Quiz 1 Flashcards
(152 cards)
<p>What law is the was the employment relationship originally base on?</p>
<p>Master and servant</p>
<p>define Agency relationship</p>
<p>one person acts on behalf of the other</p>
<p>define agent</p>
<p>actor</p>
<p>define principal</p>
<p>has authority over the agent</p>
<p>T/F In an employment–agency relationship, the employee–agent is not under a specific
duty to the principal to act only as authorized.
</p>
<p>F</p>
<p>if an agent goes beyond her authority or places the property of the principal at risk without authority, the principal is not responsible to the third party for all loss or damage naturally resulting from the agent’s unauthorized acts
</p>
<p>F</p>
<p>T/F The agent is not liable for damages incurred on the job </p>
<p>F</p>
<p>Define independent contractor</p>
<p>a person whocontracts with a principal to perform a task according to her or his own methods, and who is not under the principal’s control regarding the physical details of the work.</p>
<p>Title VII does not cover discrimination against independent contractors</p>
<p>T</p>
<p>T/F employers will not be liable for most
torts committed by an independent contractor within the scope of the working relationship.
</p>
<p>T</p>
<p>What is a benefit of using independent contractors?</p>
<p> employer does not have to pay Social Security (FICA), the FICA excise tax, Railroad Retirement Tax Act (RRTA) withholding amounts, federal unemployment compensation (FUTA), IRS federal income tax withholdings, Medicare, and state taxes.</p>
<p>T/F independent contractors have access to benefits from employers</p>
<p>F</p>
<p>What is the penalty for failing to correctly classify independent contractors and employees?</p>
<p>A willful misclassification under FLSA may result in imprisonment and up to a $10,000 fine,</p>
<p>Define vicarious liability</p>
<p>The imposition of liability on one party for the
wrongs of another. Liability may extend from an employee to the employer on this basis if the employee is acting within the scope of her or his employment at the time the liability arose.</p>
<p>Define common law agency test</p>
<p>A test used to determine employee status; though it considers several factors, the most critical is whether the employer has the right or ability to control the work.</p>
<p>IRS 20 Factor Analysis</p>
<p>A list of 20 factors to which the IRS looks to
determine whether someone is an employee or an independent contractor. The IRS compiled this list from
the results of judgments of the courts relating to
this issue.</p>
<p>T/F A worker who is required to comply with other persons’ instructions about when, where, and how to perform the work is ordinarily not considered to be an employee.</p>
<p>F</p>
<p>T/F Training a worker indicates that the employer exercises control over the means by which the result is accomplished.
</p>
<p>T</p>
<p>T/F When the success or continuation of a business depends on the performance of certain services, the worker performing those services is subject to a certain amount of control by the owner of the business.</p>
<p>T</p>
<p>T/F If the services must be rendered personally,
| the employer does not control both the means and the results of the work.</p>
<p>F</p>
<p>T/F Control is exercised if the employer hires, supervises, and pays assistants.
</p>
<p>T</p>
<p>T/F The existence of a continuing relationship between
| the worker and the employer does not indicate an employer–employee relationship.</p>
<p>F</p>
<p>T/F The establishment of hours of work by the employer indicates control.</p>
<p>T</p>
<p>T/F If the worker must devote full time to the employer’s
business, the employer has control over the worker’s time. An independent contractor is free to work when and for whom she or he chooses.</p>
<p>T</p>
T/F Control is not indicated if the work | is performed on the employer’s premises.
F
T/F Control is indicated if a worker is free to choose | his or her own pattern of work but must perform services in the sequence set by the employer.
F
T/F If the employer does not furnish significant tools, | materials, and other equipment, an employer–employee relationship usually does not exist.
T
T/F An independent contractor usually is paid by the job | or on a straight commission.
T
T/F A worker is an independent contractor if she or he invests in facilities that are not typically maintained by employees such as the maintenance of an office rented at fair value from an unrelated party. An employee depends on the employer for such facilities.
T
T/F A worker who cannot realize a profit or loss (in addition to the profit or loss ordinarily realized by employees) through management of resources is an independent contractor. The worker who can is generally not an employee.
T
T/F If a worker performs more than de minimis services for a number of unrelated persons at the same time, she or he is usually considered and employee
F
T/F A worker is usually an employee if the services are made available to the general public on a regular or consistent basis.
