordered a large decaf coffee. According to ms. griffin the starbucks clerk "slid the sleeveless cup toward her, but it tipped off the edge of the coutner] losing its top and fell on her foot." ms griffin claims that the spilled coffee caused 2nd degree burns to her foot and that "she still suffers pain when she puts her foot in anything, too hot or cold and can only wear certain kinds of shoes." her lawyer contends that "the clerk violated starbucks" rules that required coffee cups to have sleeves and securely fastend lids." ms. Griffin filed a lawsuit against starbucks and was awarded 301,000 in damages.