49 Cards in this Set
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Intentional Torts
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Harm caused by deliberate action. Tort is a violation of a duty imposed by the civil law
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Negligence and Strict Liability
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injuries and losses caused by neglect and oversight rather than deliberate conduct
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Defamation
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False statements that harm someone's reputation
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Libel
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Written defamation
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Slander
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Oral defamation
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Element
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Something the plaintiff must prove to win a lawsuit
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Elements of a Defamation Case
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1. Defamatory Statement - Statement likely to harm another person's reputation.
2. Falseness - The statement must be false.
3. Communicated - The statement must be communicated to at least one person OTHER THAN the plaintiff
4. Injury - The plaintiff must generally show some injury.
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2nd Element of Defamation: Falseness
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The statement must be false.
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3rd Element of Defamation: Communicated
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The statement must be communicated to at least one person other than the plaintiff
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4th Element of Defamation: Injury
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The plaintiff generally must show some injury
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Opinion
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Plaintiff must demonstrate a "false" statement. Opinions are neither true nor false, and is generally a valid defense in a defamation suit.
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Actual Malice
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the defendant knew the statement was false or acted with reckless disregard to the truth.
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False Imprisonment
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the intentional restraint of another person without reasonable cause and without consent. Generally, a store may detain a customer or worker for alleged shoplifting provided there is reasonable basis for the suspicion and detention is done reasonably.
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Battery
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An intentional touching of another person in a way that is harmful or offensive.
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Assault
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occurs when the defendant performs some action that makes the plaintiff fear an imminent battery. "Think fast" with a toaster flying through the air. Even if it misses, it's assault.
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Fraud
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injuring another person by deliberate deception selling real estate with toxic waste underground and not telling the buyer
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Intentional infliction of emotional distress
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extreme and outrageous conduct that causes serious emotional harm. Credit company posing as a hospital trying to locate sheehan based on the lie that his children were injured
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Compensatory Damages
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An amount of money that the court believes will restore him to the position he was in before the defendant's conduct caused injury
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Single Recovery Principle
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requires a court to settle the matter once and for all by awarding a lump sum for past and future expenses
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Economic Damages vs. Non-Economic Damages
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Some states divide damages by measurable and quantitative losses (lost wages, medical expenses, etc.) with non measurable ones (pain and suffering, social pain, etc.)
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Punitive Damages
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intended to punish the defendant for conduct that is extreme and outrageous. "Make an example of it."
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Tortious Interference with a Contract
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1: there was a contact between the plaintiff and a third party 2: the defendant knew of the contract 3: the defendant improperly induced the third party to breach the contract or made performance of the contract impossible, and 4: there was injury to the plaintiff
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Intrusion
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Intrusion into someone's private life is a tort pif a reasonable person would find it offensive Peeping through windows or wiretapping telephones
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Commercial Exploitation
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prohibits the unauthorized use of another person's likeness or voice for commercial purposes running kiera knightly ad without her permission
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Employee At Will
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"Can be fired for a good reason, bad reason, or no reason at all." - 18th-19th centuries
Now, in the absence of a specific legal exception, the rule in the US is that an employee at will can be fired for any reason.
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National Labor Relations Act
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- Prohibits employers from penalizing workers who engage in union activity
- Requires employers to "bargain in good faith" with unions
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Family and Medical Leave Act
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Guarantees both men and women up to 12 weeks of UNPAID leave each year for childbirth, adoption, or a serious health condition of their own or in their immediate family.
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Health Insurance - Consolidated Omnibus Budget Reconciliation Act (COBRA)
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Former employees must be allowed to continue their health insurance for 18 months after leaving their job.
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Wrongful Discharge
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Employer cannot fire a worker for a reason that violates public policy.
It prohibits an employer from firing a worker for refusing to violate the law, performing a legal duty, exercising a legal right, or supporting basic societal values. (this varies from state to state)
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Truth in Hiring
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Alaska Supreme Court held oral promises made to James Eales (physicians assistant) that promised he could work until he is of retirement age - despite being fired.
