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Flashcards in Employment Environment Law Deck (36):

When is an employee covered by Workman's Compensation?

Employees injured on the job get protection; even if they messed up and caused the injury themselves

1. Tax is paid by the employer, NOT paid by the employee

2. Employee cannot sue employer UNLESS employer intentionally injured the employee

3. Employee can sue 3rd parties and receive workers' compensation benefits

Exception: If the employee intentionally harmed themselves; there is no Workman’s Compensation

The following actions by an employee will keep them from getting workers' compensation benefits:

1. Employee intentionally inflicted the injury upon themselves

2. Employee was engaged in a fistfight with another employee when the injury occurred

3. Employee was legally intoxicated when the injury occurred


What are the major aspects of FICA and Social Security taxes?

Paid by Employer AND Employee - Employer withholds from employee’s paycheck and must pay tax matching employee’s withholding

If employer under-withholds; they are required to make up the difference

Self-employed individuals must pay both the employer and the employee share; which is “Self Employment Tax”

People drawing Social Security may have their benefits reduced if they go back to work and earn an income

Up to 85% of benefits can be taxable if certain income levels are exceeded


Describe the Federal Unemployment Tax Act

An employer-paid tax

Must file return and pay even if only one employee works there

Deductible to company - Not deductible by the employee

Allows employers to credit the FUTA liability by the amount of State Unemployment Tax (SUTA) they pay


What are the tenets of the Occupational Safety and Health Act (OSHA)?

Employers should promote a safe workplace and environment for their employees to work in

Injury records must be kept
Penalties can be both
o Civil - $1,000 fine per day
o Criminal - Could include imprisonment

Employer can require a search warrant for OSHA to investigate their facilities


What age group is protected under Age Discrimination Laws?

They protect people ages 40 and above at companies where at least 20 people are employed


What are the powers granted under the Environmental Protection Act?

EPA has the power to assess civil penalties for violating environmental laws like the Clean Air Act

The EPA can sue violators

Citizens can sue violators

States can sue violators

Citizens can even sue the EPA to force enforcement

For hazardous waste sites, the following parties can be held liable:

1. Owners (past or current)

2. Operators (past or current)

3. Generators (i.e. the owner of the waste deposited at the site)

4. Transporters

5. Lenders associated with the site


What are the powers granted under the Environmental Protection Act?

EPA has the power to assess civil penalties for violating environmental laws like the Clean Air Act

The EPA can sue violators

Citizens can sue violators

States can sue violators

Citizens can even sue the EPA to force enforcement

For hazardous waste sites: owners; operators; transporters; and lenders associated with the site can
be held liable


What class of workers that are exempt from receiving worker's compensation?

Independent contractors and agricultural workers are NOT covered by worker's compensation


What is the key concept of the Sherman Act of 1890?

The Sherman Act of 1890 makes contracts, combinations, conspiracies, or agreements in restraint of trade illegal under Section 1

For example, McDonald's can decide that all of its stores will sell Quarter Pounders for $1.99. They cannot agree with Burger King that if Burger King will charge at least 3.50 for a Whopper, then McDonald's will sell Quarter Pounders for $3.50

Only unreasonable restraints are illegal


What is the per se rule?

(Approach that courts use to determine whether a restraint is unreasonable under the Sherman Act of 1890 - Section 1)

The per se rule means that the restraint is automatically illegal:

1. Activities viewed as so inherently anticompetitive that no valid justification exists

2. Generally applies to horizontal restraints of trade

a. Horizontal restraints of trade involve agreements with competitors (i.e. an agreement between McDonald's and Burger King)

3. Activities that don't fall under per se rule are analyzed under rule of reason


What are examples of Per se Horizontal restraints?

(Sherman Act of 1890 - Section 1)

Per se horizontal restraints include:

1. Price fixing (agreement)

a. Whether it actually affects prices or not

b. Whether the fixed price is fair or not (presumed unfair)

c. Dollar volume is unimportant (existing of any price fixing is illegal

d. Actual agreement is not necessary if the parties have a tacit understanding to adhere to it

e. Includes quantity limitations and minimum, maximum, buying & selling prices

2. Joint boycotts (i.e. group agreements not to deal with another) are per se violations

3. Horizontal territorial limitation is a per se violation (i.e. two competitors agree not to sell in each other's section of the city)


What are examples of horizontal agreements per se that AREN'T illegal?