F
T/F The right of the employer to discharge a worker indicates that he or she is an independent contractor
F
T/F A worker is an employee if the right to end the relationship with the principal is available at any time he or she wishes without incurring liability.
T
Define economic realities test
courts consider whether the worker is economically dependent on the business or, as a matter of economic fact, is in business for himself or herself.
Is the work of independent contractors usually vital to the business?
no
Is the work of employees vital to the business?
yes
Are independent contractors trained by the business?
no
Are employees trained by the business?
yes
Who sets time schedules of employees>
employer
Who sets the time schedules of IC's
themselves
T/F IC's are not free to select their own staff or subcontract the work to others
F
Can an employee hire assistants to help them?
no
On what basis do IC's perform work?
project-to-project
T/F Employees can share time between a number of different employers
F
T/F IC's are required to work on site
F
Are IC's required to submit regular reports?
no
What are IC's generally paid for?
results
When are employees paid?
fixed intervals
Do IC's pay their own travel expenses?
yes
Do employees pay their own travel expenses?
no
Do employees use their own tools
no
IC's are responsible for blank
profit and loss
define contingent worker
one whose job with an employer is temporary, is sporadic, or differs in any way from the norm of full-time employment.
what are some examples of contingent workers?
those who are hired by an employer through a staffing firm, as well as temporary, seasonal, and part-time workers, and those considered to be independent contractors rather than employees.
What is the downside of contingent workers?
they could be subject to employment laws
What is it called if a client of a staffing firm supervises, trains, and otherwise directs the worker with whom it has a continuing relationship, then perhaps the client will become an employer of the worker.
joint and several liability
Define applicant
1. The employer has acted to fill a particular position. 2. The individual has followed the employer’s standard procedures for submitting applications. 3. The individual has indicated an interest in the particular position.
T/F e-mail inquiry about a job does not qualify the sender as an applicant, nor does the posting of a résumé on a third-party job board.
T
define employer
one who employs or uses others to | do his or her work, or to work on his or her behalf.
covenant not to compete or non-compete agreement
An agreement by the employee not to disclose the employer’s confidential information or enter into competition with the employer for a specified period of time and/or within a specified region.
define forum selection clause
A clause in a contract that identifies the state law that will apply to any disputes that arise under the contract.
```what conditions must be met in order for a restrictive covenant to be valid?
1. It protects a legitimate business interest. 2. It is ancillary to a legitimate business relationship. 3. It provides a benefit to both the employee and employer. 4. It is reasonable in scope and duration. 5. It is not contrary to the public interest.
define inevitable disclosure
The theory under which a court may prohibit a former employee from working for an employer’s competitor if the employer can show that it is inevitable that the former employee will disclose a trade secret by virtue of her or his position.
```Stare decisis
a system of using legal precedent.
T/F Once a case has been heard by the state supreme court, it cannot be heard by the federal supreme court
F
define plaintiff
One who brings a civil | action in court.
Define defendant
One against whom a | case is brought.
define appellant
One who brings an | appeal.
Define appellee
One who brings an | appeal.
define petitioner
One who appeals a case to the Supreme Court.
Define respondent
One against whom a case is appealed at the Supreme Court.
motion to dismiss
Request by a defendant for the court to dismiss the plaintiff’s case when there is insufficient evidence
motion for summary judgement
Defendant’s request for the court to rule on the plaintiff’s case based on the documents submitted, alleging there are no triable issues of fact to be decided.
```define per curiam
This is merely a brief decision by the court, rather than a long one, and is not issued by a particular judge.
define cause of action
Right provided by law for a party to sue for remedies when certain legal rights is violated.
prima facie case
The evidence that fits each requirement of a cause of action.
T/F Government employees are at-will employees
F
What types of employees are excluded from at-will employment?
government employees employees under a collective bargaining agreement employees with an individual contract with the employer
what are the exceptions to at-will employment?
1) violation of public policy or public good 2) breach of the implied covenant of good faith and fair dealing 3) breach of contract term 4) promissory estoppel
Define promissory estoppel
(where the employee reasonably relied on an employer’s promise, to the employee’s detriment).
define public policy
A legal concept intended to ensure that no individual lawfully do that which has a tendency to be injurious to the public or against the public good. Public policy is undermined by anything that harms a sense of individual rights.