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Employee Handbooks
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The empl. handbook at BlueCross & Blue Shield stated that employees could be fired only for just cause and then only after warnings, notice, a hearing, and other procedures. The court held that an employee handbook creates a contract.
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Tort Law - Defamation
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- Employers may be liable for defamation when they give false and unfavorable references about a former employee.
- Most states recognize a QUALIFIED PRIVILEGE for employers who give references about former employees. Only liable for false statements known to be false.
- Employers do no…
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Intentional Infliction of Emotional Distress
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Employers who permit cruel treatment of their workers face liability under the tort of intentional infliction of emotional distress.
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Whistleblowing
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Employees who disclose illegal behavior on the part of their employer.
Protected under the following:
- Defrauding the government
- Violations of securities or commodities laws
- Employees of public companies
- Common law
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Defrauding the Government
(False Claims Act)
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Gov't and whistleblower share any recovery. Act also prohibits employers from firing workers who file suit under the statute
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Violations of Securities or Commodities Laws
(Dodd-Frank Act)
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Anyone who provides information to the government about violations of securities or commodities is entitled to a portion of whatever the gov't receives, provided the award tops $1M. If company retaliates against tipsters, they are entitled to reinstatement, double back pay, and attorney's…
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Employees of Public Companies (Sarbanes-Oxley Act of 2002)
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Protects employees of public companies who provide evidence of fraud to investigators. Successful plaintiff must be rehired or given back pay.
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Common Law for Whistleblowers
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Most state courts do not permit employers to fire workers who report illegal activity.
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OSHA (Occupational Safety and Health Act)
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- Employers are under general obligation to keep their workplace free from hazards that could cause serious harm.
- Employers must comply with specific health and safety standards.
- Employers must keep records of all workplace injuries and accidents.
- OSHA may inspect workplaces to e…
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Employee Privacy
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Employers are entitled to their own reasonable expectation of privacy (under common law).
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Off-Duty Conduct (privacy)
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Some states have passed laws permitting employees to engage in any lawful activity while off-duty. In absence of a statute, however, employer does have the right to fire an employee for off-duty conduct.
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Alcohol and Drug Testing
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Gov't employees can be tested for drug and alcohol use only if they show signs of use or if they are in a job where this type of abuse endangers the public. Private institutes are permitted to test for drug and alcohol use as well.
Equal Employment Opportunity Commission (EEOC) prohibi…
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Lie Detector Tests
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Under the Employee Polygraph Protection Act of 1988, employers cannot require or even suggest someone submit to a lie detector test unless it is part of an ongoing investigation into crimes that have occurred.
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Electronic Monitoring of the Workplace
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Electronic Communications Privacy Act of 1986 permits employers to monitor workers telephone calls and email messages if:
1 - the employee consents
2 - monitoring occurs in the ordinary course of business
or 3 - employer provides the email system
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Social Media and employees
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Law is uncertain and varies by state, employees at will should err on the side of caution and consider anything they publish to be public.
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Immigration employment
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Once worker has been hired, the employer must complete an I-9 form within 3 days. The I-9 must be kept for three years after the worker is hired or one year after termination.
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Fair Labor Standards Act
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Regulates wages and limits child labor nationally.
- minimum wage = $7.25 + (time*1.5 for hours > 40)
- Do not apply for managerial, administrative or professional staff.
- Prohibits "oppressive child labor" which means children under 14 may work only in agriculture and entertainment. …
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Workers Compensation
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Provide payment to employees for injuries incurred at work. Employees are not permitted to sue their employers for negligence. (medical expenses and lost wages)
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Social Security
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Began in 1935. Pays benefits to workers who are retired, disabled, or temporarily unemployed and to the spouses and children of disabled or deceased workers. Medical insurance to the retired and disabled.
Federal Unemployment Tax Act provides benefits to unemployed. Fired for just cause …
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LEB 320F: Final