(Sherman Act of 1890 - Section 1)

Not all horizontal agreements are illegal per se:

1. A joint venture is analyzed under the rule of reason because most anticompetitive effects are temporary

2. Trade and professional organization agreements are examined under the rule of reason


What are examples of Rule of Reason vertical restraints?

(Approach that courts use to determine whether a restraint is unreasonable under the Sherman Act of 1890 - Section 1)

Vertical restraints of trade involve agreements between businesses at different levels in the distribution chain (i.e. McDonald's entering into an agreement with Coke to only use Coca Cola products in McDonald's restaurants)

Vertical restraints are subject to a rule of reason

Resale price maintenance (vertical price fixing) - For example, Colgate toothpaste tells Wal-Mart that it must resell Colgate at a price of no less than $2 a tube. Wal-Mart refuses and Colgate does not sell toothpaste to Wal-Mart. Since there is no agreement between Colgate and Wal-Mart, there cannot be a violation of Section 1 of the Sherman Act

Focuses on inter-brand (competition between different brands of the same product i.e. Campbell's soup and Progresso soup) and intra-brand competition (competition between the same brands at different prices (i.e. the price of Campbell's soup at different competing supermarkets)

- Generally inter-brand competition is viewed as good (usually legal under rule of reason)

Vertical territorial limitations (like with franchisee agreements) are only illegal if its unreasonable under rule of reason.


What does Section 2 of the Sherman Act of 1890 entail?

Monopolization violates Section 2 of the Sherman Act

- Illegal for a firm to obtain or maintain a monopoly, NOT illegal to actually have a monopoly

- No agreement necessary to violate Section 2

- Monopoly power does not need to be 100% of market share, generally 70% of market share is a presumption of monopoly power. However, a lower % can suffice if a company is charged with trying to obtain monopoly power

- To engage in illegal monopolization, there needs to be monopoly power and intent

- Growth resulting from superior product, quality of management or historical accident is NOT illegal & there must NOT be any predatory or coercive conduct


What is the key concepts of the Robinson-Patman Act of 1936?

Prohibits price discrimination - when a seller charges different prices to different buyers of the same good

However, price differences are permitted if there is a cost justification

Also, sellers may temporarily reduce price in one region to meet the price of a lower-priced competitor


What are key concepts regarding Copyright law?

Protects original works (i.e. literary, musical or artistic works)

1. Expressions of ideas are generally copyrightable

2. Valid for life of author + 75 years

3. Valid for 95 years from publication date when owned by publishing house OR 120 years from creation date (whichever expires first)


What are the key concepts of the Clayton Act of 1914?

Supplements the Sherman Act of 1890 to prohibit a corporation from acquiring the stock (of assets) of a competing corporation where the effect MIGHT substantially lessen competition or tend to create a monopoly

The Act applies to vertical mergers (i.e. a shoe manufacturer buys out one of its retailers), horizontal mergers (a shoe retailer buys out another shoe retailer) and conglomerate merges (i.e. a pen manufacturer buys out a clothing retailer)

Interlocking directorates are prohibited under the Clayton Act (a director can't sit on the board of two competing large companies)

Tying arrangements are disallowed - occurs where seller forces buyer to take one or more other products as a condition to acquiring the desired product (i.e. a manufacturer of a very popular line of jeans requires its retailers to also stock the manufacturer's line of shirts in order to obtain the jeans)


What are key concepts regarding the Consumer Software Copyright Act?

Consumer Software Copyright Act amends copyright law to include computer programs as creative works protected by federal law

1. Cover computer program readable by humans + binary language read by computer

2. Covers general items in program such as its basic structure and organizations

Remedies include stated statutory damages or actual damages including profits attributed to infringement of copyright - injunctions are also allowed


What are key concepts regarding Patent law?

Patent law covers machines, processes, art, methods, composition of matter, new and useful improvements including genetically engineered plant or animals

Mere ideals are NOT covered (practical applications may be though)

Valid for 20 years from when patent application was filed

Patent law is 100% federal, no state patent law

Remedies include injunctions, damages including lost profits traceable to infringement, or assessment of reasonable royalties


What are key concepts regarding Trade Secrets Law?

Economic Espionage Act makes it a federal crime to use trade secrets

Remedies for violations include breach of contract, breach of fiduciary duties, wrongful appropriation of trade secret, injunction, theft and espionage

Trade secret protection can be lost:

1. If owner fails to take steps to keep the information secret

2. If someone else independently discovers the subject of the trade secret


What is the Semiconductor Chip Protection Act?

