Employment Law: Employee vs. Independent Contractor, Agencies, and Contractual Liabilities, Quizzes of Business and Labour Law

Download Employment Law: Employee vs. Independent Contractor, Agencies, and Contractual Liabilities and more Quizzes Business and Labour Law in PDF only on Docsity! TERM 1 Two Types of Employment Relationships DEFINITION 1 1. Employee2. Independent Contractor TERM 2 Employee DEFINITION 2 My employment is with you. I work for you, and you give me benefits. TERM 3 Independent Contractor DEFINITION 3 Come in, get job done, maybe a specific task, work for many different people. TERM 4 Factors Courts Consider DEFINITION 4 1. What does the contract say?2. How much control does the employer have over the work of the employee?3. Is the worker engaged in an occupation different than that of the employer?4. How long is the person employed for?5. Frequency of payment.6. Is the work being done typically closely controlled by the employer? 7. Is the company supplying tools?8. What degree of skills are required for the job? TERM 5 Tort Liability DEFINITION 5 Employee -- Employer is generally responsible for any torts that occur at work, even if the employee is responsible.Independent Contractor -- Employer not responsible.Exceptions: Abnormally or inherently dangerous activities -- Still liable. Negligently hired independent contractor -- Hired someone who wasn't qualified for the job.Example: If Alex, an employee of Home Depot, hits someone with a box, it is Home Depot's fault. TERM 6 Frolic and Detour DEFINITION 6 If you are doing something so far removed in the scope of employment, the employer would not be responsible for what you did.If you're a Domino's driver and you get in a crash on your way to visit your boyfriend while on the clock, it wouldn't be your employer's fault. TERM 7 Contract Liability DEFINITION 7 Was the worker involved in an agency relationship?Were they an agent of the employer?Agencies are a voluntary relationship.4 Types:1. Actual Authority2. Implied Authority3. Apparent Authority4. Agent by Ratification TERM 8 Actual Authority DEFINITION 8 If you're my agent, I tell you to go sell my car for $5,000. If you sell that car, I am bound by that. Any time someone follows through with a specific order. TERM 9 Implied Authority DEFINITION 9 I didn't specifically tell you to do something, but whatever the task is falls within the general task duties. Example: You are the GM of a restaurant, the owner isn't there, but you run out of a key ingredient. You have an implied authority to go out and buy that ingredient to keep the restaurant running. TERM 10 Apparent Authority DEFINITION 10 You do not have authority. Does not fall within your job duties. No reason to think you are advised to do this. But the 3rd party is led to believe you are able to do this on his behalf.Example: If a homeless person dresses up as a valet at a hotel, someone gives him keys, and he steals the car.Example: Former employees; if the client doesn't know the person got fired. TERM 21 Duty of Obedience DEFINITION 21 Obey reasonable commands as an agent. If your principle asks you to do something, you should do it unless it is illegal. TERM 22 Duty of Care DEFINITION 22 You should do research when needed. Make sure you're getting the best quality of things. TERM 23 Two Duties of the Principle to the Agent DEFINITION 23 1. Compensation2. Indemnification TERM 24 Compensation DEFINITION 24 Salary; whatever the principle agrees to give to the agent. TERM 25 Indemnification DEFINITION 25 Repay agent for the costs due to his/her commands TERM 26 Termination of Principle and Agent's Relationship DEFINITION 26 Relationships are totally voluntary. If someone doesn't want to work for them anymore, they can cut ties.Difference between terminating the agency contract and terminating the employee contract. If you have a 3-year contract, the agency can be terminated, but the employee doesn't necessarily have to be terminated. This heavily depends on what the contract says.Lapse of Time -- Contracts will usually say how long the person represents them.Purpose Achieved -- If the goal has been fulfilled. TERM 27 Termination Con'd DEFINITION 27 By operation of law -- Certain circumstances where the agency will automatically end.If someone diesSomeone goes insaneDestruction of subject matter -- House burns downBankruptcy TERM 28 Relationships as an employee DEFINITION 28 Two Types:1. At-Will Employee2. Fixed-Term Employee TERM 29 At-Will Employee DEFINITION 29 No specified length of time, employment can end at any time. People can leave or get fired with little or no notice. Neither side is committed for an extended period of time.In history, typically you could be fired at any time, but there are something you can't be now.1. If you have to fulfill certain public duties, like jury duty2. Exercising their statutory rights -- Minimum wage and family and medical leave.3. Whistleblowing TERM 30 Fixed-Term Employment DEFINITION 30 Hired for a specific amount of time, like athletes.Guaranteed contract -- Even if the person blows out their knee or starts to suck.As long as both sides are honoring their agreement, the contract stands. TERM 31 Employment and Contracts DEFINITION 31 If you're hired as a fixed-term employee, and