```Define Jury System Improvement Acts
an employer cannot take negative action against an employee for serving jury duty
T/F family obligations are not considered sufficient cause to be terminated for not being willing to work overtime. You can be terminated in this case
T
Define Federal Whistleblower Statute
which prohibits retaliatory action specifically against defense contractor employees who disclose information pertaining to a violation of the law governing defense contracts.
Define retaliatory discharge
Retaliatory discharge is a broad term that encompasses terminations in response to an employee exercising rights provided by law.
How does one prove a retaliatory discharge claim?
1) participation in protected activity 2) an adverse employment action 3) causal connection between protected activity and adverse employment action
define constitutional protections
Retaliatory discharge is a broad term that encompasses | terminations in response to an employee exercising rights provided by law.
what is the exception to the constitutional protections?
You have to be a government employee
covenant of good faith and fair dealing
Implied contractual obligation to act in good faith in the fulfillment of each party’s contractual duties.
define implied contract
A contract that is not expressed but, instead, is created by other words or conduct of the parties involved.
```how is a proimissory estoppel enacted in a prima facie case?
1) employer makes promise 2) Worker relied on that promise 3) Worker relied on that promise to his/her detriment
define constructive discharge
Occurs when the employee is given no reasonable alternative but to end the employment relationship; considered an involuntary act on the part of the employee.
```what is the test to determine constructive discharge?
The test for constructive discharge is whether the employer made the working conditions so intolerable that no reasonable employee should be expected to endure.
T/F Failure to accommodate a disability, or even an employer’s offer of a severance package without a release of claims is not grounds for constructive discharge.
F
define worker adjustment and retraining act (WARN)
Before termination, WARN requires that employers with over 100 employees or aggregate 4000 hours of work per week must give 60 days’ advance notice of a plant closing or mass layoff to affected employees.
define mass layoff
as employment losses at one location during any 30-day | period of 500 or more workers, or of 50–499 workers if they constitute at least one-third of the active workforce.
what is the exception to WARN?
faltering company exception
define faltering company
involves an employer who is actively seeking capital and who in good faith believes that giving notice to the employees will preclude the employer from obtaining the needed capital. 2) natural disaster 3) sudden and dramatic business circumstances
define tort
violation of a duty, other than one owed when the parties have a contract.
how does one sustain a claim for defamation?
(1) the employer made a false and defamatory statement about the employee, (2) the statement was communicated to a third party without the employee’s consent, and (3) the communication caused harm to the employee.
Can an employee gain damages if they are let go because of invasion of privacy?
yes
Define disparate treatment
Treating similarly situated employees differently because of prohibited Title VII factors.
```how is a disparate treatment case set up?
1) employee belongs to a protected class under Title VII 2)Employee applied for and was qualified for a job for which the employer was seeking applicants 3)Employee was rejected and, after the rejection, the position remained open 4)Employer continued to seek applicants with the rejected applicant’s qualifications
How does the employer defend itself against disparate treatment accusation?
The employer can defend by showing that the action was | taken for a legitimate, non-discriminatory reason.
What is the BFOQ test?
1) Does the job require that the employee be of one gender only? 2) If the answer to question 1 is yes, is that requirement reasonably necessary to the “essence” of the employer’s particular business?
define BFOQ
Permissible discrimination if legally necessary | for an employer’s particular business.
what are the two requirements of establishing BFOQ?
(1) Does the job require that the employee be of one gender, and (2) if yes, is that reasonably necessary to the “essence” of the employer’s particular business?
define disparate/adverse impact
Deleterious effect of a facially neutral policy on a Title VII group.
define facially neutral policy
Workplace policy that applies equally to all appropriate employees.
List screening devices that have been shown to cause disparate impact?
Credit status Names Arrest Record Unwed Pregnancy Height and Weight requirements educational requirements marital status conviction of crime unrelated to job performance
```define four fifths rule
The minority must do at least 80 percent, or four-fifths, as well as the majority on a screening device or a presumption of disparate impact arises, and the device must then be shown to be a legitimate business necessity.