Semiconductor Chip Protection Act

1. Amends copyright laws

2. Prohibits taking apart chips to copy them (however the act allow this if done to create a new chip rather than to copy)

3. Protection is for 10 years from time of registration or first commercial application (which ever comes first)

4. Permits civil recovery and penalties up to $250K for chip piracy

5. Reverse engineering allowed if it creates some new innovation


What is the purpose of trademarks under the Lanham Act?

Trademarks under Lanham Act purpose is to:

1. Provide identification symbol for company's product

2. Guarantee consistent quality of all goods from same source

3. Advertising


What is Cybersquatting?

Cybersquatting is registering sites and domain names that are confusingly or deceptively similar to other existing trademarks

Congress passed the Federal Anti-cybersquatting Consumer Protection Act to help stop cybersquatting and to provide clearer standards of proof and remedies for this activity such as injunctions to stop the activity as well as money damages


What is the 1995 Trademark Dilution Act?

The 1995 Trademark Dilution Act expands the Lanham Act to protect a weakening of a famous mark's ability to distinguish goods

Prior law required the infringing trademark to cause confusion as to the source of the product


What is the Computer Matching and Privacy Act?

The Computer Matching and Privacy Act regulates computer systems used to determine eligibility for various government programs such as student financial aid


What is the Right to Financial Privacy Act?

The Right to Financial Privacy Act restricts government access to financial institution records without customer approval


What is the Family Educational Rights and Privacy Act?

The Family Educational Rights and Privacy Act grants adult students and parents of minors access and right to correct records at institutions of higher learning


What is the Counterfeit Access Device and Computer Fraud and Abuse Act?

The Counterfeit Access Device and Computer Fraud and Abuse Act makes it a crime to:

1. Obtain financial institution's financial records

2. Use cards, codes, counterfeit devices, etc. to obtain valuable items or to transfer funds without authorization


What is the Information Infrastructure Protection Act?

The Information Infrastructure Protection Act:

1. Helps protect individuals or companies from another's unauthorized use of or access to computer's data (encompasses computer hackers, transmitting computer viruses or worms, etc.)


What is the Identity Theft and Assumption Deterrence Act?

The Identity Theft and Assumption Deterrence Act is a federal law that makes identity theft and identify fraud felonies

Act also helps victims of identity theft by having Federal Trade Commission aid them to erase effects of identity theft and to aid them to restore their credit


What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act deals with:

1. Federal law based on treaties with other countries to minimize pirating and distribution of copyrighted works

2. Provides civil and criminal penalties

Note: the internet service provider (ISP) is generally not liable for customers' copyright infringement UNLESS they became aware of infringement and failed to correct the problem


What is the Uniform Computer Information Transactions Act (UCITA)?

The Uniform Computer Information Transactions Act requires the following to be in writing:

1. Contracts for licensing of information rights for over $5,000

2. Contracts for licensing of information services that cannot be performed within one year

3. User agrees to contract by clicking, for example, on "I agree prompt button"


What are Internet Treaties?

Internet treaties grants between many signing nations providing copyright protection for computer programs, producers' rights, performers' rights over the internet


What is the Gramm-Leach Bliley (Financial Modernization) Act of 1999?

This act deals with accountants who prepare individual tax returns or provide nonbusiness tax or financial advice

The Gramm-Leach Bliley (Financial Modernization) Act of 1999 is as follows:

1. Accountants are prohibited from disclosing to a nonaffiliated 3rd party any nonpublic personal information about their client

2. Related FTC regulations require accountants to develop, implement and maintain a comprehensive information security program that outlines the ways in which they protect client information

3. Accountants are responsible for maintaining the confidentiality of information that is outsourced for processing (i.e. outsourced tax return preparation to a firm in a foreign country)


What is the Federal Telecommunications Act?

The Federal Telecommunications Act passed:

1. To increase competition in telecommunications market

2. Preempts any state or local government laws that have effect of minimizing or eliminating competition in telecommunications market


What is the Fair use doctrine?

The Fair use doctrine allows use for limited purposes without violating copyright

Examples include portions for comment, new reporting, research or teaching. A teacher could distribute copies of an article from a book or a computer print-out to their students. There is no distinction for fair use whether the copies come from a book or from a computer printout