you are hired an as agent, if you have a 5-year contract but want to terminate it after a year, you would still have to pay the person for 4 more years.If you're hired as an at-will employee, and you are hired as an agent, if you have a 5-year contract but what to terminate it after a year, you will no longer have to pay that person. TERM 32 Fair Labor Standards Act -- FLSA DEFINITION 32 One of the basic protections for employees in the country.Provides certain basic rights to employees to protect them against their employers.Employers must pay federal minimum wage.Also applies to hours -- If you work more than 40 hours, you get overtime.Exceptions:If you're paid tips, you can get paid less.If you're seasonal, you can get paid less. TERM 33 Warn Act DEFINITION 33 Worker Adjustment and Retraining Notification ActIf you know that you are going to fire 10,000 employees in 3 months, you have to give employees prior notice.Applies to any company that has 100 or more employees.Must get notice if 60 days in advance if:1. Plant Closing (if 50 or more people will lose their job)2. Mass Layoff -- Either firing more than 500 or 1/3 of your employees within a 30 days period. If you break this, $500 fine per day short, plus pay each employee for each day before 60 days. TERM 34 Family Medical Leave Act DEFINITION 34 Applies to a company with 50 or more employees.Must be hired for at least 12 months and during that time worked at least 1,250 during that time.12 weeks per year for unpaid leave for: Birth of a child, immediate family member or yourself with a medical condition.Only 12 weeks off in a 12 months period. TERM 35 OSHA DEFINITION 35 Occupational Health and Safety Act.Guarantees good working conditions.Protected on a case by case basis TERM 46 Desparit Impact Defenses DEFINITION 46 Business Necessity Defense -- Is this a business necessity or not?Firefighters: You must be able to lift 300 lbs -- This will have an impact, but this is essential for the job.Even if this eliminates some races, the court may say it is okay. TERM 47 Retaliation DEFINITION 47 Not necessarily that you've been discriminated against, but your employer has punished you for specifically filing a discrimination case, or giving testimony in a discrimination case. TERM 48 Potentially Challangeable Employment Practices DEFINITION 48 Testing and Education Requirements -- Degrees or tests given to applicants. If it's for a CEO position, more likely to be fine.Testing -- If 90% of males get hired even if only 50% of the applicants were males? Depends on what the questions were. TERM 49 Religious Beliefs DEFINITION 49 If someone has a beard for their religion, but employers do not allow it. But in places like food services this may not be discriminatory TERM 50 Work Scheduling Issues DEFINITION 50 Different holidaysReasonable Accommodation -- If there is some way that the business can make an exception on this person or group of people without too much burden.Defenses are usually only for sanitation and safety (or legitimate business needs) TERM 51 English Speaking Requirements DEFINITION 51 May discriminate on national origin.Must be reasonably necessary for them to speak English.Anywhere you would need to interact with mostly English speaking people. TERM 52 Affirmative Action DEFINITION 52 Work-related and educational issues.Not automatically illegal to give affirmative action in the work place.Most courts say quotas are illegal. TERM 53 Gender Discrimination DEFINITION 53 Sexual Harassment -- Disfavors the person being harassed.Quid Pro Quo -- This for that. "I will hire you if you have sex with me"Hostile Work Environment -- In general there is a sexually charged atmosphere. Super male dominated where women feel uncomfortable. Must be severe and affecting.Pregnancy Discrimination -- Not hire someone based on thisEqual Pay Act -- Illegal to pay men more than women. TERM 54 Age Discrimination in Employment Act DEFINITION 54 Prohibits against people for being too old NOT TOO YOUNG.For people 40 years or older.Companies cannot have a mandatory age.Exception: If you are an executive you can be forced to retire at 65 as long as you get paid at least $44,000 a year in benefits.Only counts for employers with 20 or more employees.Two Cases:1. Desparit Treatment2. Desparit Impact TERM 55 Desparit Treatment DEFINITION 55 Directly discriminating against you.Main Defense -- BFOQMost courts never consider age as a requirement. TERM 56 Desparit Impact DEFINITION 56 Anything that might be secondhand.Vision requirements.Computer skill requirements.Business necessities are usually okay.Most cases are ones being discriminated against directly. TERM 57 Americans with Disabilities Act DEFINITION 57 Any employer with 15 or more employees.Not just employment relationships, but we will focus on the business side.Prohibits an employer on 3 Grounds1. Currently have a disability2. Past disabilities3. Discriminating based on thinking someone has a disability even though they don't.Cannot be temporary -- Must be 6 months or more disability.Employer must reasonably accommodate the employee. TERM 58 Disability DEFINITION 58 Any physical or mental impairment that substantially limits 1 or more major life activities.Walking, talking, seeing, hearing, sleeping etc.