```How does an employee prove disparate impact of a screening device?
the employee is required to show that the statistical disparity is significant and has the effect of selecting applicants for hiring and promotion in ways adversely affecting groups protected by the law.
define objective criteria
factors that are able | to be quantified by anyone, such as scores on a written exam.
define subjective criteria
factors based on the evaluator’s personal thoughts or ideas (e.g., a supervisor’s opinion as to whether the employee being considered for promotion is “compatible” with the workplace).
define business necessity
Defense to a disparate impact case based on the employer’s need for the policy as a legitimate requirement for the job.
```Is it a good idea to have a quota policy to avoid litigation?
no
When is discrimination based on religion or disability ok?
as long as trying to accommodate the conflict between the status and the workplace policy does not create an undue hardship for the employer.
Employer cannot discriminate on the basis of:
Race Color Gender Religion National Origin
```o Employer cannot discriminate in making decisions regarding:
Hiring Firing Training Discipline Compensation Benefits Classification Other terms and conditions of employment
```Who must comply with Title VII?
Employers engaged in interstate commerce that have: • >15 employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year Unions Employment Agencies
Who is covered under Title VII?
Government Employees Private Employees Covers all levels of employees in the organization Non-US citizens within the United States US citizens outside the United States Undocumented Workers
Who is not covered under Title VII?
Businesses in or around Native American Reservations can give preferential treatment Employers with <15 employees
How long does a private sector employee have to file a claim with the EEOC?
180 days
How long do public employees have to file a claim?
45 days
Define 706 Agency
• State agency that handles EEOC claims under a work-sharing agreement with the EEOC • Employee has 300 days to file
Define Conciliation
• Attempting to reach agreement on a claim through discussion, without resort to litigation
Define Mediation
Alternative to EEOC investigation |
Define Right-To-Sue letter
• Letter given by the EEOC to claimants, notifying them of the EEOC’s no-cause finding and informing them of their right to pursue their claim in court
define judicial review in terms of employment law
If employee was issued no reasonable cause by EEOC, they can take it to court for a judicial review
Define De Novo review
o Complete new look at an administrative case by the reviewing court
Define Mandatory arbitration agreement
• Agreement an employee signs as a condition of employment, requiring that workplace disputes be arbitrated rather than litigated
How do employees sometimes feel when signing a mandatory arbitration agreement?
Employees feel they have little choice about signing their rights away
T/F the result of an arbitration is subject to judicial review
F
What is the statute of limitations under the Reconstruction Civil Rights acts?
there is not statute of limitations
Define Stare Decisis
system of legal precedent
T/F The supreme court cannot hear a case after it has been reviewed by the state supreme court
F
Define motion for summary judgement
o Defendant’s request for the court to rule on the plaintiff’s case based on the documents submitted, alleging there are no triable issues of fact to be decided
define per curiam decision
o A brief decision by the court, rather than a long one, and is not issued by a particular judge
define cause of action
o Right provided by law for a party to sue for certain remedies when certain legal rights are violated
define prima facie case
the evidence that fits the requirements of a cause of action
Which employees are not considered at-will?
• Government employees • Employees under collective bargaining agreement • Employees who have individual contract with their employer
T/F Bad faith, malicious, or retaliatory termination may serve as a violation of public policy are exceptions to at-will employment
T
T/F Termination in breach of the implied covenant of good faith and fair dealing are not exceptions to at-will employment
F
T/F Promissory estoppel is not a legitimate exception to at-will employment
F
define violation of public policy
• A legal concept intended to ensure that no individual lawfully do that which has a tendency to be injurious to the public or against the public good
How must an employee prove a retaliatory discharge claim?
o Employee must show that they were engaged in a protected activity o Employee must show that there was adverse action taken against them o Employee must show that the adverse action is a cause of their engaging in a protected activity
define covenant of good faith and fair dealing
o Implied contractual obligation to act in good faith in the fulfillment of each party’s contractual duties.
Define implied contract
A contract that is not expressed but, instead, is created by other words or conduct of the parties involved
define promissory estoppel
o Employee must show that employer made promise on which they reasonably relied o They relied on this promise to their detriment
define constructive discharge
• Occurs when the employee is given no reasonable alternative but to end the employment relationship; hostile work environment
